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WAR SHIPS IN NEUTRAL PORTS

435

withstanding the German protest, the Norwegian decree was never modified, although by way of reprisal the German policy of sinking Norwegian vessels is said to have been greatly extended after the adoption of the new rules.1

The Swedish government adopted substantially the same policy as that of Norway and excluded belligerent war submarines from passing through and remaining in Swedish territorial waters (Decree of July 19, 1916). The frequent use by war ships of both Great Britain and Germany of the territorial waters of Sweden, which greatly added to the Swedish burden of patrolling those waters, led the government to mine the waters of Kogrund Channel and to close them to all except Swedish vessels. Against this measure the governments of the Entente powers protested, as the German government had protested against the Norwegian decree respecting submarines, this on the ground that the Swedish order closed the only route by which allied vessels could pass into and out of the Baltic without being exposed to destruction by German war ships. The protest also added that the Swedish government had left open a route accessible only to Swedish and German vessels, thus discriminating against the Entente powers.2 The Swedish

1 Cf. an article by Dr. A. F. Frangulis entitled le Cas de la Norvège et le Droit des Gens, 45 Clunet, pp. 563 ff. The Norddeutsche Zeitung of October 20, 1916, published an official communiqué which charged that the decree of the Norwegian government was directed mainly against Germany and as such was in contravention of the spirit of true neutrality, and the German minister at Christiania was instructed to make "express reserves in respect to the attitude of the Norwegian government."

* Text of the note in 24 Rev. Gén. de Droit Int. Pub., pp. 232-233. The protest also complained that the Swedish government made a distinction between commercial and war submarines, a distinction which, it was said, was not well founded, since it was difficult to distinguish the one from the other at sea. The Swedish authorities would therefore hesitate to attack a German submarine of any character found in its waters, through fear of committing a mistake, whereas they would never hesitate to attack a British or French war submarine, for the reason that it was well known that neither Great Britain nor France possessed any commercial submarines. In effect, therefore, the decree would result to the advantage of Germany. But, as M. Perrinjaquet remarks (24 Rev. Gén. de Droit Int. Pub., p. 233), the allied position in regard to the identity of the two classes of submarines was not well founded. Their contention, however, in regard to the closing of the waters of the Kogrund Channel rested on a sounder basis, since the result was to discriminate against the allies in favor of Germany, and it is doubtful whether the Swedish government was within its rights in virtually closing a strait connecting two open seas, even if the strait comprises the territorial waters of the neutral. Cf. Perrinjaquet, op. cit., p. 234, Despagnet-de Boeck, p. 630, and 43 Clunet, p. 1716.

government sharply denied the allied charge of partiality toward Germany and declared that it must refuse to enter into a discussion as to the sincerity and impartiality of its neutrality policy.1

2

The Dutch neutrality declaration of August 4, 1914, prohibited all war ships and ships assimilated thereto from entering Dutch territorial waters except when forced to enter by stress of weather or damages, and this was interpreted to include submarines. The king of Spain in June, 1917, issued a decree forbidding all submarines of whatever kind belonging to belligerent powers from navigating Spanish territorial waters or from entering Spanish ports upon pain of being interned until the end of the war. Submarines of neutral powers, however, were allowed to enter on condition that they navigated on the surface with their colors visibly displayed.3

There is a growing opinion in favor of the view that neutrals should be required to prohibit belligerent war vessels of enemy character from entering their ports or making use of their waters except where considerations of humanity require such entry or use, and the results of the recent war will probably strengthen the opinion. Had this measure been adopted at the outbreak of the recent war by all neutrals, as it was subsequently adopted by a few of the powers, many irritating controversies would

1 Text of the Swedish note of September 9, 1916, in 24 Rev. Gén. de Droit Int. Pub., pp. 233-234, n. 2.

Text of the Declaration in Int. Law Topics, 1916, pp. 61 ff. See also Grotius Annuaire for 1916, p. 101, and 24 Rev. Gén., Docs., pp. 110-114, 186.

The decree was intended to prevent a repetition of such acts as that which occurred at Cadiz where a German submarine took refuge and was later escorted out of the port by Spanish torpedo boats. Text in Supp. to Amer. Jour. of Int. Law, Vol. XI, p. 177.

Cf. the French writer M. Perrinjaquet in 24 Rev. Gén. de Droit Int. Pub., p. 230. Prior to the recent war, however, the majority of French jurists looked with disfavor on the proposition to forbid belligerent war ships from revictualling, taking supplies of coal, and making repairs necessary to enable them to put to sea, regardless of what may have been the cause of the injuries received. Cf. the report of M. Lapradelle to the Institute of International Law in 1910 (Annuaire, 23, pp. 100 ff.) and the discussion on the same (p. 397). Cf. also Lapradelle's article entitled La Nouvelle Thèse du Refus de Charbon au Belligérants dans les Eaux Neutres, in the Rev. Gen. de Droit Int. Pub., Vol. XI, pp. 531 ff.; Dupuis, same Revue, Vol. XVI, p. 581, and Despagnet-de Boeck, pp. 1215 ff. Cf. also the stringent rules adopted by the American Institute of International Law at Havana in 1917 (arts. 12-15). Cf. also an article entitled Du Régime à imposer aux SousMarins dans les Eaux Territoriales et Ports Neutres, in 44 Clunet, pp. 96 ff.

CASE OF THE DEUTSCHLAND

437 have been avoided and the requirements of a true neutrality would have been more fully met.

