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conduct of bombardment.1 Among other limitations, the bombardment of undefended towns is prohibited; the commander must endeavor to notify his intention to bombard; hospitals, churches, schools, etc., must so far as possible be spared; and bombardment for non-payment of contributions by coast towns is prohibited. In like manner, submarine mines should be laid according to certain rules.2

The same principle which exempts the state from liability for injuries to private property caused by military necessity, extends to the incidental and consequential results of a state of war. Thus, interference with business, prohibitions of trade between enemy subjects and the limitations upon the trade of neutrals with belligerents in the matter of contraband, etc., the accidental destruction of innocent property by misdirected shots, arrests and detentions on suspicion, and similar injuries incidental to a state of war must be borne by the individuals sustaining the loss without a right to compensation.3

1 These rules are set out in Oppenheim, II, §§ 158, 212, 213. See also Rules of the Institute of International Law, adopted at Oxford, 1913, Arts. 25 and 27, 15 R. D. I. n. s. (1913), 677.

2

* Failure of Turkey properly to notify neutral shipping of the laying of certain contact mines in the harbor of Smyrna is the principal ground of claim in the case of the Nevada (U. S.) and Senegal (France) v. Turkey. Most of the Powers have not yet agreed upon rules for the laying of submarine mines. It is reported that Austria has consented to compensate certain Italian subjects whose vessels were blown up recently by floating mines in the Adriatic. Neutral vessels injured by floating mines probably have just claims against powers which may be proved to have sowed mines in the open sea.

'On war claims arising out of direct and indirect injuries to private property, see Lawrence's report on war claims, etc., H. Rep. 262, 43rd Cong., 1st sess., and FeraudGiraud, Recours à raison des dommages causés par la guerre, Paris, 1881, 85 p. Reprinted from La France Judiciaire, Pamphlets, Dept. of State, v. I; Rule 2 of Nicaraguan Mixed Claims Commission, 1911. Thus the following claims were disallowed as being accidents due to a state of war: burning of buildings as a ruse to deceive the enemy (Opin. of Judge Adv.-Gen., H. Rep. 262, supra, p. 57); private liens destroyed by capture of public movables [Barrett (Gt. Brit.) v. U. S., May 8, 1871, Howard's Rep. 60, Moore's Arb. 2900]; firing guns across private land (Peabody v. U. S., 43 Ct. Cl. 5); accidental destruction of innocent property involved in the destruction of public stores and works of the enemy [Various claims (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3677]; claims before Anglo-Chilean Tribunal, 1893, Duncan, Recl. pres. al. Trib. Anglo-Chileno I, 536; Hübner, ibid. III, 20; Club Inglés, ibid. III, 47; Dawson, ibid. III, 55; Cesarino (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 770.

Arrests and detentions on suspicion. Hannum (U. S.) v. Mexico, July 4, 1868,

Unauthorized pillage by uncontrollable soldiery has been almost uniformly considered to be a hazard of war and to relieve the government from liability. A similar principle governs the wanton destruction of private property by unofficered soldiers.2 The claimant has the burden of proving that the injury was committed by authority of commanding officers.3

Pillage is now formally prohibited by Article 47 of the Hague Regulations, and under a broad interpretation of Article 3 of Convention IV of the Second Hague Conference, it is not improbable that pillage by unofficered soldiers of a regular army may be held to cast responsibility upon the state. Even property of enemies found on the battlefield may no longer be indiscriminately confiscated as booty.5 Only military

Moore's Arb. 3243; Cramer (U. S.) v. Mexico, ibid. 3250; Forwood (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 84; Gatter (U. S.) v. Mexico, Moore's Arb. 3267; Jarman et al. (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3308. Thus a state may temporarily restrain the departure of merchant vessels, to insure the secrecy of naval operations. But see Bailey (The Labuan), Gt. Brit. v. U. S., May 8, 1871, Hale's Rep. 171, Moore's Arb. 3791. Where the military detention is unnecessarily long or harsh, awards have been made. Berron (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3960; Story (U. S.) v. Spain, Feb. 12, 1871, ibid. 3269; Bigland (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 161.

Interference with business gives no right to compensation. Grant (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 162; Kerford and Jenkins (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 3788; Money (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 168; Heny (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 14, 25; Dix (U. S.) v. Venezuela, ibid. 7; Genovese (U. S.) v. Venezuela, ibid. 174; Martini (Italy) v. Venezuela, Feb. 13, 1903, ibid. 819. Workmen of claimants compelled to serve in national guard. Siempre Viva (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3784; Cole (U. S.) v. Mexico, ibid. 3785, and similar awards there cited. Government may order suspension of traffic on railroad in war area [Great Venezuelan R. R. (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 640] and prohibit traffic of certain residents with towns in insurrection [Longstroth (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3784].

