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for a naval commander,
Commander Kimball. These persons were natives of the country, in transit, and on board an American ship entering a port of the country without intent to land. The 33 men in question were expelled from Nicaraguan territory, and it is apprehended that they may attempt to reenter Nicaraguan jurisdiction. Many, if not most of them are
understood to be citizens of the United States. Proper action Effort should be made to warn such persons in time of
the risk they run in reentering Nicaragua, and if occasion require, they might be temporarily received on an American naval vessel before they land, and before any process of arrest under due warrant of law be attempted against them. If, however, they actually land, or are arrested by judicial authority on a merchant ship in port before endeavoring to land, the naval commander could not claim their release or delivery to him, but would have to limit his action to the exercise of good offices so far as possible, in conjunction with the consular representatives of the United States, to secure for them fair and open process of law, with every opportunity for defense, and if convicted, leniency of treatment.
SUBMARINE CABLES IN ENEMY COUNTRY.
SUBJECT TO DAMAGE AS INCIDENT OF WAR.
(Opinions of Attorney-General of United States, Vol. XXII, p. 315.)
The following is a portion of an opinion rendered by the Attorney-General of the United States “relative to a claim of the British Eastern Extension Australasia and China Telegraph Company for damages and losses alleged to have been sustained in consequence of the cutting of its cable at Manila during the war with Spain and in response to a request for an opinion as to whether this Government is in any way liable for those damages and losses :"
Property of a neutral permanently situated within the territory of an enemy is, from its situation, liable to damage from the lawful operations of war, which this cutting is conceded to have been, and no compensation is due for such damage.
It is said, however, that this rule has never been applied to a cable; that the whole utility of the cable over many
No ground for 'indemnity for cutting of neutral cable in enemy waters.
miles is as much destroyed by cutting it in territorial waters as by cutting it on the high seas, which last act, it is claimed, would undoubtedly entitle the owners to compensation; and that the United States admiral did not merely aim at preventing the use of the cable by the Spaniards, but also at using it himself.
Do these reasons withdraw this property from the rule which has been stated?
In the first place, that is a rule applying to property of a neutral which he has placed within the territory of our enemy, which property our necessary military operations damage or destroy. It takes no account of the character of the property, but only of its location, and no account of any motives of its owner or of the military officer who finds it necessary to meddle with it in hurting the enemy. He sees it across his path and brushes it away, and the rule cited says that the owner, by putting his property in the country, took the chance of a war against it and of all lawful military acts to carry the war to a successful issue.
It argues nothing that cables have not heretofore been the subject of any discussion of this rule. The same might be said of many kinds of property, either because they happened not to be injured or because the rule was so well understood that a discussion was deemed superfluous. It is necessary to show why the cable property is exempt from the rule, and not that the rule has ever been applied to it.
I am of the opinion, therefore, that upon the law of the case there is no ground for indemnity.
CASE OF THE BUNDESRATH IN THE SOUTH AFRICAN WAR.
(British Parliamentary Paper, Africa No. 1, 1900, Cd 33.)
During the South African war the German mail steamer Bundesrath, bound for Delagoa Bay, was reported from Aden as suspected of carrying ammunition for the enemy, also with carrying persons intending to be combatants against the British forces in South Africa. The Bundesrath was seized at a later date by H. M. S. Magicienne and brought into Durban. The mails of the Bundesrath were released and turned over to the German vessel of war Condor. No contraband of war being found on the Bundesrath, the vessel and cargo were released. In the correspondence that arose concerning this case the positions of the British and German Governments were stated in the following letters:
Count llatzfeldt to the Marquess of Salisbury. (Received
Views of German Government.
GERMAN EMBASSY, LONDON, January 4, 1900. My LORD, With reference to the seizure of the German steamer “Bundesrath” by an English ship of war, I have the honor to inform your excellency, in accordance with instructions received, that the Imperial Government, after carefully examining the matter and considering the judicial aspects of the case, are of opinion that proceedings before a Prize Court are not justified.
This view is grounded on the consideration that proceedings before a Prize Court are only justified in cases where the presence of contraband of war is proved, and that, whatever may have been on board the “Bundesrath,” there could have been no contraband of war, since, according to recognized principles of international law, there can not be contraband of war in trade between neutral ports.
