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Some Questions of International Law in The European War1

Published online by Cambridge University Press:  04 May 2017

James W. Garner
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Extract

The outbreak of the European War found hundreds of merchant vessels of belligerent nationality in enemy ports or on the high seas bound to or from such ports in ignorance of the existence of hostilities, having left their last port of departure before the outbreak of war. The short period antedating the outbreak of the war, during which hostilities may be said to have been imminent, and the suddenness with which the war burst out afforded little opportunity to such vessels to escape, and consequently large numbers were caught either in enemy ports or on the high seas proceeding innocently thereto or therefrom.

Type
Research Article
Information
American Journal of International Law , Volume 10 , Issue 2 , April 1916 , pp. 238 - 269
Copyright
Copyright © American Society of International Law 1916

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Footnotes

1

Continued from previous numbers of this Journal.

References

2 The figures given by the London Weekly Times were somewhat different. In its issue of Sept. 4, 1915, the Times stated that 225 enemy ships had been detained or captured at sea, aggregating a total of about 550,000 tons. According to the list published by officials of the Prize Court in September, 1915, there were 97 German prizes in the custody of the British Prize Court. Owing to the disappearance of the German navy and merchant marine from the ocean, few captures were made by Great Britain except during the early weeks of the war.

3 “ It was the general usage of Europe,” says Merlin in the beginning of the nineteenth century, “that whenever one Power declared war against another he seized instantly all ships belonging to the enemy or his subjects, which were found in his ports.” Cited by Pistoye et Dunerdy, Traité des Prises Maritimes, T. I, p. 122. Concerning the old practice see also de Boeck, de la Proprieté Privée Enemie sous Pavilion Enemie, sec. 234; Dupuis, , Le Droit de la Guerre Maritime d’après les Conférences de la Haye et de Londres, p. 163 Google Scholar; Scott, , Status of Enemy Merchant Ships, American Journal of International Law, Vol. II, pp. 260–261 Google Scholar.

4 Westlake, International Law, pt. II, p. 42; and Moore, Digest of International Law, Vol. VII, sec. 1196.

5 Op. cit., sec. 234. For the same view see Bonfils, Droit International Public, sec. 1399.

6 Droit International Codifié, Trans, by Lardy, Art. 669.

7 See the texts of the French decree and the British Order in Council, in International Law Situations, 1906, pp. 48–49.

8 Ibid., Bonfils, sec. 1399.

9 Bonfils, sec. 1399.

10 The Buena Ventura, 175 U. S. 388. The American proclamation, however, expressly withheld the favor thus granted, to Spanish ships having on board enemy military or naval officers, contraband goods, dispatches from or to the Spanish Government, or coal, except such as might be necessary for the voyage. See the cases of the Panama, 175 U. S. 535, and the Pedro, 75 U. S. 354. Cf. Benton, , International Law and Diplomacy of the Spanish American War, pp. 130 Google Scholar ff. and 166 ff.

11 For an analysis of the several proposals submitted, see Higgins, The Two Hague Peace Conferences, p. 302, and International Law Situations, 1910, pp. 68–70.

12 Capture in War on Land and Sea, p. 55.

13 This article was inserted at the instance of the British delegate, Lord Reay. It was evidently aimed at subsidized steamers constructed according to special designs which make them easily convertible into cruisers, and in pursuance of an arrangement between the subsidizing government, and the owner. The article was opposed by the German delegate, Herr Kriege, who contended that there were no steamships which were not capable of being converted into war vessels or which could not be used for mine laying or other subsidiary naval operations. The proposed article might therefore be so interpreted as to exclude from the benefit of the délai de faveur all ships except sail boats. Actes et Documents, p. 1033. Compare also Wehberg, Capture in War on Land and Sea (Trans, by Robertson) p. 59, who observes that ‘ every steamer of high speed can also be employed as an auxiliary cruiser, and every vessel, at any rate, in mine-laying. In any case precisely the most valuable vessels, “which are often the pride of the whole communities—one has only to think of the splendid four-screw steamer, Lusitania, of the Cunard Line—are thereby exposed to the whole barbarity of the law of prize. Holland and Austria endeavored in vain to bring about a compromise by which all ships which had been granted time to clear might not again be used by their native country for war purposes.

“The extent, however, to which views differ as to whether a ship is to be regarded as an auxiliary cruiser or not is shown by the fact that England then declared that it had only five merchant ships which were intended beforehand for fighting purposes. On the other hand, the latest ‘Naval Almanac’ gives a total of 27 such English auxiliaries for the end of 1908.”

