Imágenes de páginas
PDF
EPUB

Since the Declaration of Paris of 1856 a blockade to be binding must be effective, which means, according to the Anglo-American practice, that the force maintaining the blockade must be sufficient to make it dangerous for neutrals to enter. Thus, the interference with neutral commerce by the establishment of a paper blockade of ports in the hands of insurgents has in numerous cases been held to involve the responsibility of the state.1 Similarly, erroneous notice of the blockade

The impartial student of international law must have greeted with astonishment Great Britain's recent radical departure from the accepted principles of maritime law in war, a course grievously subversive of the rights of neutrals. It seems inconceivable that Great Britain could have expected neutral nations to consent to the practical abrogation of the distinction between absolute and conditional contraband in the matter of hostile and innocent destination, and of the presumptions thereto attaching, as well as the remarkable enlargement of the contraband lists. The Order in Council of October 29, 1914 provides that notwithstanding the provisions of Art. 35 of the Declaration of London, which renders conditional contraband liable to capture only if destined "for the use of the armed forces or of a government department of the enemy state," conditional contraband "shall be liable to capture on board a vessel bound for a neutral port if the goods are consigned 'to order,' or if the ship's papers do not show who is the consignee of the goods or if they show a consignee of the goods in territory belonging to or occupied by the enemy." (According to press reports, Germany now seems to have proclaimed a somewhat similar rule.) Moreover, "the owner of the goods" must "prove that their destination was innocent." Not only has the immunity of conditional contraband from the application of the doctrine of continuous voyages been practically set aside, but conditional contraband bound for any neutral port, if consigned "to order" is confiscable. Moreover, the established rule that the captor has the burden of proving the hostile destination of conditional contraband, a rule which Great Britain earnestly supported during and after the Russo-Japanese War, has been completely reversed by the Order. It is interesting to compare Sir Edward Grey's contention in the Oldhamia case against Russia, Jan. 4 and Aug. 22, 1910, Misc. No. 1, 1912, Cd. 6011, pp. 15-17. Great Britain has left very little on the non-contraband list. In addition, if a neutral vessel has proceeded to an enemy port with false papers, she is liable to capture and condemnation "if she is encountered before the end of her next voyage." Unless neutral governments have acquiesced in these Napoleonic restrictions upon neutral commerce, and thereby estopped themselves from supporting diplomatic claims of their citizens sustaining injury by these violations of international law, it would seem that Great Britain is laying the ground for a large number of just pecuniary claims by neutral nations on behalf of their citizens. The recently established "submarine blockade" of Great Britain by Germany, which has already resulted in the sinking of neutral ships, and Great Britain's recently instituted quasi-blockade of Germany, incidentally interdicting commerce with neutral European ports, will undoubtedly give rise to numerous pecuniary claims.

1 Comp. Gen. des Asphaltes (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 331,

of a port causing an abandonment of the voyage was held to justify an award. The rules relating to notice must be strictly followed, except in the case of a vessel having an intention to run a blockade.2 The penalty for violation of the blockade is confiscation of vessel and cargo, for knowledge of the owner of the cargo is presumed. Numerous international claims have been brought arising out of the decisions of prize courts which had condemned and confiscated vessels for violation of a blockade.3

4

Prize courts are established in the interests of neutrals and belligerents. The belligerents wish to be protected by a decision of these municipal courts, instituted by themselves, against the claims of neutrals based on alleged unjustifiable captures. Numerous claims have been paid on account of unlawful seizures of neutral vessels or cargo, where the prize court held the seizure to have been illegal and without probable cause. As prize courts are municipal courts interpreting international law, their judgments are not necessarily internationally binding.5 Indemnities have frequently been awarded by arbitral courts or have been arranged through diplomatic settlements on claims arising out of wrongful condemnations by national prize courts. By Convention XII 336; Orinoco Asphalt Co. (Germany) v. Venezuela, ibid. 586; De Caro (Italy) v. Venezuela, ibid. 810; Martini, ibid. 819, and cases before the Anglo-Chilean Tribunal of 1893: Williamson, Balfour (Gt. Brit.) v. Chile, Recl. pres. al Trib. Anglo-Chileno, III, 335; St. Mary's Bay, ibid. 557.

1 Boyne, Monmouth and Hilja (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3923-3928.

* Hale's Rep. 127. See Portendic claims, in which France was held liable for failure to properly notify a blockade. 30 St. Pap. 581; 34 ibid. 1036; 42 ibid. 1377; Moore's Arb. 4937, and note in Lapradelle's Recueil, p. 538.

