The discussion appearing recently in the newspapers to the effect that legislation is contemplated which would preserve American neutrality in time of war by our complete surrender of the doctrine of the freedom of the seas has uncovered an explosive subject. It is certainly apparent that we got into both the War of 1812 and the World War because of our insistence that the rights of American ships, American property, and American nationals on the high seas could not be violated beyond a certain limit. Our policy as a neutral has always been to maintain our right to the freedom of the seas, acknowledging, of course, the right of the belligerents to establish legal blockades and to prevent the shipping of contraband of war. This new proposition would, according to the press, yield our neutral rights and withdraw from our shipping the protection which has always been found under the American flag.
The rights of neutral sea-borne commerce are, like most questions in international law, not definitely defined. Not only do the contentions of individual nations conflict, but the views of any one nation are subject to great change depending upon where her immediate interests lie. It might therefore be interesting to consider what has happened to neutral merchant vessels in past wars and to inquire into the phases of international law concerning the destruction of neutral ships. As an approach to this subject the question of the treatment of belligerent merchant vessels will first be discussed.
Any study of the destruction of prizes must make a sharp division in both the law and the practice of nations between enemy and neutral vessels. Where a captured ship and her cargo clearly belong to the enemy, no question exists regarding the right of the captor to destroy the prize. Since the act of capture transfers the ownership of the vessel and its cargo to the government of the captor, the enemy owner cannot complain if destruction follows. In general, however, enemy prizes should be sent in for adjudication in order to settle questions regarding any neutral property on board. International law is very clear on this point, specifying that, while the settled rule is that prizes should be sent in, nevertheless, if such circumstances as the unseaworthiness of the prize, the danger of recapture, or the inability of the captor to spare a prize crew make it impracticable to send the prize in for judicial decision, the prize, if an enemy, may be destroyed. In all cases of destruction the law requires that visit and search be first conducted, that all persons on board be placed in safety, and that all documents be sealed and taken on board the capturing vessel for transmission to the prize court. Owners of any noncontraband neutral property so destroyed must look to the prize court for compensation.
Obviously sinking merchant vessels at sea is a measure resorted to by the weaker belligerent, for no one would voluntarily destroy valuable ships and cargoes if he could apply them to his own use. As a rule during the wars prior to 1914, enemy prizes were brought into the ports of the captor where prize courts condemned ship and cargo. This practice has always been followed by the British Navy. Exclusive of the World War, history records but three wars in which enemy prizes were regularly and as a matter of course destroyed at sea. Strangely enough the United States was a belligerent in all three. During the War of 1812, American naval commanders were instructed as follows:
Destroy all you capture, unless in some extraordinary cases that shall clearly warrant an exception. . . . The commerce of the enemy is the most vulnerable point of the enemy we can attack, and its destruction the main object; and to this end all your efforts should be directed. Therefore, unless your prizes should be very valuable and near a friendly port, it will be imprudent and worse than useless to attempt to send them in. A single cruiser, if ever so successful, can man but few prizes, and every prize is a serious diminution of her force; but a single cruiser destroying every captured vessel has the capacity of continuing in full vigor her destructive power, so long as her provisions and stores can be replenished either from friendly ports or from the vessels captured.
In all cases where American ships of war have destroyed enemy prizes, the rules of visit and search were complied with and all people on board the prize were saved.
While the right to sink enemy prizes is generally conceded, the question of the right to destroy a neutral prize is highly controversial. The controversy provoked by this question remained, however, almost entirely of academic interest up to the Russo-Japanese War because that war was the first in which a belligerent undertook to destroy neutral prizes at sea. The Russians sank five British vessels, two German, and one Danish. The most famous case was that of the British ship Knight Commander bound for Yokohama from an American port with a cargo of railway material. Russia had declared railway material to be contraband, so the captain of the Russian cruiser considered the Knight Commander a good prize. After removing the people on board, he burned the ship and cargo. The affair aroused intense indignation in England and the British government entered a stern protest. The Russian government officially justified the sinking as being an act of necessity, stating that she was sunk because of
the proximity of the enemy’s port, the lack of coal on board the vessel to enable her to be taken into a Russian port, and the impossibility of supplying her with coal from one of the Russian cruisers owing to the high sea running at the time.