Compare also Hall (International Law, 5th ed., p. 616), who remarks that while experts are perfectly able to distinguish vessels built primarily for warlike use, it is otherwise with many vessels intended primarily for commerce. “Mail steamers of large size are fitted by their strength and build to receive without much special adaptation, one or two guns of sufficient calibre to render the ships carrying them dangerous cruisers against merchantmen.”

14 See their report in Senate Document No. 444, 60th Congress, 1st Session, p. 38. See also Dupuis, op. cit., p. 169, for a similar criticism.

15 Actes et Documents, Vol. I, p. 235; Vol. II, p. 954.

16 British White Paper, No. 143.

17 Ibid., No. 145.

18 On the night of August 4, 1914, the British Secretary of State for Foreign Affairs received the following notice from the German Ambassador: “The Imperial Government will detain merchant vessels flying the British flag and which are interned in German harbors, but will liberate them if the Imperial Government receives a counter undertaking from the British Government within 48 hours.” A similar notice was handed to M. Viviani, President of the Council, on August 3 at the time of the declaration of war against France.

19 The text of the French decree may be found in the Revue Générate de Droit International Public, Jan.–June, 1915, Documents, pp. 9–10.

20 Huberich, , The Prize Code of the German Empire as in Force July 1, 1915, p. XXI Google Scholar.

21 Belgium accorded three days of grace to German ships in Belgian ports at the outbreak of war, and presumably Germany accorded reciprocity of treatment.

22 The privilege, however, was not accorded to cable ships, or sea-going ships designed to carry oil fuel, to ships whose tonnage exceeded 5000 tons burden or whose speed was fourteen knots or over. Enemy merchant ships allowed to depart were to be provided with a pass indicating the port to which they were to proceed and the route they were to follow. Officers and members of the crew, if of enemy nationality, were required to give an undertaking in writing that they would not after the conclusion of the voyage for which the pass was issued engage during the continuaance of hostilities in any service connected with the operation of war. See “Copies of Proclamations, Orders in Council, and Documents Relating to the European War, compiled by the Secretary of State for Canada, 1915,” pp. 20–24, for the text of the above mentioned Order in Council. By a Canadian Order in Council of August 14, 1914, similar privileges were accorded to Austrian and Hungarian ships provided information were received not later than midnight of the following day, of the promise of reciprocity of treatment (ibid., p. 45). Satisfactory information was received, and the privileges of the order in Council were extended to Austrian and Hungarian ships (ibid., p. 57).

23 Proclamation of August 5, 1914. See text in copies of Proclamations, Orders in Council and Documents, issued by the Canadian Government, p. 147.

24 The last prize court had been held by Dr. Lushington during the Crimean War.

25 “A simple ceremony,” says the London Times, “characterized the opening of the proceedings. At 11 o’clock the judge entered the court, preceded by the marshal of the admiralty bearing the ancient and beautiful silver oar which was placed upon rests before the judge’s desk.”

26 The long interval of time which had elapsed since a prize court had sat necessarily involved, he said, great changes. There were obviously very great changes in the conditions which would have to be considered, and in the difficulties which would have to be solved by His Lordship. The almost universal substitution of other means of motion on the sea for the use of sails was a very small part of the whole of the changed conditions. When Dr. Lushington sat during the time of the Crimean War, and still more when Lord Stowell sat during the Napoleonic Wars, it could not have been contemplated that a time would come when it would be possible to communicate with a ship on the high seas by means of the marvellous development of science which was now regarded almost as a matter of course. Another change was that the office of King’s Advocate had disappeared.

He understood that it was essential in a prize case that the claim for the condemnation of a prize should be a claim that it should be condemned to the Crown. It seemed to be popularly supposed that when a prize had been captured, the prize, if condemned, belonged to the captors. He did not think that that was an accurate way of stating what took place. It was true that under the old practice the captors applied for a condemnation of the ship, but if a decree of condemnation was made it decreed a good and lawful prize to the Crown, and it was by a subsequent act of the Royal judgment and discretion that the proceeds of the prize might be distributed among those immediately responsible for its capture. It had already been announced that in the present war some modification of that principle was intended to be introduced. Under modern conditions it would be wrong that only those particular members of the sea forces who took part in the capture of an enemy ship should be the persons to be considered, if the Crown in its judgment thought right to distribute the proceeds of the prize. Some of the most important and gallant services in the navy were performed by men who never in any circumstances could have anything to do with the capture of prizes. The submarine service on the one hand, and those serving upon a dreadnought, on the other, would in the ordinary course have no part in the taking of prizes. The rule formerly prevailing would, therefore, be modified, but the principle, that if a prize were taken and condemned it would be condemned to the Crown, was the old principle which would be carried out during the present war.

