131. POSITIVE OBLIGATIONS OF A NEUTRAL STATE

The Alabama Cases

Up to the period of the American civil war the opinion obtained among many that a vessel of war might be sent to sea from a neutral port with the sole liability to capture as legitimate contraband, with the exception that, if she was ready to go in condition for immediate warlike use, it was the duty of the neutral to prevent her departure. In 1863 during the American civil war this view was practically taken by the British court in the case of the Alexandra;1 but the vessel after her release was taken on a new complaint at Nassau and held until after the end of the war. Lawrence says that the attitude of the British Government in regard to this vessel, its purchase in 1863 of two iron-clad rams of the Messrs. Laird for the navy, the construction, destination, and intended departure of which occasioned the now famous correspondence between Lord Russell and Mr. Adams, the detention of the Pampero, which was seized in the Clyde, until the end of the American civil war, and the preventing the sale of "Anglo-Chinese gunboats against the advice of its own law officers," indicated that that government "had uneasy doubts as to the validity of the doctrine laid down in their law-courts and maintained in their dispatches." This doctrine would admit of a ship of war going to sea from a neutral port without arms, which she might receive on the high seas from another vessel which had sailed from the same port. For example, the Alabama left Liverpool in 1862 ready for warlike use, but without warlike equipment. This and her crew were received on the high seas from other vessels which had cleared from Liverpool; and her career as a Confederate cruiser then began. The cases of the Florida, the Georgia, and the Shenandoah were almost identical. The spoliations committed by these vessels led to the Alabama claims, the British maintaining that the American contention that it was the duty of a neutral to prevent the departure of all vessels that could reasonably be expected as about to be used for warlike purposes was unsound. The Alabama case and kindred cases have produced much specula1 Attorney Gen'l v. Sillem et als, 2 Hurlstone v. Coltman, Exchequer Reports, 431.

Page 544. For the cases of the "Pampero" and the two iron-clad rams, see Wheat. D., note p. 572 et seq.

The American view may be found in Cushing's "Treaty of Washington," and the British in Bernard's "Historical Account of the Neutrality of Great Britain during the American Civil War."

tion as to the establishment of a true and correct rule. After the enactment of the American neutrality statutes in 1818, there were numerous decisions of the United States courts to the effect that the intent was to govern, that is, if the purpose was to send articles of contraband, with the risk of capture, to a belligerent's country for sale, the neutral government had nothing to say, but if the purpose was to send out a vessel to prey on the commerce of a friendly power, then the neutral government should prevent her departure. It must be admitted that the rule is hardly satisfactory.1

Hall contends that the true test should be "the character of the ship itself." If built for warlike use, the vessel should be detained; if for commercial purposes, she should be allowed to depart. This rule has at least one element of fairness and sense. It is not always possible to get at intent, but the character of the vessel is likely to reward observation and scrutiny."

Regret has been expressed by many writers that the award of the arbitrators appointed under the Treaty of Washington of 1871, upon the Alabama claims, has proved of so little value as a precedent upon the liability of a neutral power for the departure from its ports of vessels fitted out and equipped for the destruction of belligerent com

merce.

Article VI of the Treaty provided that the Arbitrators should be "governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to have been applicable to the case. "A neutral Government is bound

"First to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

'Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

"Thirdly, to exercise due diligence in its own ports and waters, and, 1 See Wheat. D., note p. 553 et seq. • Hall, p. 612.

as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

The British Government declared that it "cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned" arose but "in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that her Majesty's Government had undertaken to act upon the principles set forth in these rules.

"And the high contracting parties agree to observe these rules as between themselves in the future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them."

The phrases "due diligence" and "base of naval operations" gave rise to a difference of opinion, as also the last part of paragraph "First" relative to preventing the departure of vessels intended to carry on war and adapted for warlike use.

The contentions and the decision relative to the last point were as follows:

3

1. THE BRITISH CONTENTION

This was that the only duty of Great Britain applied to the departure of the vessel originally, and that, if she escaped, and afterwards as a duly commissioned war-ship entered a British port, there was no obligation to detain her." The case of the Schooner Exchange v. M'Faddon was cited, in which a libel was filed in 1811 against that vessel, then in American waters, as an American vessel unlawfully in the custody of a Frenchman, the libelants contending that in December, 1810, while pursuing her voyage she had been forcibly taken by a French vessel at sea. The Attorney General suggested that she was a public armed vessel of France, visiting our waters as a matter of necessity. Chief Justice Marshall decided that as a public vessel of war coming into our ports and demeaning herself in a friendly manner she was exempt from the jurisdiction of the country.

1U. S. Treaties, 481.

2

Argument of Sir R. Palmer in the "Argument at Geneva," published by the United States at p. 426 et seq.

37 Cranch, 116.

2. THE AMERICAN CONTENTION

This was that if a Confederate cruiser, which had originally escaped, afterwards came into a British port, her commission was no protection, as it was given by a government whose belligerency only, not sovereignty, had been acknowledged.1

3. THE AWARD OF THE TRIBUNAL

This award exceeded the claim of the United States in deciding that "the effects of a violation of neutrality committed by means of the construction, equipment and armament of a vessel are not done away with by any commission which the Government of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence," that "the privilege of extraterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality," and that "the absence of a previous notice cannot be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own condemnation." "

That the decision of the Tribunal has not become a precedent is quite generally conceded. Lawrence asserts that the award seems "to have been dictated more by a regard for equitable considerations than by reference to principles hitherto accepted among nations"; that other nations have refused to accede to the "three rules" and "that it has been doubted whether they bind the two powers which originally contracted to observe them."3

It is to be observed, however, that at the present time a cruiser is of such peculiar construction and depends for her efficiency on such a large outlay of money that an honest neutral is likely to have abundant proof of her character and hence the best reasons for detaining her.

1 Argument of Mr. Evarts in "Argument at Geneva," p. 448 et seq. 2 Decision and Award of the Tribunal of Arbitration in 3 Wharton, § 402 a. 'Pp. 553, 554.

133. CONTRABAND

The Peterhoff, 5 Wall. 28, 62

The Peterhoff, a British steamer, bound from London to Matamoras in Mexico, was seized in 1863 by a United States vessel. It was held that the mouth of the Rio Grande was not included in the blockade of the ports of the Confederate states; that neutral commerce with Matamoras, a neutral town on the Mexican side of the river, except in contraband destined to the enemy, was entirely free; and that trade between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, then an enemy of the United States, was not unlawful on the ground of such violation. Questions of contraband were also considered, and Chief Justice Chase concluded: "Considering . . . the almost certain destination of the ship to a neutral port, with a cargo, for the most part, neutral in character and destination, we shall not extend the effect of this conduct of the captain to condemnation, but we shall decree payment of costs and expenses by the ship as a condition of restitution."

The Commercen, 1 Wheat. 382

In 1814, during the war between the United States and Great Britain, a Swedish vessel bound from Limerick, Ireland, to Bilboa, Spain, with cargo of barley and oats, the property of British subjects, was seized and brought into an American port. The cargo was shipped for the sole use of the British forces in Spain. The cargo was condemned.

134. PENALTY FOR CARRYING CONTRABAND

The Jonge Tobias, 1 C. Rob. 329

This was a case of a ship taken on a voyage from Bremen to Rochelle, laden with tar. The ship was claimed by one Schraeder and others. Schraeder, who was owner of the cargo, withheld his claim, knowing it would affect the ship. The cargo and his share of the vessel were condemned in 1799, and an attestation was required of the other part owners of the vessel that they had no knowledge of the contraband goods.