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The Taking of Foreign Ships in American Ports

Published online by Cambridge University Press:  12 April 2017

L. H. Woolsey
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Type
Editorial Comment
Information
American Journal of International Law , Volume 35 , Issue 3 , July 1941 , pp. 497 - 506
Copyright
Copyright © American Society of International Law 1941

References

1 On the same day the President issued an Executive Order authorizing the United States Maritime Commission to carry out the provisions of the Act. It especially ordered that “no vessel shall be transferred, chartered or leased to any belligerent government without the approval of the President.”

2 A “limited emergency” was proclaimed on Sept. 8, 1939, to safeguard our neutrality and strengthen our defense. An “unlimited emergency” was proclaimed on May 27, 1941.

3 This phrase is used repeatedly in the committee reports and in the debates on H. R. 4466.

4 It is said that there are in other ports of this hemisphere about 1,500,000 tons of idle foreign shipping.

5 G. G. Wilson, International Law, 9th ed., p. 367; Oppenheim, International Law, 6th ed., Vol. II, p. 622 ff.; Westlake, International Law, 2d ed., Pt. II, p. 134; Hyde, International Law, Vol. 2, p. 262 ff.; Fenwick, International Law, 2d ed., p. 541; Scott and Jaeger, Cases on International Law, p. 910, note and cases cited; Commercial & Estates Co. v. Board of Trade, [1925] 1 K.B. 271, Hudson, Cases on International Law, 2d ed., p. 1394.

However, G. G. Wilson points out that the right of angary originally “was exercised both in time of peace and in time of war.” Ibid., p. 367. J. E. Harley asserts that since the Portuguese case in the last war, “We can no longer limit the privilege of exercising the right to the belligerent alone.” “The Law of Angary,” this Journal, Vol. 13 (1919), p. 284. C. L. Bullock believes that angary is historically not a purely belligerent right, but a right of sovereignty exercised in the “requisition of means of transport [ships, vehicles or planes] for purposes of transport,” and distinguishes it from requisition for other purposes. He lists several contemporary writers who declare that “a neutral state was undoubtedly just as much entitled as a belligerent to requisition foreign shipping in its ports.” “Angary,” British Yearbook of International Law, 1922–23, p. 119 ff.

5 G. G. Wilson, ibid., p. 367. Two of the Dutch vessels, Merak and Texel, while under requisition to the United States, were sunk by German submarines in this hemisphere, for which losses the United States-German Mixed Claims Commission made awards to the United States. Decisions & Opinions, 1925, p. 75. The Commission held that requisition “amounted to a special and qualified property in the ships tantamount to absolute ownership thereof for the time being.” See Scott, J. B., “Requisitioning of Dutch Ships by the United States,” This Journal, Vol. 12 (1918), p. 340 Google Scholar; Hyde, ibid., Vol. 2, p. 266.

7 This Journal, Vol. 17 (1923), pp. 287, 362.

8 Report on Neutrality, this Journal, Supplement, Vol. 33 (1939), p. 361.

9 Cong. Record, May 14, 1941, p. 4190.

10 Cong. Record, May 14, 1941, p. 4125.

11 See Woolsey, L. H., “Government Traffic in Contraband,” This Journal, Vol. 34 (1940), p. 498 Google Scholar.

12 New York Times, Sept. 4, 1940, p. 10. See Briggs, Herbert W., “Neglected Aspects of the Destroyer Deal,” This Journal, Vol. 34 (1940), p. 569 Google Scholar.

The United States was a party to the Act of Habana, which was an effort to checkmate Germany in the possible acquisition of colonies in this hemisphere. This Journal, Supp., Vol. 35 (1941), p. 18.

12a See Wright, Q., “The Lend-Lease Bill and International Law,” This Journal, Vol. 35 (1941), p. 308 ffGoogle Scholar.

