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It is thus seen that in no less than five great wars of the last fifty years an exemption is made in favor of enemy merchant vessels in port at the outbreak of hostilities, and that a longer or shorter period is fixed within which such vessels may safely leave their ports and proceed to their destination. Although the custom is modern, it can not be said to be limited to any particular quarter of the world; for the states generally have recognized the exemption in their recent wars, not only in Europe and America, but also in Asia. Such a custom, however recent it may be, may rightly claim to form a part of the law of nations. It is therefore a source of regret that the Second Peace Conference refused to recognize it as a right but simply as a privilege, a délai de faveur, which may be accorded or refused at the option of the belligerent, and that the privilege was unaccompanied by any recommendation of a period of time within which the privilege in question should be accorded. The exact wording of the first two articles of the convention follows:
ARTICLE 1. When a merchant ship belonging to one of the belligerent powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately or after a reasonable number of days of grace, and to proceed, after being furnished with a pass, direct to its port of destination or any other port indicated.
The same rule should apply in the case of a ship which has left its last port of departure before the commencement of the war and entered a port belonging to the enemy while still ignorant that hostilities had broken out.
ART. 2. A merchant ship unable, owing to circumstances of force majeure, to leave the enemy port within the period contemplated in the above article, or which was not allowed to leave, can not be confiscated.
The belligerent may only detain it, without payment of compensation, but subject to the obligation of restoring it after the war, or requisition it on payment of compensation.
It may be said that the expression “it is desirable " that the vessels should be allowed to depart freely amounts in reality to a command, and that the practice of the future will recognize the custom as freely as it has done in the past, thus establishing as a right what the conference modestly denominates a privilege. If such be the case the opposition of Great Britain to the recognition of the right will be as futile in practice as it was unreasonable at the conference.
Passing to the second branch of the question, namely, the treatment accorded to enemy merchant ships which prior to the outbreak of war had left port destined to any port or place of the other belligerent, the enlightened policy of the European states in their recent wars of 1854, 1866, and 1870, has been stated in the extracts already quoted from their respective declarations. The niore recent practice will be briefly set forth. The fifth rule of the Presidential proclamation of April 26, 1898, provided :
5. Any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States shall be permitted to enter such port or place, and to discharge her cargo, and afterward forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded.
It has previously been observed that the Spanish decree did not provide for the entrance and discharge of American ships sailing for Spanish ports before the war, but, as no captures were made by Spain, the less liberal provisions of the Spanish decree did not affect American commerce.
Rule 5 of the American proclamation was judicially interpreted in the case of the Pedro (175 U. S., 354). This vessel, sailing under the Spanish flag and officered and manned by Spaniards, was loaded in Antwerp for Cuba, and on March 18, 1898, was chartered by an American firm to proceed to Pensacola, Fla., or Ship Island, Miss., for a cargo of lumber for Rotterdam or Antwerp. Shortly after this date the Pedro sailed from Antwerp with a cargo of merchandise for Havana and Cienfuegos. She arrived at Havana on April 27 and, after discharging her cargo, sailed on the 22d for Santiago, Cuba, with a small quantity of general merchandise taken at Havana. While pursuing the voyage from Havana to Santiago, Cuba, she was captured on the same day, April 22, a few miles from Havana by the United States blockading fleet. In delivering the opinion of the Supreme Court, Chief Justice Fuller held that the Pedro did not fall within the exemption contained in rule 5; that she lay at Havana from the 17th of April to the 22d; that she cleared from Havana April 22, a day after the war began; that she had then no cargo for any port of the United States, but only for an enemy port, namely, Santiago and Cienfuegos. It could not therefore be said that she had left a foreign port in ignorance of the “ perilous condition of affairs;” that it must be assumed that she either knew of hostilities or had been advised that hostilities were imminent. She was not bringing a cargo to the United States for the increase of its resources and the convenience of its citizens, but she was an enemy vessel trading with an enemy port. The Supreme Court therefore affirmed the condemnation of the District Court and held squarely that the contract to proceed ultimately to a port of the United States did not bring the vessel within the exemption of the fifth rule. While the decision of the Supreme Court is technically correct, it would seem that it was illiberal both in its interpretation and application of the exemption meant to be confererd by the fifth rule, as was pointed out by Mr. Justice White in a strong dissenting opinion, in which Justices Brewer, Shiras, and Peckham concurred. While it is true that a statute in derogation of the common law should be strictly construed, this principle clearly should not apply to an exception in the common law of nations made in the interest of innocent enemy subjects engaged in innocent commerce.
In the recent Russo-Japanese war an indemnity of a like nature was extended by article 3 of the Imperial Japanese ordinance of February 9, 1904, the exact text of which is as follows:
Russian steamers which may have left for a Japanese port before February 16 may enter our ports, discharge their cargoes at once, and leave the country. The Russian steamers coming under the above category shall be treated in accordance with article 2 [previously quoted).
It will be seen, therefore, that recent enlightened practice permits enemy merchant ships which have left their last port of departure before the commencement of the war, or within a certain fixed period, to continue their journey unmolested to the port or place within the territory of the other belligerent, to unload their cargoes and to return to the home port without danger of capture during the voyage. The convention concerning the status of enemy merchant ships unfortunately is less liberal than recent practice. Article 3 is as follows:
Enemy merchant ships which left their last port of departure before the commencement of the war and are encountered on the high seas while still ignorant of the outbreak of hostilities can not be confiscated. They are only liable to detention on the understanding that they shall be restored after the war without compensation, or to be requisitioned, or even destroyed, on payment of compensation, but in such case provision must be made for the safety of the persons on board, as well as the security of the ship's papers.
After touching at a port in their own country, or at a neutral port, these ships are subject to the laws and customs of maritime war.
The seeming exemption is rather illusory, for the exemption from capture is based upon the fact that at the time of seizure the enemy merchant ships were still ignorant of the outbreak of hostilities. If they had been informed of the existence of hostilities they would seem to be liable to capture, for the merchant vessels of to-day have discarded canvas for steam, and it rarely happens that a vessel is provided on the outbound voyage with sufficient coal for the return. It would seem, therefore, that the vessel is exposed to capture because it could not safely continue its voyage to the belligerent port, and, if it seeks to return to the home port, the vessel is liable to capture, with little chance of escape by reason of the lack of means to continue its voyage. If the merchant vessel is ignorant of the outbreak of hostilities it may not be captured, but it may be detained subject to restoration at the end of the war without compensation. The value of the vessel may be seriously depreciated in case of a long war. If requisitioned, it is unlikely that the transaction will be profitable to the original owner, and if destroyed it is improbable that the compensation will at all be adequate. The article in question, therefore, can not be considered an advance; it is a distinct limitation of customary rights. Article 4 of the convention is as follows:
Enemy cargo on board the vessels referred to in articles 1 and 2 is likewise liable to be detained and restored after the termination of the war without payment of compensation, or to be requisitioned on payment of compensation, with or without the ship.
The same rule applies in the case of cargo on board the vessels referred to in article 3.
The provisions depending upon articles 1 and 3, already quoted, would seem to require no special explanation or comment.
The convention as a whole was a compromise between those who believed in the existence of a right and those who refused to recognize the legal validity of the custom which has grown up in recent years. As in most compromises the result is unsatisfactory. The convention can not be called progressive, for it questions a custom which seems generally established and its adoption would seem to sanction less liberal and enlightened practice. The United States delegation therefore refused to sign the convention and its acceptance has not been recommended by the Department of State.
JAMES BROWN Scott.