It was correct to say that an English judge who administered the law in a British Prize Court administered “the course of admiralty and the law of nations.” That was the old form of commission to the court. Looking back at the early reports these words were to be found, and there could be no question that the jurisdiction, which His Lordship was exercising, was essentially the same, both with regard to its nature and its ambit, as was exercised by the famous predecessors of His Lordship who had sat in a Prize Court.

The second branch of this law which would be applied in this court was what had been called “the common law of nations.” This depended on the teaching and learning of the civilians and other great authorities, and on special treaties or international arrangements entered into by the Great Powers of the world.

One of the most famous of such international agreements was that contained in the Declaration of Paris, 1856, which was entered into immediately after the Crimean War. He believed that the British Prize Court had never had to apply the Declaration of Paris in a prize case, but pursuant to that arrangement a neutral flag would he a protection for enemy cargo so long as that cargo was otherwise not open to challenge on the ground of a breach of the law as to contraband or the law of blockade. He was reminded by his learned friend, Dr. Holland, that although the Declaration of Paris was entered into after the Crimean War, by consent, this country acted on its principles during the war. Since that time the most important additions to the law of nations were those which arose from a series of conventions entered into by the Second Peace Conference at The Hague in 1907, by which the civilized world made efforts to modify the code applicable in war time. He apprehended that these conventions, in so far as they had been agreed to by the contracting parties, would be regarded by His Lordship as grafted upon the law of nations.

27 See the full report of the case in Trehern, , British and Colonial Prize Cases decided during the Present War, Part I, pp. 1–12 Google Scholar. The order of detention issued in this and like cases did not of course definitely determine the rights of the Crown. These rights could only be finally determined when it was known what treatment was being accorded by Germany to British ships in German harbors. Orders of detention might therefore be subsequently superseded by orders of condemnation. The Law Magazine and Review of November, 1914, p. 76, called attention to the fact that decrees of detention were unknown to prize procedure, and the editor suggested that it would have been better if, instead of making such orders the cases had been simply adjourned, since there might be some question as to whether a decree of detention once made could be superseded by a decree of condemnation in the future.

28 Thus at its sitting on Sept. 11, 1914, orders of detention were made by the court in the cases of 16 vessels which, like the Chili, were in British ports at the outbreak of the war. These cases are reported in Trehern’s collection cited above, parts I–IV. The judgments but not the briefs of counsel in some of the more important of these and other cases to be discussed in this article may be found in the American Journal of International Law for April, 1915 (pp. 528–535) and July, 1915 (pp. 739–759).

29 Trehern, Pt. I, pp. 38 ff.

30 Trehern, Pt. I, p. 60.

31 Trehern’s Prize Cases, Pt. I, p. 73. The question of the right of enemy subjects to sue and the practice followed during the present war will be more fully discussed in another paper.

32 Ibid., Pt. III, p. 303.

33 Trehem’s Prize Cases, Pt. III, p. 339.

34 Trehern’s Prize Cases, Pt. I, p. 95. Judge Newcombe prefaced his opinion in this case by referring to the fact that it was the first occasion in one hundred years in which a prize court had sat in British North America. He then gave a résumé of the history of the prize court in Canada, quoting from Stewart’s Reports of the Admiralty Decisions of the Province of Nova Scotia, published in 1813. The prize court in which these decisions were given was established in 1801, and the first judge of the court was Dr. Alexander Croke. Under the authority of the Imperial Prize Courts Act of 1894, the Exchequer Court of Canada by an Admiralty warrant of April 10, 1910, was authorized to exercise prize jurisdiction. By a proclamation of the Governor General of Aug. 22, 1914, the British Prize Court Rules approved by the King in Council on Aug. 6, 1915, were put into operation in Canada.

35 Trehern’s Prize Cases, p. 102.

36 Ibid, p. 122.

37 Ibid, p. 130.

38 Ibid, Pt. II, p. 243.

39 Ibid, Pt. II, p. 248.

40 Ibid, Pt. III, p. 390.

41 It was argued on behalf of the Crown that the Hague Convention did not apply since it contained merely an announcement of principles on which it was thought desirable to act, and could have no binding effect until applied by the laws of the country.