13 Cong. Record, May 6, 1941, p. 3746. House Hearings on H. R. 4088, 77th Cong., 1st Sess., pp. 35, 64, 65, 131. Senate Hearings on H. R. 4466, 77 Cong., 1st Sess., p. 19.

14 U. S. State Dept. Press Release, June 5, 1941.

15 Speech and proclamation of President Roosevelt, May 27,1941; statement of Secretary of State Hull before the Foreign Affairs Committee of the House, on H. R. 1776, Jan. 15, 1941; statement of Secretary of War Stimson before the Foreign Relations Committee of the Senate on S. 275, Jan. 29, 1941; speech of Attorney General Jackson before the International Bar Association, Habana, March 27, 1941, this Journal, Vol. 35 (1941), p. 348.

15a Grotius says “the danger must be immediate.” Bk. II, Chap. I, Sec. V.

16 See the Budapest Articles of Interpretation of 1934 by the International Law Association. This Journal, Supplement, Vol. 33 (1939), p. 825. These articles are entirely unofficial and have not been approved by the signatories of the Pact. Query whether some of the interpretations are not contrary to the Argentine Anti-War Pact of 1933. This Journal, Supplement, Vol. 28 (1934), p. 79. They are contrary to the interpretation of the Pact as given by Secretary Kellogg before the Senate committee and by the committee’s report submitting the Pact for ratification. Cong. Record, Feb. 24, 1941, p. 1354 et seq.

17 R. R. Wilson, discussing the term, cites as examples, Turkey, Egypt, and Italy before entering the war, Spain, and perhaps Hungary and Rumania. He seems to indicate it is characterized by partiality and assistance short of use of force. “Non-Belligerency in Relation to the Terminology of Neutrality,” this Journal, Vol. 35 (1940), p. 121.

The term was used in the discussions of the Budapest Conference of 1934.

18 Jessup uses the term “supporting state” for a state which aids a defending state without armed force. He suggests it may discriminate in respect of economic and financial embargoes, withdrawal of diplomatic and consular representatives, financial, economic and other aid, fuel, provisions and repairs for battleships. Harvard Research, Report on Neutrality, ibid., pp. 879–880, 902. By analogy he calls attention to the similar attitude of several Latin American states after the United States entered the last war, p. 880 et seq.

18a Presumably in this case the public use is the national defense.

19 Supra, p. 499, note 5.

20 The Committee resolves:

“To recommend to the governments of the American Republics:

“(a) That they declare that the foreign flag vessels in American ports, the normal commercial activities of which have been interrupted as a consequence of the war, may now be utilized by the American Republics in accordance with the rules of international law and the provisions of their respective national legislations, in such manner as to promote the defense of their economies as well as the peace and security of the continent. The utilization of said vessels may be effected by the American Republics either through agreements with the owners of the vessels or by virtue of the right of each of the American Republics to assume complete jurisdiction and control over such vessels, and as they may deem it convenient to satisfy their own requirements.

[(b) That just and adequate compensation be made.]

“(c) That they reaffirm their full right to the free navigation of those vessels, both in their national and international trade, once they are under the flag of any one of the American Republics, and that they agree upon measures tending to facilitate the effective exercise of said right.” Senate Report 277, 77th Cong., 1st Session, p. 4.

21 “Some precedents of the seizure by neutrals of vessels belonging to belligerents were referred to as follows by Assistant Secretary Long at the executive session of your committee:

“(1) In November 1915 the Italian Government requisitioned thirty-four German merchant vessels in Italian ports. The German Government made no protest, hoping, no doubt, that Italy would join the central powers or would at least remain neutral.

“(2) In February 1916 the Portuguese Government requisitioned seventy-two German vessels in Portuguese ports. The alleged cause of the seizure was stated to be the economic situation created by the illegal destruction of Portuguese shipping by German submarines. The two nations were formally at peace although hostilities between their colonies in East Africa had taken place.