Moore's Arb. 3885-3923.

See, e. g., cases of the British schooners E. R. Nickerson, and Wary illegally seized during war with Spain, Sen. Doc. 396, 57th Cong., 1st sess., 32 Stat. L. 552; The Eastry (Gt. Brit.) v. Japan, Takahashi, op. cit., 739, 358; Manouba (France) v. Italy, supra, 7 A. L. I. J., 629. Certain cases reported in Moore's Arb., ch. LXVI, p. 3815 et seq.

As between private parties, the decree of a prize court is a judgment in a proceeding in rem, and hence is conclusive against all the world as to matters within its jurisdiction. Cushing v. Laird, 107 U. S. 69.

Certain cases in Moore's Arb., ch. LXVI, p. 3815 et seq. and cases in RussoJapanese War, Takahashi, op. cit.

See also treaties between United States and Venezuela, May 1, 1852, Malloy, II, 1842; United States and Two Sicilies, Oct. 14, 1832, 20 St. Pap. 277; France and

of the Second Hague Conference, as yet unratified, an international prize court to serve as a court of appeal from decisions of national prize courts was provided for.1

A captured merchant vessel may not as a rule be destroyed instead of being conducted to a port of a prize court, since the transfer of title only becomes final after adjudication by a prize court. The few exceptions to this rule are based upon necessity, each country having its own regulations. A frequent justification for destruction is the unseaworthy condition of the prize which prevents sending her in for adjudication, or the inability of the captor to spare a prize crew. If the capture is subsequently held by a prize court to have been lawful, the neutral owner of goods on the destroyed vessel appears to have no claim to indemnity.3

The seizure by a belligerent of any enemy or neutral vessel or cargo within the territorial waters of a neutral Power has given rise to numerous cases before prize courts. It is clear that such violation of neutral territory renders the belligerent liable to the neutral, and the latter may rightfully demand the restitution of the captured vessel.1 Lord

Brazil, Aug. 21, 1828, 15 St. Pap. 1242; United States and Portugal, Jan. 19, 1832, 19 St. Pap. 1379; Great Britain and Brazil, May 5, 1829, 18 St. Pap. 689; France and United States, July 4, 1831, Moore's Arb. 4447-4485.

1 1 Oppenheim, § 192; Scott, J. B., The Hague Peace Conferences, ch. X, pp. 465– 511.

2 See Oppenheim, § 194, in which numerous grounds are stated which have justified destruction. Under the Oxford rules of the Institute of International Law (1913), destruction is only permitted if the safety of the captor ship or the success of actual present military operations requires it (Art. 104). In Arts. 107, 113 and 114 indemnities are provided for in case the capture, seizure or destruction is held unwarranted. See article by C. H. Huberich, The destruction of neutral prizes and the German prize code, 10 Illinois L. Rev. (1915), 5–10.

3 Oppenheim, § 194, and the Glitra, Hamburg prize court, Jan. 29, 1915 (note in 10 Ill. L. Rev. [1915], 10). But see probable effect of Art. 3 of Convention XII, Scott, 485. The leading authorities on German prize law are of the opinion that compensation is due to the neutral owner of goods on the destroyed vessel. Citations by C. H. Huberich in 10 Illinois L. Rev. (1915), 10.

4 Art. 3 of Convention XIII of the Second Hague Conference makes it obligatory upon such neutral Power to "employ the means at its disposal to release the prize with its officers and crew." Oppenheim, II, § 360; Scott, I, 620 et seq. See The Florida, 101 U. S. 37, a Confederate cruiser seized by United States in territorial waters of Brazil. On the reparation made to Brazil, see Moore's Dig. VII, 1090. See

Stowell and Justice Story in several prize cases decided in the early part of the nineteenth century, held that the claim for restitution could be made by the neutral government only,1 and not by the captured vessel, for as between the belligerents the capture was rightful. However, the British-American Mixed Commission of 1871, in passing upon the claim of the Sir William Peel, which was decided adversely to the vessel by the United States Supreme Court, held that a neutral vessel could institute a claim for capture in neutral waters, regardless of any protest by the territorial neutral.3 Affirmative duties are now incumbent upon a neutral to prevent any violation of his neutrality by a belligerent seizure in his territorial waters, for a breach of which his own responsibility may properly be invoked. In land warfare, injuries inflicted by belligerents in permitting bullets to fall into neutral territory, constitute a violation of the territorial sovereignty of the neutral and justify international reclamation against the wrongdoing belligerents. Violation of a nation's neutrality by a belligerent entails international responsibility.