42 Judge Grain in his dissenting opinion gave the following reasons in support of his view: “Although we are sitting in this court for the purpose of listening to the evidence concerning certain facts and law, and to arguments of such facts and law, I cannot think that we are bound to shut our minds to certain reports and charges with regard to the breaking of treaties and conventions that are cognizant to the whole world. And it would be idle to pretend that at the present moment there are not grave charges being made against the German nation of having broken article after article of the Hague Conventions. These reports and charges may have no foundation, but, nevertheless, at the present moment they have never been adjudicated upon, and one can express no opinion as to their truth or otherwise. It may be said that because one party to a contract breaks that contract it does not free the other party. That may be so in ordinary case of law or affairs of life, but in the laws of nations connected with warfare, the rule of reprisals has always been recognized.”

43 Trehern, Pt. I, pp. 130 ff.

44 The Egyptian Government had issued a proclamation on August 6 granting special concessions to enemy ships in canal ports. Ships under 5000 tons burden were allowed until sunset on August 11 to leave. Nothing was said about granting safe conducts, but they were, in fact, offered to a number of vessels, good until sunset on August 14, among them the Pindos. On the latter date they were withdrawn, and the commander of the port was instructed to detain all enemy ships remaining in port. Later new instructions were issued and safe conducts were again offered which were available until August 22, but the masters declined to use them.

45 In this connection, a decision of the Belgian Prize Court at Antwerp interpreting the meaning of the term “force majeure” as employed in Article 2 of the Hague Convention may be cited. At the outbreak of the war the Belgian Government gave three days of grace to a number of German vessels that were lying in the port of Antwerp.

As no advantages was taken of the délai de faveur, the vessels were seized. At the hearing before the prize court the owners, the North German Lloyd Company, set up the plea that the vessels were not liable to condemnation because “ circumstances beyond their control” made it impossible for them to leave. The “force majeure” alleged consisted in the departure of the ship’s officers and crews to rejoin the German forces conformably to the German order of mobilization, and the consequent inability of the company to procure fresh crews before the expiration of the period of grace allowed. But the court declined to admit the plea on the ground that the “force majeure” contemplated by the Hague Convention did not include inability to depart because of the abandonment of the ship by its officers and crews for the purpose of joining the forces of the enemy. Coleman Phillipson, International Law and the Great War, p. 79.

46 The French Prize Council was composed of five judges and a government procurator (commissaire du gouvernement).

47 “A cargo,” said the court, “being transported under an enemy flag is presumed to be an enemy cargo until the contrary is proven.” The cargo was claimed by a French company, but no sufficient evidence of French ownership was presented to the Prize Council. It was therefore presumed to be enemy property and was condemned with the ship.

48 The texts of the decisions rendered by the Counseil des prises in the above mentioned cases may be found in the Revue générate de Droit International Public, January–June, 1915, Jurisprudence, pp. 1–12; and November-December, 1915, Jurisprudence, pp. 53–54.

49 Trehern, Pt. I, p. 71.

50 Thus it was said in the case of the Barenfels: “ It is our duty to give effect to the intent of the parties (to the Sixth Hague Convention) and the language of its preamble makes it clear that the clauses of the convention are to be construed liberally in favor of any ship which may have had the misfortune of finding itself in any enemy port at the outbreak of the war.”

51 Ibid, Pt. I, p. 72.

52 Such an appeal was addressed to the government by the executive committee of the Navy League on July 3, 1915. In its appeal the committee said: “Surely it is the obvious duty of the Government to turn to practical account every vessel in their hands for the benefit of British interests. The destruction of British merchant vessels in violation of the laws of war offers complete vindication for this form of reprisal. Whatever a prize court decision may be as affecting the cargoes of vessels which have been seized, there should be no hesitation on the part of the Government to confiscate enemy ships as an act of reprisal for British merchantmen which have been sunk.

“In the present exigencies of the nation, every enemy merchantman in seaworthy condition should be actively employed as part of the British mercantile marine. The immediate value of the adoption of such a policy would be to convince Germany that she must pay in kind and at once for her lawlessness at sea, and in the second place to assist in considerably modifying the quotations for shipping freights by stimulating a demand for the use of these ships by merchants.

“The Navy League, therefore, strongly urge that his Majesty’s Government should at once follow the example of our latest ally, Italy, in confiscating at least an equivalent of enemy ships to those which have been destroyed by German submarines; and further employ all enemy ships for the purpose of British sea commerce upon such terms and under such conditions as may be deemed advisable.”

53 It appears, however, from a dispatch of Sir Edward Grey to Ambassador Page of February 10, 1915, that the British Government was resorting to its right of requisitioning German ships detained in British ports. This right is expressly recognized by Article 2 of the Sixth Hague Convention, but it is conditioned upon the obligation to make compensation at the close of the war.