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Violations of Maritime Law by The Allied Powers During The World War

Published online by Cambridge University Press:  04 May 2017

E. G. Trimble
E. G. Trimble*
Affiliation:
New York University
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Extract

Immediately after the outbreak of the World War in 1914, Secretary of State Bryan wisely approached the belligerent governments proposing that both sides agree to conduct their naval warfare in accordance with the rules embodied in the Declaration of London. This document was drawn up at the London Naval Conference called by Great Britain in 1908, and was signed by the delegates of all the nations represented. The conference agreed that the rules contained in the document “correspond in substance with the generally recognized principles of international law.” The Declaration never became legally binding on the nations, however, having failed of ratification by the British Government itself. Legally, therefore, Great Britain was not bound by it in 1914, except in so far as it embodied preexisting rules of law.

Type
Research Article
Information
American Journal of International Law , Volume 24 , Issue 1 , January 1930 , pp. 79 - 99
Copyright
Copyright © American Society of International Law 1930

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References

1 Arthur Cohen, The Declaration of London, p. 70.

2 Secretary of State to Ambassador W. H. Page, Special Supplement to this Journal , Vol. 9, p. 1.

3 Ambassadors Gerard and Penfield to Secretary of State, ibid., 182.

4 Minister for Foreign Affairs to Ambassador W. H. Page, ibid., 3.

5 Ibid., 7.

6 Secretary of State to Minister Chas. Pinckney, American State Papers, Foreign Relations, Vol. 1, p. 239.

7 The Mercurius (1798), 1 Rob. 80; also The Nancy (1809), 1 Acton, 57.

8 The Frau Ilsabe (1805), 4 Rob. 52

9 The Success (1812), 1 Dods. 131

10 It is often said that contraband trade is not illegal but merely subject to risk of seizure and confiscation. This would result in the anomaly of penalizing the exercise of a legal privilege. The writer prefers Professor Moores view that it is illegal because penalizable. See John Bassett Moore, International Law and Some Current Illusions, p. 4. .

11 Moore, John Bassett, International Law and Some Current Illusions, p. 28 Google Scholar.

12 The Jesus. For report of the case, see Woolseys, T. D.,article on Continuous Voyage,this Journal , Vol. 4, p. 832 Google Scholar.

13 The William (1806), 5 Rob. 383. Also The Essex discussed in The Maria (1805), 5. Rob. 365.

14 See The Peterhoff (1866), 5 Wall. 28; also The Springbok (1866), ibid., 1, although this latter Case was not one primarily of contraband, but of blockade

15 W. E. Hall, International Law, 6th ed., p. 738. H. W. Briggs, Continuous Voyage, p. 158, 159. Authors can be quoted who take the contrary position, but the authority usually cited is Lord Stowell in the Washington Packet, 2 Rob. 77, 87, which does not support their view. In that case the claimant was a British subject, not a neutral, and was said to have to prove ownership.

16 On nature and procedure of prize courts see: Thomas Baty and Morgan, War: Its Conduct and Legal Results, Pt. V, Chap. 1. Thomas Batys, Britain and Sea Law, Chap. IV, and Neglected Fundamentals of Prize Law,” 30 Yale Law Journal, p. 35; Briggs, op. tit., Chap. IX.

17 Arthur Cohen, Declaration of London, Arts. 32 and 35.

18 Memorandum from the British Embassy, this Journal, Spl. Supp., Vol. 11, p. 11

19 Memorandum from the British Embassy, this Journal , Spl. Supp. Vol. 11, p. 15.

20 Cohen, op. cit. Arts. 22, 24, 28. It should be remembered that the Declaration never became legally binding, but it no doubt represented public opinion on the question. Certainly the Declaration did not unduly favor neutrals.

21 For text see this Journal, Spl. Supp., Vol. 9, pp. 4 and 14. See similar French and Russian measures, ibid., pp. 26 and 35, respectively.

22 The United States Supreme Court did not distinguish between applying the doctrine to absolute and conditional contraband. It did not need to, as the goods in question were undoubtedly of the former class. A dictum in The Peterhoff indicated the court would apply the doctrine to the conditional class if necessary. The opposition which arose at the London Conference over applying it to either class of goods, and the resulting agreement, seem to justify the conclusion that its use in the absolute class was all that could be said to have been accepted as law. Cf. C. John Colombos, A Treatise on the Law of Prize, p. 173

23 The Thai (1917), 6 Lloyd, 229; The Kim (1915), 3 Lloyd, 167; Accord: Colombos, op. cit., p. 178

24 The Kim (1915), 3 Lloyd, 167, 366

25 The Neptunus (1800), 3 Rob. 108; The Jonge Margaretha (1799), 1 Rob. 159; The Nostra Signore de Begona (1804), 5 Rob. 97.