§ 565. Commercial Submarines, Case of the Deutschland The visit of the German commercial submarine Deutschland to the United States in July, 1916, raised the question as to the status of such craft in neutral ports. A thorough examination of the build and equipment of the submarine was made by order of the department of state, and it was found that it was not constructed with a view to conversion into a war vessel, that it carried no torpedoes or rapid-fire guns or weapons of any kind even for defensive purposes, and that its voyage was purely a commercial venture. Under these circumstances the government ruled that the submarine was an inoffensive merchant vessel and as such was entitled to the usual privileges accorded belligerent merchant vessels in neutral ports. It was accordingly permitted to remain in port without restriction, to discharge its cargo and take on a new cargo and to clear when it was ready to depart. The question thus presented was unique and without precedent. The only circumstance which distinguished the submarine from a merchant ship, strictly speaking, was its ability to navigate below the surface, thus enabling it, if it chose, to evade the customs laws and the port regulations. Since, however, it conformed strictly to those laws and regulations, the American government saw no reason for treating it differently from regular merchant craft. In its ruling, however, the government took occasion to announce that its decision in this particular case was not to be regarded as a precedent and that each such case arising in the future would be decided on the basis of the facts. The decision appears to have been a correct one under the circumstances, although it caused some irritation in England and France. It is understood that the British and French embassies at Washington made pro forma representations against treating the submarine as a merchant vessel, this on the ground that it was alleged to be potentially a war vessel, although designed and used as a merchant ship. But the investigation showed that this contention

1 Subsequently the Deutschland made another visit to the United States and took back to Germany a cargo of 360 tons of nickel, 180 tons of rubber, and a quantity of other goods which were on the British list of contraband, and which were said to have been purchased in the United States by agents of the German government.

was unfounded. It will be recalled that the allied memorandum referred to above (communicated to neutral governments a month later) urged them to exclude from their ports all submarine vessels whatever the purpose to which they are put; that is, they should forbid entrance to commercial as well as war submarines. But the American government, as stated above, refused not only to recognize any distinction between commercial submarines and regular merchant vessels but also to apply any different rules to war submarines than were applicable to other war vessels.2 The Dutch government also appears to have adopted the same course and treated commercial submarines as it treated regular merchantmen.

566. Taking of Prizes into Neutral Ports. In several instances neutral governments found themselves embarrassed by the action of belligerent men-of-war in bringing prizes into their ports. In March, 1915, the German cruiser Prinz Eitel Friedrich brought the French sailing vessel Jean into a Chilian port as a prize of war and held it there for eight days, during which time the captor was engaged in trans-shipping coal from the vessel to his own ship. The government of Chili protested against this violation of its neutrality and offence against its sovereignty as being contrary to articles 12 and 21 of the 13th Hague convention. A like protest was made against the conduct of several German men-of-war in bringing into the

1 As already mentioned in the preceding section, the British and French governments in their protest against the Swedish ordinance excluding war submarines from its waters complained that it made a distinction between war and commercial submarines, a distinction which, it was argued, was not justified in view of the difficulty of distinguishing between the two types of submersibles.

Judge Atherley-Jones in a paper read before the Grotius Society of London on March 20, 1917, argued that the attempt to distinguish between commercial and war submarines is "from the belligerent's point of view wholly impracticable." The ability of a submarine to submerge, he says, makes it impossible for a naval commander to visit and search it with a view to verifying its nationality or determining the nature of the service in which it is engaged. Moreover, its ability to run a blockade would make it impossible for a belligerent to maintain an effective and therefore legal blockade. As to the Deutschland it was, he contends, in fact a public vessel in the service of the German government, and its voyage to the United States was in the interest of the State and was undertaken at the instance of the executive. It should, therefore, have been treated by the American government as a war vessel. Pubs. of the Grotius Society, Vol. III, p. 40. But compare Reeves in XI Amer. Jour. of Int. Law, 149 who maintains that the status of a commercial submarine and an ordinary merchant vessel is the same, although the neutral may require the former to navigate its waters on the surface.

Alvarez, op. cit., pp. 231–232.

CASE OF THE APPAM

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Chilian port of Juan Fernandez the French steamer Valentine, the Norwegian steamer Helicon, and the American steamer Sacramento as prizes and holding them there for a period of seven days, during which time their cargoes of coal and provisions were transferred to the vessels of their captors. This act was denounced by the Chilian government as a flagrant violation of the neutrality of the country, all the more reprehensible because it was committed with premeditation in the waters of an island over which, by reason of its distance from the mainland, the Chilian authorities were unable to exercise the surveillance which they were able to exercise over their continental ports. The ships were brought in for other purposes, it was asserted, than sequestration, the real end being to make the ports of the island a depot of prizes and a base of naval operations in violation of articles 5 and 23 of the 13th Hague convention. The French government on its part addressed a note to the Chilian government demanding reparation for damages sustained on account of the capture and loss of the Valentine, this on the ground that the government of Chili was responsible, since it had tolerated the bringing in and the holding of the ship as a prize of war in its territorial waters. The Chilian government, in a reply of July 19, 1915, to the French demand, stated that it had conformed strictly to the provisions of article 25 of the 13th Hague convention by the heavy sacrifices which it had made in exercising a strict surveillance over its ports and waters in order to prevent violations of its neutrality, and it called attention to the distance of the island from its coasts, the lack of communications therewith, and the consequent difficulties that were encountered in compelling the war ships of the contending belligerents to respect the neutrality of the island. The Chilian government, it was asserted, had exercised due diligence to prevent the acts complained of and it could not, therefore, be held responsible for infractions which it had been unable to prevent.1

§ 567. Case of the Appam. A more notable and more widely discussed case was that of the Appam, a British merchantman which had been captured off the African coast by a German "raider" and brought into the port of Newport News, Virginia, in February, 1916, by a prize crew which had been put aboard

1 Alvarez, ch. 9.

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