The United States also protested the sinking in a communication to the Imperial Russian Government, but the position of our government at that time was delineated by Secretary of State Hay in a subsequent telegram in which he stated that he was “not prepared to say that in case of imperative necessity a prize may not be lawfully destroyed by a belligerent captor.”
Great Britain has always maintained the position that the destruction of neutral ships is not legal. Her attitude is well put by the distinguished authority, W. E. Hall, who says, regarding the duties of the captor of a neutral prize:
He must bring in the captured property for adjudication, and must use all reasonable speed in doing so. In cases of improper delay, demurrage is given to the claimant, and costs and expenses are refused to the captor. It follows as of course from the rule—which itself is a necessary consequence of the fact that property in neutral ships and goods is not transferred by capture—that a neutral vessel must not be destroyed; and the principle that destruction involves compensation was laid down in the broadest manner by Lord Stowell: “where a ship is neutral,” he said, “the act of destruction cannot be justified to the neutral owner by the gravest importance of such an act to the public service of the captor’s own state; to the neutral it can only be justified under any circumstances by a full restitution in value.” It is the English practice to give costs and damages as well; to destroy a neutral ship is a punishable wrong; if it cannot be brought in for adjudication it can and ought to be released.
The words of Lord Stowell which appear above, quoted by Hall, form a classic opinion in international law. While at first glance their meaning appears somewhat ambiguous, the intent apparently is that the right to destroy a neutral prize does not exist and that, if an error is committed, the neutral owner is entitled to full compensation. The British view, however, is not generally accepted. During the discussions at London in 1909, the Japanese delegation to the naval conference supported the British, but Japan has since indicated that she considers that neutral prizes may be sunk in case of necessity. Various Continental European states, notably Russia, France, and Germany, have maintained the right to destroy neutral vessels under certain conditions of military necessity. To this latter view the United States subscribes.
In questions regarding the laws of maritime warfare, the provisions of the Declaration of London carry much weight. It is true that the Declaration was not ratified. The standing and prestige of the members of the various delegations, however, the thoroughness of their labors, and the fact that the conclusions which were reached represented the best compromises among divergent views give the document strong authority.
A study of the Declaration of London results in the recognition of the general rule that neutral merchant vessels which cannot be sent into port for adjudication must not be destroyed. As an exception, in the event of pressing military necessity which involves danger to the warship, or impedes the success of the operations engaged in, a neutral merchant vessel which has been captured may be destroyed if she is liable to condemnation. In addition to the usual reasons for condemnation, that is, engaging in any of the several forms of direct unneutral service, the Declaration states, in art. 40, that
A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo.
When the contraband lists of the World War, embracing nearly every article of commerce, are considered it is seen that, under the Declaration of London, practically any neutral prize may be made liable to condemnation and destruction in case sending her in would involve “danger to the safety of the warship or the success of the operations she is engaged in at the time.” The practical meaning of art. 51 of the Declaration appears to be that a belligerent may destroy any neutral merchant vessel for which he is willing to pay compensation ; for by merely failing to present a justification for the destruction, the captor forestalls the inquiry into the validity of the capture and settles the matter by making full compensation. The Declaration is phrased, it is seen, in language capable of broad interpretation, depending upon circumstances and national interests. It operates not to afford neutral vessels total immunity from destruction, but, while recognizing the absolute necessity for destruction under certain exceptional conditions, to give neutral shippers compensation for the destruction of a vessel not subject to condemnation when it is destroyed because of military necessity. In all cases of sinking, “all persons on board must be placed in safety” and all the ship’s papers must be saved.
The United States has taken the position that military emergencies arise which make mandatory the destruction of a captured neutral vessel. The Instructions for the Navy of the United States Governing Maritime Warfare, in arts. 96 and 97, make it clear that an American naval commander may, in cases of urgent necessity, sink a captured neutral vessel, but that he must protect the people on board, and preserve all documents to protect the neutral owners in the subsequent court proceedings.
