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Seizures in Land and Naval Warfare Distinguished

Published online by Cambridge University Press:  04 May 2017

Manley O Hudson
Manley O Hudson*
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Harvard University
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Extract

Recent efforts to codify the international law of war have tended to differentiate more sharply between land warfare and naval warfare. But it is still frequently difficult to say where land warfare ends and naval warfare begins, and too little assistance is to be had from the few writers who have attempted to draw the line. The need of a clearly drawn line is evident when the capture of private property is being considered, for very different considerations apply in the two kinds of warfare. If a capture is governed by naval law, perplexing problems of prize court procedure may arise; but a seizure governed by land law is free from all necessity for prize court adjudication and confers a title which without more may be asserted in a neutral country.

Type
Research Article
Information
American Journal of International Law , Volume 16 , Issue 3 , July 1922 , pp. 375 - 390
Copyright
Copyright © American Society of International Law 1922

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References

1. See Annuaire de I'Institut de Droit International, 1913, p. 182.

2. The Thalia (1905), Takahashi, Russo-Japanese War, pp. 605, 617.But see the fourth voeu expressed by the 1907 Hague Conference, in which the Conference expressed the opinion that “ the Powers may apply, as far as possible, to war by sea the principles of the Convention relative to the laws and customs of war on land”

3. It is sometimes stated that the lower Danube had been neutralized bythe Treaty of Berlin of 13 July, 1878. SeeBonfils, Manuel de Droit International Public (7th ed.), p. 1133; Sec.3 of the German Prize Code as in force on 1 July, 1915. But Article 52 of that treaty only forbids the erection of fortifications and the navigation of the river by vessels of war, 69 British and Foreign State Papers, 749 765.

4. Hines, Walker D., Determination in the Matter of Questions Arising as to Danube Shipping (1921), p. 8.Google Scholar

5. Instructions for the Navy of the United States Governing Maritime Warfare, 1917, p. 26.

6. Holland, Manual of Prize Law, 1888, p. 1; Russian Beglement des Prises Maritime,27 March, 1895, Art. 16; Japanese Prize Regulations, 7 March, 1904, Art. 2; Roumanian Prize Code, Art. 24, 5 Bulletin de VInstitut Intermediate International, p.342. The Turkisfi law of 31 January, 1912, explicitly authorizes seizure of boats and cargoes by sea or land forces, 5 Bulletin de I'Institute Intermediaire International, p. 137. Cf. Chinese Prize Regulations of 30 October, 1917, 26 Revue de Droit International Public, 496; Cheng, Judgments of the High Prize Court of China, p. 136.

7. Italian Rules Governing the Exercise of the Right of Prize,25 March, 1917, Art. 5. AFrench translation is published in Fauchille et Basdevant, Jurisprudence Italienne en MatiereDes Prises Maritime, p. xlix.

8. Annuaire de VInstitut de Droit International, 1913, p. 610. See also the Report of the International Law Association, 1920, p. 169.

9. Cf. Oppenheim, International Law (2 ed.), I, p. 235.

10. See Baty and Morgan, War, p. 338; Rivier, Droit des Gens, II, p. 341.

11. Cf. United States v. 269% Bales of Cotton (1868), 1 Woolworth, 236, 259.

12. This position was ably stated in Secretary Lansings note to the British Government concerning The Farn, a British vessel captured by a German cruiser and brought into an American port during the days of American neutrality, as follows: In the opinion of this Government an enemy vessel which has been captured by a belligerent cruiser becomes as between the two governments the property of the captor without the intervention of a prize court. If no prize court is available this Government does not understand that it is the duty of the captor to release his prize, or to refuse to impress her into its service.

13. American Journal of International Law, Spec. Supp., p. 364.

14. O'Neil v. Central Leather Co. (1915) 87 N. J. Law 552; Oetjen v. Central Leather Co.(1918) 246 U. S. 297; Ricaud v. Am. Metal Co. (1918) 246 U. S. 304, 250 Fed. 853; Terrazas Holmes (Tex., 1920) 225 S. W. 848; Terrazas v. Donohue (Tex., 1920) 227 S. W. 206.Banda and Kirwee Booty (1866) L. R. 1 Adm. and Ecc. 109. The jurisdiction of prize courts in Germany seems more narrowly confined, Huberich and King, The Development of German Prize Law, 18 Columbia Law Review 503, 511.