26 The destination in the important case of The Kim was made out this way. See also The Nome, The Uma, footnotes 34 and 46, respectively

27 The Louisiana (1918), Appealed Cases, 461.

28 Secretary of State to Ambassador Page, this Journal , Spl. Supp., Vol. 9, pp. 55, 56.

29 The, Louisiana (1918), 5 Lloyd, 230; The Maracaibo (1916), ibid., 398.

30 Consul Corfitzon (1917), Appeal Cases, 550.

31 The Essex, not reported, but discussed in The Maria (1805), 5 Rob. 365

32 The Peterhoff (1866), 5 Wall. 28.

33 (1915), 3 Lloyd, 372.

34 (1921), 9 Lloyd, 402

35 (1921), 9 Lloyd, 422.

36 J. W. Garner, Prize Law during the World War, p. 571.

37 The Balto (1917), 6 Lloyd, 141.

38 The Jonge Margaretha (1799), 1 Rob. 159.

39 Scott, J. B. The Declaration of Londonp. 75.Google Scholar

40 (1915), 3 Lloyd, 370.

41 (1916), 5 ibid., 230.

42 (1918), ibid., 337.

43 Secretary of State for Foreign Affairs to Ambassador W. H. Page, this Journal , Spl. Supp., Vol. 9, p. 65 at 79

44 5 Lloyd, 264.

45 The Kronprinzessin Victoria (1918), 7 Lloyd, 230.

46 (1919), 4 Lloyd, 104.

47 (1919), 9 Lloyd, 230.

48 This Journal, Spl. Supp., Vol. 10, p. 52.

49 In writing to Secretary Jefferson defending the British policy of treating foodstuffs as contraband, Ambassador Hammond said: The actual situation of France is notoriously such as to lead to the employing of this mode of distressing her by the joint operation of the different Powers engaged in the war; and the reasoning which in these authors apply to all cases of thisisort, is certainly much more applicable to the present case in which the distress results from the unusual mode of war employed by the enemy himself, in having armed almost the whole laboring class of the French nation; . . . but this reason is most of all applicable to the circumstances of a trade, which is now in a great measure entirely carried on by the actually ruling party in France itself, and which is, therefore, no longer to be regarded as a mere mercantile speculation of individuals but as an immediate operation of the very persons who have declared war, and are now carrying it on against Great Britain. Ambassador Hammond to Secretary of State Jefferson, 1 Am. St. Papers, For. Rel., 240.

50 Ambassador Page to Secretary of State, this Journal , Spl. Supp., Vol. 9, p. 65

51 Moore, J. B. Principles of American Diplomacyp. 78.Google Scholar

52 Secretary of State to Ambassador W. H. Page, this Journal , Spl. Supp., Vol. 10, p. 75.

53 Text, 9 ibid., 11,0.

54 Quoted in Briggs, op. cit, 123.

55 Secretary of State to Ambassador Page, this Journal , Spl. Supp., Vol. 9, p. 116.

56 Ambassador Page to Secretary of State, 9 ibid., 157

57 The Stert (1801), 4 Rob. 53; also, The Ocean (1801), 3 Rob. 341.

58 The Stigstad (1915), 5 Lloyd, 373; appealed 5 ibid., 386; The Leonora (1918), 7 ibid., 262.

59 Edward, 311, and 2 Roscoe, 61, respectively.

60 Quoted by counsel in The Leonora, 7 Lloyd, 315.

61 Madison to Erskine, 5 Am. St. Papers, For. Rel., 210.

62 Sir Robert Phillimore, International Law, Vol. 3, p. 312.

63 Hansard, Parliamentary Debates, 10 Col. 936

64 Secretary of State to Ambassador Page, this Journal , Spl. Supp. Vol. 10, p. 88

65 Consul General Skinner to Secretary of State, 11 ibid., 50.

66 Maurice Parmelee, Blockade and Sea Power, Chaps. 5, 6, and 18. Also Ambassador Page to Secretary of State, 10 ibid., p. 111. Secretary of State to Ambassador Page, 10 tbid., p. 148.

67 Baty, Thomas Neglected Fundamentals of Prize Law 30 Yale Law Journalp. 35.Google Scholar Briggs, H. W. Continuous Voyage Google Scholar

68 Secretary Bryan to Ambassador Page, this Journal , Spl. Supp., Vol. 9, p. 58.

69 Secretary of State to Ambassador Page, this Journal , Spl. Supp., Vol. 10, p. 74.

70 30 Yale Law Journal, 38.

71 Secretary of State to Ambassador Page, this Journal , Spl. Supp., Vol. 10, p. 73 a t 74.

72 British Ambassador to Secretary of State, 10 ibid., p. 120 at 140