1 Antrey (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3672; Dresch (U. S.) v. Mexico, ibid. 3669; Weil, ibid. 3671; Schlinger, ibid. 3671; Buentello (Mexico) v. U. S., ibid. 3670; Cole (U. S.) v. Mexico, ibid. 3670; Claims of Great Britain v. Chile, Sept. 26, 1893, La Fontaine, 455. Sen. Rep. 544, 55th Cong., 2nd sess., 6.

2 Rule 3 of Nicaraguan Mixed Claims Com. 1911; Barclay (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3678; burning of Columbia (Gt. Brit.) v. U. S., ibid. 3675. 3 Weil (U. S.) v. Mexico, Moore's Arb. 3671; Michel, ibid. 3670.

Oppenheim, II, §§ 143, 213. See also Art. 7 of Convention IX of Second Hague Conference.

5 See Art. 14 of Hague Regulations and Oppenheim, II, § 181.

papers, arms, horses, carts, etc., may be appropriated as booty, although experience has shown that it is difficult to hold soldiers in check and carry out this regulation to the letter.

While the belligerent necessity for a particular destruction of private property is usually within the discretion of the commanding officer, international commissions may pass upon the legitimacy of war measures in a given case.1 Thus awards have been made on numerous occasions for wanton and manifestly unnecessary acts of destruction and pillage by the military forces of the government.2 The destruction of private property in war where no military end is served is illegitimate. This rule gained universal recognition during the nineteenth century, and it is now expressly provided by Article 23 (g) of the Hague Regulations that "to destroy enemy's property, unless such destruction . . . be imperatively demanded by the necessities of war, is prohibited." One of the most important results of this codification of the rules of war has been the enlargement of the sphere of immunity of private property on land from the injurious consequences of the war. Vattel, as already observed, was the first to draw a clear distinction between

1 Rule 6 of Spanish Treaty Claims Commission. In Rules 7 and 8 the Commission prescribed definite limitations to concentration and devastation as legitimate war measures. Final Rep., p. 4. Award of the Commission in Tuinucu v. U. S., No. 240. The opinion of the military authorities as to the necessity of a destruction is not ordinarily justiciable by the regular courts. Ex parte Marais (1902), A. C. 109. See also Wentworth v. U. S., 5 Ct. Cl. 309.

Usually with respect to neutral's property. Quotations from publicists and state papers in Moore's Dig. VI, § 1037; Chourreau (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3705; Du Bois (U. S.) v. Chile, Aug. 7, 1892, ibid. 3712; Moss (U. S.) v. Chile, May 24, 1897 (extending 1892 commission) Report, 1901, No. 25; Rule 5 of Span. Tr. Cl. Com.; S. B. Crandall in 4 A. J. I. L. 820; Award of King Oscar on Samoan claims of Germany against Great Britain and United States, Convention Nov. 7, 1899, La Fontaine, 613, for unwarranted military action; Strobel's Report, item V on British claims against Chile, For. Rel., 1896, 35 et seq., Moore's Arb. 4930; Shrigley (U.S.) v. Chile, Aug. 7, 1892, Moore's Arb. 3711-12; Peruvian Indemnity, Mar. 17, 1841, Moore's Arb. 4591; Willet (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3743; Brooks (U. S.) v. Mexico, July 4, 1868, ibid. 3672; Johnston, ibid. 3673 (defendant government held to have burden of proving damage necessary); Jeannotat, ibid. 3673; H. Rep. 386, 22nd Cong., 1st sess., 14; Indus (U. S.) v. Mexico, Moore's Arb. 3718 (violation of rules of war by selling captured vessel without determination of prize courts). For extracts dealing with liability for violations of rules of civilized warfare, see Wharton's Digest, II, § 225. See Rule 18 of the Rules of the Institute of International Law on Naval Warfare adopted at Oxford, 1913.

the injuries to property due to imperious and immediate military necessity, for which compensation is not generally due, and the more deliberate use of or injury to private property for some public belligerent purpose, analogous to eminent domain, for which the state owes compensation to the individual.1 It has not always been easy to draw the line between imperious unavoidable necessity and a deliberate act of use, occupation or destruction involving an element of choice. Yet in a general way, international commissions have endeavored to maintain the distinction by making awards for various kinds and degrees of appropriation of private property for public belligerent purposes, and municipal legislation and courts have also recognized the distinction.

§ 104. Appropriation of Private Property.

