by the captor and which was assisted by the passengers and crew of the Appam who were compelled to aid in keeping guard and in navigating the ship. Upon the arrival of the Appam the German ambassador at Washington informed the secretary of state of the intention of the German prize master to remain with his prize in American waters until further notice, claiming the right to do so under article 19 of the Prussian-American treaty of 1799. He also requested the internment in the United States during the remainder of the war of certain of her passengers on the ground that they had offered resistance to the captors. This request was refused by the American authorities, and the ship's crew and passengers were set at liberty. The German prize crew, however, were retained on board the ship virtually as prisoners and the prize-master was required to give his parole not to leave the vessel except for the transaction of official business with the customs authorities. The British ambassador at Washington in the meantime had made a formal demand upon the American government that instructions be given for the release of the Appam to the British owners, on the ground that the status of the vessel was determined not by the Prussian-American treaty but by article 21 of the 13th Hague convention which lays down the rule that "a prize may be brought into a neutral port only on account of unseaworthiness, stress of weather or want of fuel or provisions." This demand was shortly followed by the filing of a libel against the Appam in the United States district court by the British owners. Thereupon the German ambassador addressed a communication to the secretary of state denying that the court had any jurisdiction of the case; this denial was based on article 19 of the Prussian treaty and the inoperation of the 13th Hague ✓ convention in consequence of its non-ratification by the British government. The communication further added that since the Appam was flying the naval flag of the German government and belonged to its captors as a lawful prize, no neutral court could lawfully take cognizance of the case with a view to wresting the prize from its captors. In a communication of March 2 which was not made public until May 17 out of respect to the

1 The Appam had on board 116 of her own passengers, a crew of 155 persons, a German prize crew of 22 persons, and 138 seamen who had been taken from other vessels captured or sunk by the Appam's captor.

CASE OF THE APPAM

441

court which had already taken jurisdiction of the case, the secretary of state informed the German ambassador that in his opinion article 19 of the treaty of 1799 as revived in 1828 applied only to prizes brought into American ports by vessels of war and not to those like the Appam which were brought in by a prize master and crew, unaccompanied by a ship of war. Furthermore the Appam did not fall within the evident meaning of article 19, which contemplated only temporary asylum for vessels of war accompanying prizes while en route to places named in the commander's commission and not the deposit of spoils of war in an American port. The Appam therefore was entitled "only to the privileges usually granted by maritime nations to prizes of war, namely to enter neutral ports only in case of stress of weather, want of fuel and provisions, or necessity of repairs, but to leave as soon as the cause of their entry has been removed." 1

This view of the status of the Appam was reached by the district court. The court held that the case was governed by articles 21 and 22 of the 13th Hague convention of 1907 and not by the Prussian-American treaty. These articles, the court added, did not embody new rules, but were merely declaratory of the existing law of nations and as such were binding independently of the status of the convention of which they formed a part. True, Great Britain had not ratified the convention, but most of the other powers, some forty-three in number, including Germany and the United States, had ratified it. Moreover, the principle embodied in the two articles was entirely in accord with the policy of both the United States and Germany. The court declared that it was now the generally accepted doctrine among enlightened nations that their ports could not be allowed as places of asylum or permanent rendezvous for the prizes of belligerents. To do so would be to involve them in conflict with nations with whom they were at peace. The conclusion of the court was

"that the manner of bringing the Appam into the waters of the United States, as well as her presence in those waters, constitutes a violation of the

1 The correspondence between Secretary Lansing and the British and German ambassadors regarding the status of the Appam may be found in Dip. Cor. with Bellig. Gov'ts relating to Neutral Rights and Duties, Dept. of State, European War, No. 3, pp. 331-344.

neutrality of the United States; that she came in without bidding or permission; that she is here in violation of the law; that she is unable to leave for lack of a crew, which she cannot provide or augment without further violation of neutrality; that in her present condition she is without a lawful right to be in and remain in these waters; that she, as between her captors and owners, to all practical interests and purposes, must be treated as abandoned and stranded upon our shores, and that her owners are entitled to restitution of their property, which this country should award irrespective of the prize court proceedings of the Court of the Imperial Government of the German Empire, and it will be so ordered." 1

Upon appeal to the United States Supreme Court the decision of the lower court was affirmed.2

The decision was entirely in accord with the letter and spirit of the Hague convention, as well as the policy of modern nations, especially the United States and Great Britain. It is clear that the Hague Conference intended to prohibit the taking of prizes into neutral ports except in cases of unseaworthiness, stress of weather, or lack of fuel or provisions, and that when taken in for any of these reasons they were bound to leave as soon as the necessity for their entrance had passed. No such necessity

1 Already on May 11 the German Imperial prize court at Hamburg had rendered a decision in the case of the Appam holding that it had been legally captured, although of course the court expressed no opinion on the question as to the right of the captors to take it into a neutral port and lay it up until the end of the war.

Hans Berg, Prize Master, etc., v. British and African Steam Navigation Co., decided March 6, 1917. In its opinion Mr. Justice Day, speaking for the Supreme Court, said: "The principles of international law recognized by this government, leaving the treaty aside, will not permit the ports of the United States to be thus used by belligerents. If such use were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes, captured by one of the belligerents, might be safely brought and indefinitely kept."