15. Lindo v. Rodney (1782) 2 Douglas 613. Cf. The Thorshaven (1809) Edwards Adm.Rep. 102. In The Rebeckah (1799) 1 Christopher Robinson 227, the capture was made by naval forces froma land garrison. 111.

16. In 1665-6, reproduced in 1 Christopher Robinson 231.

17. 27 and 28 Viet. c. 25, 34. Cited by counsel in The Anichab [1919]Probate 329, 331.

18. The Feldmarschall [1920] Probate 289, will doubtless be a leading case on the law of joint captures by land and sea forces. See also The Dordrecht (1799) 2 Christopher Robinson 55; The Stella del Norte (1805) 5 Christopher Robinson 349.

19. [1915] Probate 26, [1916] 1 A. C. 124. Also reported in (1914) 1 British and Colonial Prize Cases, 75, 536. Cf. The Achaia (No. 2) [1915], 1 British and Colonial Prize Cases, 635; The Bawean [1918] Probate 58; The Batavier I I [1918] Probate 66.

20. In The Geerlruida (1917) Entscheidungen des Oberprisengerichts in Berlin, p. 302, a claim presented by the owner of a Dutch vessel sunk by a submarine was dismissed by the German prize court because its jurisdiction was held to be limited to cases where there had been a seizure as prize. But on the necessity of possession as a condition of prize court jurisdiction, see The Elbing (1921) 2 British Year Book of International Law, p. 183, and the comment by A. Pearce Higgins in ibid., p. 182.

21. (1918) 3 B. and C. Prize Cases 295, [1919] Probate 83. The Lord President referred to the Kangani and the Hedioig von Weissman (1917) Lloyd's List Weekly Summary, 23 March, 1917, p. 2.

22. [1919] Probate 329, [1922] 1 A. C. 235.

23. (1788) 4 DaUas 1.

24. (1814) 8 Cranch 110. Cf. Johnson v. 21 Bales (1814) Van Ness PrizeCases, p. 2 1 Many seizures must have occurred on the Great Lakes during the War of 1812.

25. Story, Prize Courts (Pratts ed.) p. xxx. These notes, which were originally printed as appendices to the first and second volume of Wheaton s reports, were published in London in1854, under the editorship of F. T. ratt. Cf. 2 Parsons, Shipping, p. 173.

26. In Slocum v. Wheeler (1816) 1 Conn. 429, the capture exceeded the privateer' s authority. The opinions contain elaborate discussions of the prize jurisdiction of American courts.

27. The naval war on the Mississippi led Mr. Justice Miller to the conclusion in United, States v. 869J Bales of Cotton (1868) 1 Woolworth 236, 249, that:“ The introduction of steam, as a motive power, into vessels of war, enabling them to penetrate on inland waters, far into the interior of the country, has revolutionized naval warfare in this respect, as in many others. The presence in the waters of this great stream of a hostile fleet of a foreign nation, is among the contingencies for which we must be prepared. Again, captures may be made on this river, and others similarly situated, of property belonging to neutrals, who have a right, before it is condemned to the captors, to the judgment of a competent court upon their claims. We have then a court which, by the constitution and laws, is authorized to determine this question of prize or no prize; and we see that the exigency may arise, in which the question between the captor and the claimant should, by the adjudication of this court, be answered. We certainly cannot decline the jurisdiction, and, in the face of the fact, hold, that on the Mississippi river no such case can arise.”

28. (1862) Blatchford Prize Cases 211.

29. (1862) Blatchford Prize Cases 211. To the same effect is Six Hundred and EightyPieces Merchandise (1863) 2 Sprague 233, in which an able argument was made by R. H.Dana, Jr.