A long line of decisions has established the principle that the appropriation of private property for military purposes involves the responsibility of the state. That such a use justifies the taking is uniformly

1 Vattel, Bk. III, ch. 15, § 232.

2 Mason v. U. S., 14 Ct. Cl. 59; Waters v. U. S., 4 Ct. Cl. 299; Kimball v. U. S., 5 ibid. 252; Heflebower v. U. S., 21 ibid. 228, 237; Grant v. U. S., 1 ibid. 41, 43-44 (a leading case); Sen. Rep. 544, 55th Cong., 2nd sess., 6. The Court of Claims has proceeded on the theory of implied contract and intention to pay. The U. S. Supreme Court leans more directly towards the theory of eminent domain. Mitchell v. Harmony, 13 Howard, 113, 134; U. S. v. Russell, 13 Wall. 36.

Saulnier (U. S.) v. Mexico, March 3, 1849, Moore s Arb. 3715; Hollenbeck (U. S.) v. Costa Rica, July 2, 1860, ibid. 3717 (building burned down in operations for defending town); Baker (U. S.) v. Mexico, July 4, 1868, ibid. 3668 (cattle and horses taken by Mexican army); Marks (U. S.) v. Mexico, ibid. 3722, Hall, ibid. 3722; Elliott, ibid. 3720; Bartlett, ibid. 3721; Cole, ibid. 3721; The Macedonian (U. S.) v. Chile, Nov. 10, 1858, ibid. 1465; cases cited in Hale's Rep. 44, Moore's Arb. 3688, Commission of May 8, 1871, and Henderson (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3728; Wilkinson, ibid. 3736; Braithwaite, ibid. 3737; Adlam, ibid. 2552. Means (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3706 (property destroyed in friendly territory to give better range to guns); Labrat (France) v. U. S., ibid. 3706; Shrigley (U. S.) v. Chile, Aug. 7, 1892, ibid. 3712; Dix (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 7; Kunhardt (U. S.) v. Venezuela, ibid. 63, 69; Spanish Treaty Cl. Com. Final Rep., May 2, 1910, pp. 15-17 (allowances for property used by Spanish authorities, regardless of the purpose); Reyes, No. 153; Del Valle, No. 222, No. 278; Yznaga, No. 279; Constancia, No. 196. Principles of allowance in Mixed Claims Commission in China, following revolution of 1911.

See Act of April 9, 1816, § 5 (3 Stat. L. 261); Act of July 4, 1864 (13 Stat. L. 381). The Act of Mar. 3, 1871 (16 Stat. L. 524) establishing Southern Claims Com

admitted. The rules relating to requisitions and contributions adopted at recent Hague Conferences, which will be examined presently, endeavor to give precision to the practice of appropriation of private property in belligerent territory. Under the present Hague Regulations private enemy real property cannot be appropriated. Private movables which may serve as war material may be appropriated, but they must be restored at the conclusion of peace and indemnities paid (Article 53). They must be acknowledged by receipt, and as between the belligerents, the treaty of peace determines upon whom shall fall the duty of making compensation. Personal property other than war material may not as a rule be appropriated. Article 46 provides that "private property may not be confiscated." But under exceptional circumstances of necessity, where there is no time for ordinary requisitions of food, etc., or where the property has been abandoned by its owner, the belligerent may properly seize it. It has already been noted that private enemy property found in belligerent territory at the outbreak of war or brought into it during the war may not be confiscated.

When the invading belligerent becomes a military occupant he is under still greater restrictions with respect to private property, which is subject to appropriation only under the rules governing requisitions and contributions.2

mission provided that "stores and supplies furnished by or taken from loyal citizens in the insurrectionary states should be paid for." Conventions of July 4, 1868 with Mexico, May 8, 1871 with Great Britain, and Jan. 15, 1880 with France permitted of similar payments to subjects of those countries. But where the person or property was tainted with unneutral character no recovery was allowed. Davidson, No. 66, Hale's Rep. 43. See House Doc. 460, 56th Cong., 1st sess., 9; order of Sec'y of War, June 22, 1862, Moore's Arb. 1036; proclamation of the President, July 13, 1898; Sen. Doc. 318, 57th Cong., 1st sess., 19. See Abandoned or Captured Property Act, March 12, 1863 (12 Stat. L. 820), Moore's Dig. VI, 901 and Moore's Arb. 3745. See also Lawrence's Rep. supra; Whiting's war powers under the Constitution, p. 340; article by Wm. King, War claims for property, 20 Amer. Law Reg. (1881), 227, 233. See also a few pertinent extracts in Moore's Dig. VI, § 1034.

1 Oppenheim, II, 170 et seq. See the Bulgarian decree of Feb. 25, 1913 to the effect that private real property abandoned by its Mussulman owners would become the property of Bulgaria. This is contrary to Art. 46. 40 Clunet (1913), 1043. On the principles followed by Greece during the occupation of Salonica see Maccas in 20 R. G. D. I. P. (1913), 230 et seq.

The military occupant's relation to public property is discussed by Oppenheim, II, § 134 et seq.

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