When we consider that the Russo-Japanese War of 1904 was the first war in which neutral prizes were destroyed at sea and that then the Russians sank only eight neutral ships, the destruction of neutral vessels by the Germans in the World War looms as an unprecedented procedure in the annals of maritime war. Professor Garner offers the following figures as representing the losses of neutral vessels sunk by German submarines and mines:
Norway 929
Denmark 172
Sweden 124
Holland 328
Spain 83
United States 20
Greece 60
Total Ships Sunk 1,716
Except in a few cases these neutral ships were sunk without thought for the safety or the lives of innocent people. While international law permits, under exceptional circumstances, the destruction of a neutral prize, in every case the act must be preceded by visit and search, and all people and papers on board must be saved. The submarine, obviously, can neither expose itself to the attacks of well-armed merchantmen nor provide a place of safety for their officers and crews. The Germans, therefore, in conducting unrestricted submarine warfare threw international law and considerations of humanity to the winds. They justified their conduct by asserting that the British violations of international law demanded retaliatory measures. The fact that the retaliation sank neutral ships and cargoes and sent to their deaths innocent neutral people seemed not to matter.
As is well known, the destruction of allied merchant vessels was staggering. Over 11,000,000 tons of allied shipping was sunk. Great Britain lost 40 per cent of her merchant marine.
At Washington in 1922 the representatives of the United States, Great Britain, France, Italy, and Japan signed a treaty separate from the Limitation of Armaments treaty and known as the treaty on Submarines and Noxious Gases. Mr. Elihu Root states that “this treaty is an attempt to crystallize, in simple and unmistakable terms, the opinion of civilization that already exists.” It sets forth the major rules of international law regarding the treatment of merchantmen, emphasizing the provision that “a merchant vessel must not be destroyed unless the crew and passengers have first been placed in safety.” The treaty then states that submarines must fully abide by these rules and that if they cannot effect a capture in conformity with the rules, the merchant vessel must be allowed to proceed unmolested. There is also the provision that any commanding officer who violates the rules shall be held guilty of piracy. The powers recognized the
practical impossibility of using submarines as commerce destroyers without violating, as they were violated in the recent war of 1914-18, the requirements universally accepted by civilized nations for the protection of the lives of neutrals and noncombatants, and to the end that the prohibition of the use of submarines as commerce destroyers shall be universally accepted as a part of the laws of nations they now accept that prohibition as henceforth binding as between themselves and they invite all other nations to adhere thereto.
The United States Senate advised the ratification of the Submarine and Noxious Gases Treaty. The failure of the French government to ratify prevented its acceptance by the five great naval powers.
It remained, therefore, for the London Naval Conference of 1930 to secure an agreement restricting the use of submarines. The agreement, furthermore, was signed by all five powers. The treaty states that “in their action with regard to merchant ships, submarines must conform to the rules of international law to which surface vessels are subject.” It goes on to say:
In particular, except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit and search, a warship— whether surface vessel or submarine boat—may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew, and ship’s papers in a place of safety. For this purpose the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board.
The extent of commerce destruction during the next war and its method of execution will depend, of course, upon the circumstances of the war, upon the military and naval power of the belligerents, and particularly upon the military and naval power of neutrals. If history means anything at all, it is clear that the belligerents will exert their utmost efforts to strangle the trade of their enemies.
It is perhaps safe to make but one prediction regarding commerce destruction— neutral maritime powers which have strong navies will be the only powers able to guarantee the rights of their nationals at sea. With regard to this contention, it is illuminating to quote the words of Colonel House, who, as personal representative of President Wilson, had wide and intimate association with the leaders of both groups of belligerents in the World War. Colonel House said:
If we had strengthened our Army and Navy when the forces of hell broke loose in Europe, both England and Germany would have been inclined to think before violating our rights. An America able to turn the scale of naval and military victory could have strangled the dragon of war before its fiery breath reduced civilization to ashes.
A man who does not know what has been thought by those who have gone before him is sure to set an undue value upon his own ideas.—M. Pattison.
If I am ready to deal with any situation, it is because I have foreseen what might happen.— Napoleon, Military Maxims.