30. (1864) 2 Wallace 404. It was in reliance on Mrs. Alexander's Cotton that the Court of Claims decided that cotton seized at Apalachicola, Florida, in a warehouse on the river bank, by naval forces, had been improperly condemned as prize. Cook v. U. S. (1873) 9 Ct. of Claims 288.

31. 12 Stat. at Large 820. The validity of this Act was later attacked on the ground that it was approved by the President after the adjournment of Congress. Hodges v. U. S. (1883) 18 Ct. of Claims 700; U. S. v. Weil (1894) 29 Ct. of Claims 523.

32. 12 Stat. at Large 606. The seizure in Mrs. Alexander's Cotton antedated the Act of July 2, 1864, 13 Stat. at Large 377, which enacted that “ no property seized or taken upon any of the inland waters of the United States by the naval forces thereof, shall be regarded as maritime prize.” This statute was applied in The Cotton Plant (1870), 10 Wallace 577,to a capture made by a naval force on the Roanoke River in North Carolina, at a point 130 miles from the mouth of the river. Mr. Justice Strong said that “ Congress probably anticipated,especially in view of the state of war when the Act was passed, that most of the captures on the rivers would be made by the army, and thought it unwise to continue two modes for the disposition of the property taken.”

33. Cf. United States v. Winchester (1878), 99 U. S. 372, where it was held that the admiralty jurisdiction of the United States District Courts did not extend to a seizure on land by a naval force. Under the Act of 6 August, 1861, though the jurisdiction of United States District and Circuit Courts was extended to captures on land, such proceedings did not necessarily constitute causes in admiralty so as to authorize resort to admiralty procedure in all cases. Union Ins. Co. v. United States (1867) 6 Wallace 759.

34. (1868) 1 Wool worth 236.

35. (1898) 174 U. S. 778. A report of the case in the Court of Claims is to be found in 30 Ct. of Claims 378.

36. (1870) 1 Woods 40.

37. (1871) 13 Wallace 389.

38. (1902) 188 U. S. 254 (The Manila Prize Cases).The U. S. Judicial Code of 1911 (36 Stat. 1087) amended in 1917 (40 Stat. 395) confers upon the District Courts original jurisdiction “ of all civil causes of admiralty and maritime jurisdiction . . . ; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize.”But “ maritime jurisdiction” may not be extended to all inland waters in the United States.Stapp v. Steamboat Clyde (1890), 43 Minn. 192.

39. (1917) Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prise Maritimes,p. 178. This Italian decision was referred to by Lord Sterndale in In Re Craft Captured on Victoria Nyanza (1918) 3 B. and C. Prize Cases, 295, 298.

40. Erdscheidungen des Oberprisengerichts in Berlin, p. 17.

41. Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Maritimes, 194.

42. (1917) Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Maritimes,p. 199 Cf., also, The Monfalcone (1919) ibid., p. 497.

43. The Italian Court seems to have been influenced by the fourth voeu expressed by the 1907 Hague Conference, to which reference has been made, ante, note 2.

44. Entsheidungen des Oberprisengerichls in Berlin, p. 17.

45. Ibid., 1914, p. 1; 10 American Journal of International Law, p. 909.

46. It was pointed out by Sir Samuel Evans in The Moewe [1914] 1 British and Colonial Prize Cases, 60, 74, that the French en mer in Article 3 of the Sixth Convention is not accurately translated by on the high seas: where the Conventions intend to describe upon the high seas, the appropriate phrase en pleine mer is used.

47. The Comte de Smet de Naeyer (1916) Entscheidungen des Oberprisengerichts in Berlin,p. 209.

48. Huberich and King, The Development of German Prize Law, 18 Columbia Law Review,p. 503, 514.

49. Liszt, Das Volkerrecht (2d ed., 1902) p. 317. Cf. 1 Pistoye et Duverdy, Prises Maritimes,(1859) p. 112.

50. See the Moniteur Beige, 1920, p. 405. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 117.

51. See the Moniteur Beige, Nov. 6, 1919, p. 5894. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 127.

52. Ibid., 1919, p. 5772. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 129.

53. See also The Roelfina, 16 American Journal of International Law 136, as to which the facts as to the Belgian capture are not so clear. Other Belgian decisions are reported in the British Year Book of International Law, 1921-22, p. 183 ff.