“(3) In May 1917 the Brazilian Government, having revoked its proclamation of neutrality, requisitioned forty-two German vessels. After Brazil’s declaration of war in November, they were leased to the French Government.

“(4) In August 1918 Spain requisitioned about ninety German vessels in Spanish ports. The Spanish Government declared that the seizure was indispensable for its existence, and apparently regarded the vessels requisitioned as substitutes for its own vessels sunk by German submarines, and consequently no compensation was payable.

“(5) Within the past few days France has requisitioned fifteen Belgian ships.” Senate Report 277, 77th Cong., 1st Sess., p. 5.

These precedents are referred to by Fenwick, ibid., pp. 543–544; Harley, this Journal, Vol. 13 (1919), p. 294 ff.; Bullock, British Yearbook, 1922–23, p. 116 ff.

The Senate debates did not regard these instances as establishing a rule of international law or as on all fours with the present situation. Senator Bailey believed that the rule of international law is to the contrary and that the bill will set a new precedent which may be followed by other nations. Cong. Record, May 14, 15, 1941; Senate Hearings, ibid., pp. 116–117.

22 Harvard Research in International Law, Report on Neutrality, ibid., p. 377.

23 Preuss, Lawrence, “State Immunity and the Requisition of Ships during the Spanish Civil War,” This Journal, Vol. 35 (1941), p. 279 Google Scholar, quoting Lord Atkin: “However the doctrine of exterritoriality is expressed, it is a fiction, and legal fictions have a tendency to go beyond their appointed bounds and to harden into dangerous facts.” Chung Chi Cheung v. The King [1939] A.C. 160 at p. 174. Also quoting Hill, J., in regard to Soviet ships: “It was not suggested that ships were to be governed by any principles other than those applicable to other chattels.” The Jupiter (1927), P. 122 at p. 144. Also quoting Lord Jamieson in approval in the El Candado, 63 Lloyds L. Rep. 83 at p. 87.

24 Fenwick, ibid., p. 218, quoting Cunard Steamship Co. v. Mellon, 262 U.S. 100 (enforcing the Volstead Act on foreign vessels), which regarded the fiction as “a figure of speech—a metaphor” and indicated that the national jurisdiction was “susceptible of no limitation not imposed by itself.”

See generally Harvard Research in International Law, Report on Territorial Waters, by G. G. Wilson, Comment on Art. 18, this Journal, Spl. Supp., Vol. 23 (1929), p. 307 ff.

25 Fenwick, ibid., p. 222. As to liberating a person under extradition on a foreign vessel entering port, see Hyde, ibid., Vol. I, pp. 403, 608. In the Lotus decision the Permanent Court upheld the jurisdiction of Turkey to prosecute an officer of a French vessel in port for a collision at sea resulting in the loss of a Turkish vessel and eight Turkish lives,

26 This was the amendment of Representative Culkin which was voted down in the House Committee and lost in the House, 220 to 160, and which was taken up by Senators Vandenberg and Clark and voted down in the Senate Committee and lost on the floor, 43 to 38.

27 Cong. Record, May 14, 1941, p. 4116.

28 For a discussion of what is an act of war see Eagleton, Clyde, “Acts of War,” This Journal, Vol. 35 (1941), p. 321 Google Scholar. He concludes that an act of war involves the employment of force, but that it does not create a state of war. “The act of war can be nothing less than an act of force—seizure of territory, blockade, landing of an armed force; but even such uses of force do not establish a state of war, nor do they lead in legal consequence to war.” Other factors must be added. The state affected “is free to make its own decision as to whether it will reply by war, and that decision does not in the least depend upon international law or etiquette.” He thinks “none of the measures thus far taken by the United States could be regarded as an act of war. . . . They do not measure up even to the stature of reprisals.” See J. B. Moore, Proceedings of American Philosophical Society, 1921, Vol. 60.

29 The Act of 1917, however, apparently did not make them forfeitable in the circumstances.