§ 107. Neutral Obligations.

4

The state of war casts upon neutrals numerous duties incident to the maintenance of neutrality, for a violation of which duties liability is incurred either toward the belligerent or toward neutrals who sustain injury thereby. A neutral must prevent a belligerent from setting

also The Chesapeake, Moore's Dig. VII, 937, and cases mentioned in same volume, § 1334.

1 The Diligentia, 1 Dodson, 412; Eliza Anne, 1 Dodson, 244 (dictum); The Anna, 5 Rob. 373; The Sir William Peel, 5 Wall. 517; The Anne, 3 Wheat. 447. See also Dana's Wheaton, § 430 and note; the Twee Gebroeders, 3 Rob. 162, and Oppenheim, II, § 362.

* The Anne, 3 Wheat. 447; The Sir William Peel, 5 Wall. 517.

The Sir William Peel (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3948; Lawrence's Wheaton, 2nd ed., 716.

* Oppenheim, II, §§ 360–363. See Commodore Stewart's case, 1 Ct. Cl. 113. It will not be possible to refer to these duties in any detail. These obligations of neutrals are now largely codified in Convention V of the Second Hague Conference respecting the rights and duties of neutral powers and persons in war on land and in Convention XIII concerning the rights and duties of neutral powers in maritime war. See Scott, Hague Peace Conferences, I, 541 et seq., 620 et seq.; Oppenheim, II, § 313 et seq.; Westlake, II, 117-119, 284-287, 321-331; Moore's Dig. VI, § 1050; Dupuis,

up prize courts on his neutral territory. This practice was not considered illegitimate in the eighteenth century, but after the United States in 1793 had refused permission to France to set up prize courts in United States territory, it became the recognized rule that such a use of neutral territory by belligerents is a violation of neutrality and entails responsibility on the part of the neutral.1 This rule is confirmed by Article 4 of Convention XIII of the Second Hague Conference.2

So far as lies in his power, a neutral must prevent a belligerent manof-war from cruising within his territorial waters for the purpose of capturing enemy vessels leaving his ports. It has already been observed that a neutral must use diligence to prevent hostilities being carried on in his territorial waters, and that an enemy attacked may invoke this neutral protection, for a failure to extend which the neutral is liable.3

One of the most important duties which the obligation of impartiality makes incumbent upon neutrals is the use of "due diligence"-in Articles 8 and 25 of Convention XIII, it reads "the means at [their] disposal"-to prevent their subjects from building and fitting out vessels within their jurisdiction or the departure of vessels intended

Le droit de la guerre maritime, Paris, 1912, ch. 12. On Convention V, see A. S. de Bustamente in 2 A. J. I. L. (1908), 95–120; Einicke, P., Rechte and Pflichten der neutralen Mächte im Seekrieg, Tübingen, 1912.

1 Wheaton, as representative of the United States, obtained heavy indemnities from Denmark for such breaches of neutrality during the Napoleonic Wars. Treaty of March 28, 1830, Moore's Arb. 4549–4573. Spain was similarly held liable under the Florida treaty of Feb. 22, 1819, Moore's Arb. 4487, 4513. The United States assumed heavy liabilities under Art. 7 of the Jay treaty of Nov. 19, 1794, for such use of its territory by France. Moore's Arb. 3967 et seq., 3981; Moore's Dig. VI, § 1050. Oppenheim, II, § 327.

3 But where the claimant vessel began the hostilities upon her captor, she forfeits neutral protection. The Anne, 3 Wheat. 435. The claim of the Brig General Armstrong (U. S.) v. Portugal, attacked by a British vessel in Fayal, was dismissed because the brig had failed to notify the Portuguese authorities of the necessity of protection and because they were not physically in a position to protect. Moore's Arb. 1071-1132; Moore's Dig. VI, 1000 and authorities there cited. The decision has been severely criticized. Lapradelle and Politis, Recueil, I, 650 et seq. If the recent report of the sinking of the German cruiser Dresden by a British war-vessel in territorial waters of Chile proves true, it is possible that Germany will make a claim upon Chile, and it seems certain that Chile would have a good claim against Great Britain.

« AnteriorContinuar »