54. Hines, Determination in the Matter of Questions Arising as to Danube Shipping, p. 21.

55. “ It may be mentioned that the Roumanian decree relative to the organization of the jurisdiction of maritime prize declares in Ch. I, Art. I, that the Roumanian state has the right to capture vessels serving as means of transport by waterways inscribed in official registers of the merchant marine. Likewise the Roumanian code of prize maritime jurisdiction declares in Ch. I, Art. I, that every navigable object of whatever nature inscribed in the registers of the merchant marine of the different states is regarded as a vessel of commerce. This indicates that maritime jurisdiction relates at least primarily to marine vessels”. Hines, Determination in the Matter of Questions Arising as to Danube Shipping, p. 6.

56. The second Convention of 1899 and the fourth Convention of 1907. Higgins, Hague Peace Conferences, p. 206.

57. Actes de la Conference de Bruxelles, p. 363.

58. Actes de la Conference de Bruxelles, p. 154.

59. Actes et Documents, 1907, III, p. 27.

60. See Lawrence, International Law (5 ed.) p. 441; Spaight, War Rights on Land (1911)p. 416.

61. (1905) Takahashi, Russo-Japanese War, p. 606. Article 53 of the Regulations was also construed by the Italian court in an opinion reported in Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Maritimes, p. 203: “ L'article 53 de ce reglement declare en effet que les forces militaires qui occupent un territoire peuvents s'approprier les moyens de transport et en g toute propri6t6 mobiliere de lfitat de nature a serviraux operations de guerre. And see ibid., p. 500. In The Anichab (1919) Probate 329, Article 53 was applied, at least by way of analogy, but Lord Sterndale refused to admit that the Prize Court had jurisdiction to fix the indemnity for which the article provides. Mr. Walker D. Hines, in the Determination in the Matter of Questions Arising as to DanubeShipping, pp. 9, 10, expressed the opinion that Article 53applied only “ to military authority over hostile territory that is actually placed under the authority of the belligerent army” ; and he held that Article 53 “does not contemplate war material in actual hostile use at the time of seizure.”

62. Annuaire de I'Institut de DroitInternational, 1913, p. 191.

63. Article 47 of the Oxford Manual of the Laws of Maritime War provides: “ Les bateaux exclusivement affect6s a la pche c6ti6re, ou and des services de petite navigation locale,y compris ceux exclusivement affectes au pilotage ou au service des phares, comme aussiles navires destines and naviguer principalement sur les fleuves, canaux et lacs, sont exempts de saisie, ainsi que leurs engins, agres, apparaux et chargements.” Annuaire de I'Institut de Droit International, 1913, p. 654.

64. “Article 40. En cas de guerre entre les fitats rivereins, la propri6t6 flottante sur unfleuve international, sans distinction entre la propriete neutre et la propriat6 ennemie, sera traitee suivant l'analogie de la protection de la propriety ennemie en cas de guerre sur terre.”Annuaire de I'Institut de Droit International, 1888, p. 187.

65. Report of International Law Association, Twenty-Ninth Congress at Portsmouth,1920, p. 169.

66. Ibid., p. 224.

67. Cf. In re Ferdinand, Ex-Tsar of Bulgaria [1921] 1 Ch. 107.

68. One may query Professor Oppenheim's suggestion that as the seizure of means of transport is, according to Article53 of the Hague Regulations, permissible in occupied enemycountry, provided they are restored and indemnities paid after the conclusion of peace,“ seizure must likewise under the same conditions be permissible in case these articles are on the territory of a belligerent.” Oppenheim, International Law (2d ed.) II, p. 140.If municipallaw governs as to seizures on a belligerent's own territory, Article 53 may be in no way applicable.

69. These arguments did not prevail during the past war as to tugs and lighters in a port,however. Deutsche Kohlen Depots (1916) 2 British and Colonial Prize Cases 439, [1919]A. C. 291.

70. E.g., the law as to “ Custody of the Res,” on which see Tiverton, Prize Law (London,1914), p. 65 ff.