'As to the authority and practice cf. Dana's Wheaton, § 391; Bernard, History of British Neutrality, pp. 137-141; Hall, Int. Law, 5th ed., p. 618; Risley, Laws of War, p. 176; Westlake, Int. Law, Pt. II, p. 215; Bluntschli, Droit Int. Cod., note to § 778; Stockton, Outlines of Int. Law, p. 408, and Scott, The Peace Conferences of 1899 and 1907, Vol. I, pp. 645-646. The practice of the past and the opinions of the authorities are reviewed by Mr. F. R. Coudert in his brief for the libellants in the case of the Appam, pp. 17 ff. As to the case of the Appam cf. an article by C. D. Allin in the Minnesota Law Review for January, 1917, a paper by H. H. L. Bellot in the Pubs. of the Grotius Society, Vol. II, pp. 11 ff. An article by F. R. Coudert in 11 Amer. Jour. of Int. Law, pp. 302 ff., and an article by E. M. Borchard, ibid., pp. 270 ff.

Art. 23 of the thirteenth Hague convention permits neutrals to allow prizes to be brought into their ports and roadsteads to be sequestrated pending the decision of a prize court. Both Great Britain and the United States, however, reserved their ratification of this article, and the German prize code, although embodying textually arts. 21 and 22, makes no mention of art. 23. It is clear

HOVERING OFF NEUTRAL PORTS

443

caused the Appam to enter à port of the United States; its entrance therefore was a violation of the neutrality of the country and the captor could not hold it there until the end of the war. It remained the property of the original owners.

§ 568. The Hovering of War Ships off Neutral Ports. During the early years of the war Great Britain maintained a somewhat elaborate naval patrol off the principal ports of the Atlantic coast of the United States for the purpose of intercepting German war ships which might attempt to enter such ports and of preventing the escape of enemy merchant vessels laid up therein. The patrolling ships, in general, scrupulously kept outside the three-mile limit and rarely molested neutral vessels. In several instances, however, complaint was made in the United States that neutral vessels were followed within the three-mile limit by British war ships and that in other instances they were subjected to an annoying surveillance. One such case was that of the Danish merchantman Vinland, which was alleged to have been followed by a British war ship for some distance down the coast within American territorial waters. In reply to a representation of the department of state the British ambassador denied that the war ship in question ever came within the territorial waters of the United States and asserted that the commanders of British war vessels had explicit instructions to keep outside such waters. In a communication of December 16, 1915, to the British ambassador, Secretary Lansing stated that the American government had "always regarded the practice of belligerent cruisers patrolling American coasts in close proximity to the territorial waters of the United States and making the neighborhood a station for their observations as inconsistent with the treatment to be expected from the naval vessels of a friendly power in time of war and has maintained that the consequent menace of such proceedings to the freedom of American commerce is vexatious and uncourteous to the United States." The British ambassador replied that the objection raised by the secretary of state appeared to rest on a claim to distinguish between different parts of the high seas,

that these and other powers regarded the article as contrary to the spirit of true neutrality, and so far as is known, no such permission has ever been granted by any neutral government to a belligerent. Cf. a review of the practice in Coudert's brief referred to above, pp. 10 ff.

in one of which it was legitimate to carry on belligerent operations, while in the other it was not, a distinction which was unknown to the law of nations. The ambassador took occasion also to remind the secretary of state that during the Civil War in the United States the American naval forces maintained a system of patrol and surveillance in the neighborhood of Bermuda which was no different in character from that against which the secretary was complaining; and indeed American war ships were charged with having maintained "a system of cruising" within the territorial waters of Bermuda. Extracts from the official records of the navy were submitted in support of the charge. The ambassador further called attention to the presence of the large number of enemy merchant ships sheltering in American ports, to prevent the escape of which it was necessary for the British government to maintain cruisers in a position where they would be able to intercept any vessels that might attempt to leave. Finally, it was added that neutral ships were known to have carried supplies from American ports to enemy war ships on the high seas. This was another reason why British cruisers were bound to keep a close and constant watch over ships departing from American ports. The secretary of state did not deny that British war ships which were engaged in cruising off the American coast outside the three-mile limit were within their legal rights, but his objections to the practice were based upon the "irritation which it naturally causes to a neutral country"; it was an "inevitable source of annoyance and offence." As to the charges that American cruisers were guilty of a similar practice off the coast of Bermuda during the Civil war, the secretary asserted that the circumstances were very different and the acts alleged were far less offensive. The cruising complained of then took place in the vicinity of small islands near the American coast which were being used as a rendezvous for vessels notoriously engaged in running the blockade, whereas in the present case the British cruisers were patrolling off the great commercial ports of the United States from which routes diverge to all parts of the world. As to the circumstance that enemy merchant vessels in large numbers were refugeeing in American ports and had to be closely watched, the secretary reminded him that the duty of preventing them from escaping had been successfully discharged by the American government.