This is the view taken by the British Government in 1863 in the case of the seizure of the “Springbok" as against the judgment of the American Prize Court, and this view is also taken by the British Admiralty in their “Manual of Naval Prize Law" of 1866.
The Imperial Government are of opinion that, in view of the passages in that Manual: “A vessel's destination should be considered neutral, if both the port to which she is bound and every intermediate port at which she is to call in the course of her voyage be neutral," and, the destination of the vessel is conclusive as to the destination of the goods on board,” they are fully justified in claiming the release of the Bundesrath” without investigation by a Prize Court, and that all the more because, since the ship is a mail-steamer with a fixed itinerary, she could not discharge her cargo at any other port than the neutral port of destination.
In view of what is stated above, I have the honor to request your Excellency, in accordance with instructions from the Imperial Government, and with the reservation of what may further be decided, to order the release of the “Bundesrath,” and since she was seized more than a week ago and 'the Imperial Government have not yet been informed of the reasons for the seizure, I should be obliged if I could be favored with a reply at your earliest convenience. I have, etc.,
The Marquess of Salisbury to Sir F. Lascelles.
FOREIGN OFFICE, January 10, 1900. Sir, I transmit to your Excellency herewith the translation of a note which I have received from the German Ambassador at this Court with regard to the seizure of the German steamer “Bundesrath” by Her Majesty's ship “Magicienne," on suspicion of carrying contraband of war destined for the South African Republics.
In this note Count Hatzfeldt states that the German Government, after careful examination of the judicial aspects of the case, are of the opinion that proceedings before a Prize Court are not justified. They base this view on the doctrine that, according to the recognized principles of international law, no question of contraband of war arises in trade between neutral ports. In support of this argument they cite the view which they state “to have been taken by Her Majesty's Government in 1863 in the case of the seizure of the “Springbok," as against the Judgment of the United States' Prize Court, and that which they consider to be taken “by the British Admiralty in their Manual on Naval Prize Law' of 1866."
Before examining the doctrine thus put forward by the German Government, it will be desirable to remove some errors of fact in regard to the authorities which they cite.
It is not the case that the British Government in 1863 raised any claim or contention against the Judgment of the United States' Prize Court in the case of the “Springbok.” On the first seizure of that vessel, and on an ex parte and imperfect statement of the facts by the owners, Earl Russell, then Secretary of State for Foreign Affairs, informed Her Majesty's Minister at Washington that there did not appear to be any justification for the seizure of the vessel and her cargo, that the supposed reason, namely, that
Views of British Government.
Views of Brit- there were articles in the manifest not accounted for by
the captain, certainly did not warrant the seizure, more especially as the destination of the vessel appeared to have been bonâ fide neutral, but that, inasmuch as it was probable that the vessel had by that time been carried before a Prize Court of the United States for adjudication, and that the adjudication might shortly follow, if it had not already taken place, the only instruction that he could at present give to Lord Lyons was to watch the proceedings and the Judgment of the Court, and eventually transmit full information as to the course of the trial and its results.
The Prize Court of the United States, in a long and considered Judgment, decreed confiscation both of the vessel and the cargo. The owners applied for the intervention of Her Majesty's Government, and forwarded in support of their application an opinion by two English Counsel of considerable eminence.
The real contention advanced in this opinion was that the goods were, in fact, bonâ fide consigned to a neutral at Nassau. It cannot, therefore, be adduced in support of the doctrine now advanced by the German Government. But Her Majesty's Government, after consulting the Law Officers of the Crown, distinctly refused to make any diplomatic protest or enter any objection against the decision of the United States' Prize Court, nor did they ever express any dissent from that decision on the grounds on which it was based.
The volume which is described in Count Hatzfeldt's note as "The Manual of Naval Prize Law of the British Admiralty,” and from which Count Hatzfeldt quotes certain phrases as expressing the view of the Lords Commissioners on this subject, is, in fact, a book originally compiled by Mr. (now Sir Godfrey) Lushington, which was published under the authority of the Lords Commissioners as stating in a convenient form the general principles by which Her Majesty's officers are guided in the exercise of their duties; but it has never been asserted and can not be admitted to be an exhaustive or authoritative statement of the views of the Lords Commissioners. The preface to the book states that it does not treat of questions which will ultimately have to be disposed of by the Prize Court, but which do not concern the officer's duty of the place and hour. The directions in this Manual, which for practical purposes were sufficient in the case of