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there is neutral cargo on board, and if there is any doubt as to the captor's power to bring such a vessel to adjudication, it is his duty to release her.7 Lord Stowell, in a case decided in 1819 8 went so far as to declare that the destruction of neutral property without bringing it in for adjudication "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 such circumstances, by a full restitution in value." Where neutral lives, instead of neutral property, are destroyed, restitution in full value is impossible.
In the course of the discussion relating to neutral vessels, Germany has modified her original warning that, in order to avoid mistakes, such ships keep entirely away from the war zone, by suggesting that such vessels when navigating the war zone be convoyed or be made recognizable as neutral by special markings. The reasons given for requiring neutrals to take these precautions is that British ships are sailing under neutral flags, and that neutral ships sailing under their own flags may be mistaken for enemy ships. Here again Germany seeks to impose upon neutrals an entirely new and illegal burden. The disguising of the ships of belligerents is a longstanding practice of naval warfare, and is expressly recognized in the German Prize Code. It is a matter over which neutrals have no control and they have never been punished for its exercise. Indeed, one of the chief reasons for recognizing the right of visit and search of vessels flying neutral flags is precisely to determine if they are entitled to fly the neutral flag. The onus of proof of belligerent nationality has always rested upon the captor, but Germany now seeks to relieve herself of this duty and to impose it upon neutrals by forcing them, under penalty of destruction and death, to establish their neutral character by external signs. The United States was, therefore, fully justified in ignoring such suggestions. Further ample and sufficient reasons for disregarding them will also appear upon slight reflection. To acknowledge Germany's right to sink on sight vessels not distinctively marked as neutral would, by implication, be an acquiescence in her claim to sink on sight other neutral vessels not so marked and enemy vessels which may have neutral persons and cargoes on board. The convoying of American vessels bound for enemy ports would in addition give Germany an opportunity to insist that American vessels
7 The Leucade, 2 Spinks, 228, 231. 'The Felicity, 2 Dod. 381.
bound for German or neutral ports be also convoyed and thus embroil the United States in the disputes between Germany and her enemies on the question of imports into Germany.
A further excuse for the acts of her submarines is given in Germany's allegation that it would endanger the safety of the German officers and submarines to attempt to visit and search British vessels, and even neutral vessels for fear of encountering a British vessel in disguise. This unfortunate embarrassment does not exist through any fault of the neutrals who may happen to be on board a British vessel or who are lawfully navigating their own vessels. It arises solely by reason of the difficulty of adapting such an instrument of warfare as the submarine to the universally recognized rules applicable to the capture of merchant vessels. The logic of such a situation would seem to require, not that neutrals be punished for Germany's inability to comply with the rules, but that she accede to the demand of the United States and either devise means of adapting her practice to the rules or discontinue it. This acknowledgment by Germany of her inability to apply the rules of naval warfare is a conclusive verification of the statement contained in the American note of May 13th that "manifestly submarines cannot be used against merchantmen without an inevitable violation of many sacred principles of justice and humanity."
From this review of the questions at issue between Germany and the United States and the examination of the principles involved, the conclusion is unavoidable that the warfare against merchant vessels as at present conducted by Germany is, in the words of Mr. Bryan while Secretary of State, "in clear violation of universally acknowledged international obligations" and constitutes, in the language of Secretary of State Lansing, "grave and unjustifiable violations of the rights of American citizens." No matter how necessary such acts may be to the success of Germany's naval and military operations, they are, again to quote Secretary Lansing, "manifestly indefensible when they deprive neutrals of their acknowledged rights." These rights the United States enjoys not only under the general principles of international law, codified in some cases by international conventions adopted at The Hague to which both Germany and the United States are firmly bound, but the United States is specially entitled to them against Germany by virtue of the provisions of the treaty of 1828 between the United States and Prussia, which expressly stipulates that" if one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent powers shall not be interrupted."
THE QUESTIONS IN DISPUTE BETWEEN THE UNITED STATES AND GREAT BRITAIN WITH REFERENCE TO INTERFERENCE WITH NEUTRAL TRADE
The government of Great Britain on March 1, 1915, notified the Department of State at Washington that the German proclamation of a war zone and its enforcement by submarines through indiscriminate destruction, instead of by regulated capture, with the object of prevents ing commodities of all kinds, including food for the civil population, from reaching or leaving the British Isles or northern France had forced Great Britain and France to take retaliatory measures to prevent commodities of any kind from reaching or leaving Germany, by detaining and taking into port ships carrying goods of presumed enemy destination, ownership or origin. These measures would be enforced without risk to neutral ships or to neutral noncombatant lives and in strict observance of the dictates of humanity. The vessels and cargo would not be confiscated unless they were otherwise liable to condemnation.
The United States promptly, on March 5, 1915, interrogated the British and French Governments as to the meaning of this declaration. It pointed out that the right to prevent commodities of any kind from reaching or leaving Germany appertained to a state of blockade which, in this case, had not been declared, while the announcement that the vessels and cargoes would not be confiscated for attempting to enter or leave Germany indicated a treatment as if no blockade existed. In this paradoxical situation the United States declared that neutrals had no standard by which to measure their rights and insisted that the declaring powers assert whether they rely upon the rules covering blockade or the rules applicable when no blockade exists. It also pointed out that the announcement that vessels or cargoes detained for attempting to enter Germany would not be confiscated unless otherwise liable to condemnation indicated that the rules of contraband were to be applied to the cargoes detained. Attention was called to the fact, however, that the rule covering noncontraband articles carried in neutral bottoms, requires that the cargoes be released and the ships allowed to proceed. According to the announcement, however, the ships were not to be allowed to proceed to their destination, and the United States inquired what was to be done with innocent and conditional contraband cargoes? As to cargoes coming out of Germany, the United States said that, under the rules governing enemy exports, only goods owned by enemy subjects in enemy bottoms are subject to seizure and condemnation, while by the declaration it is proposed to seize and take into port all goods of enemy "ownership or origin." The United States maintained that the origin of goods destined to neutral territory on neutral ships is not and never has been a ground for forfeiture, except in case a blockade is proclaimed and maintained, and it was queried upon what principle of law the cargo or a neutral ship, sailing out of a German port, could be condemned? And if it was not condemned, what other legal course was open except to release it? In case the belligerents construed their declaration as an announcement of a blockade, the United States insisted that there should be some limit to the radius of activity of the blockading vessels so that neutral vessels would not be liable to seizure far from the scene of the blockade.
Great Britain replied, on March 15th, that, succinctly stated, the object of the declaration is to establish a blockade to prevent vessels from carrying goods for or coming from Germany, but that in initiating a policy of blockade, the British Government felt reluctant to exact from neutral ships all the penalties attaching to a breach of blockade. In order to alleviate the burden which maritime war inevitably imposes on neutral seaborne commerce, Great Britain would refrain altogether from the exercise of the right to confiscate ships or cargoes which it had in respect of breaches of blockade, and would limit themselves to stopping the cargoes destined to or coming from the enemy's territory. Concerning the radius of activity Great Britain stated that it was not intended to interfere with neutral vessels carrying an enemy cargo of a noncontraband nature outside European waters, including the Mediterranean.
Accompanying the British note was an order in council published on the same date indicating the manner in which the proposed measures would be carried out. The order applies to all vessels sailing after March 1, 1915, not only to and from German ports, but to and from neutral ports.
All merchant vessels bound for German ports are required to discharge their cargoes in a British or allied port where, subject to the right of requisition by the crown, noncontraband goods will be restored to the persons entitled thereto under the direction of the prize court.
All merchant vessels which sail from German ports are required to discharge goods laden at such ports, in a British or allied port where, subject to the right of requisition by the crown, they will be sold under the direction of the prize court and the proceeds dealt with in such manner as the court may deem to be just. Neutral property laden at German ports and discharged in British or allied ports, may be released on the application of the crown, and the proceeds of the sale of goods laden in Germany which had become neutral property before the date of the order in council, may be paid to the persons entitled thereto, but the proceeds of the sale of all other goods laden in Germany may not be paid out of court until the conclusion of peace.
All merchant vessels bound for neutral ports carrying enemy property or goods with an enemy destination are required to discharge such goods and property in a British or allied port where, subject to the right of requisition by the crown, noncontraband goods will be restored to the persons entitled thereto upon such terms as the prize court may consider just. This provision does not apply to vessels carrying goods laden at German ports.
All merchant vessels which sail from neutral ports with enemy property or goods of enemy origin may be required to discharge such goods in a British or allied port where, subject to the right of requisition by the crown, they will be sold and the proceeds dealt with in the discretion of the court. Neutral property of enemy origin may be released on application of the crown but no proceeds of sale may be paid out of court until the conclusion of peace, except upon application of the crown or proof that the goods had become neutral property before the issuance of the order in council.
This order, the covering note explained, afforded a wide discretion to the prize court in dealing with the trade of neutrals in such manner as may in the circumstances be deemed just, and particular attention was directed to the following provision inserted in the order to facilitate claims by persons interested in any goods placed in the custody of the prize court under the order:
Any person claiming to be interested in, or to have any claim in respect of, any goods (not being contraband of war), placed in the custody of the marshal of the prize court under this order, or in the proceeds of such goods, may forthwith issue a writ in the prize court against the proper officer of the Crown and apply for an order that the goods should be restored to him, or that their proceeds should be paid to him, or for such other order as the circumstances of the case may require.
Great Britain gave assurances that the instructions which would be issued to the fleet, executive officers and committees upon whom the