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CHAPTER XXII

INTERFERENCE WITH NEUTRAL COMMERCE

IN GENERAL

§610

A circular issued by the Department of State in reply to inquiries occasioned by the outbreak of war in Europe in 1914 contained the following statements:

The existence of war between foreign governments does not suspend trade or commerce between this country and those at war. This right to continue to trade with belligerents is upheld by the well-recognized principles of international law, subject to the exceptions herein noted.

Vessels flying the flag of one of the belligerents are subject to seizure and confiscation by the opposing belligerents. Contraband of war on board of such vessel is, of course, subject to confiscation, though the property of a neutral.

Goods, not contraband, belonging to a neutral aboard a captured vessel are subject to delay and interruption consequent upon the seizure of the vessel, but not to confiscation, upon manifestation of neutral ownership and the non-contraband character of the goods.

When a vessel containing cargo of a citizen of the United States is captured and is carried before a prize court, as it will be presumably, he should give notice of his claim of property to the prize-court authorities and be prepared to furnish proof of his ownership and the non-contraband character of his goods. Goods of a neutral, not contraband of war, shipped on a neutral vessel are not rightfully subject to seizure or confiscation by any of the belligerents, and it is not presumed that the vessels of neutrals carrying only non-contraband cargoes will be interfered

with.

Public circular issued by the Department of State, Aug. 15, 1914, MS. Department of State, file 763.72111/161; 1914 For. Rel. Supp. 274, 275, 277. “... When war broke out in 1914, an international lawyer might have ventured to advise his neutral client that the following propositions were law:

"1. 'Paper' blockades are illegal. A blockade to be binding must be effectively maintained by an 'adequate' naval force.

"2. Even enemy goods are safe on a neutral ship, if they are not contraband and if they are not destined for a blockaded port: 'Free ships make free goods.'

Neutral

commerce afloat at beginning of war

"3. Neutral goods are safe even on an enemy ship, if they are not contraband and if they are not destined for a blockaded port.

"4. A fortiori, neutral goods are safe on a neutral ship but only if they are not contraband and if they are not destined for a blockaded port.

"5. Contraband goods are divided into two categories: absolute and conditional.

"6. Absolute contraband consists of goods exclusively used for war and destined for an enemy country, even if passing through a neutral country en route; the rule of 'continuous voyage' applies.

"7. Conditional contraband consists of goods which may have a peaceful use but which are also susceptible of use in war and which are destined for the armed forces or a government department of a belligerent state; the rule of 'continuous voyage' does not apply."

Jessup's preface to Neutrality, Its History, Economics and Law: vol. III, The World War Period (Turlington, 1936), p. x.

64. A neutral private vessel is in general liable to capture if she

(a) Attempts to avoid visit and search by flight, but this must be clearly evident; or resists with force.

(b) Presents irregular or fraudulent papers, or lacks necessary papers, or destroys, defaces, or conceals papers.

(c) Carries contraband, except when permitted by treaty to surrender ("deliver up," "deliver out") the contraband to the cap

tors.

(d) Has broken or has attempted to break a blockade.
(e) Has engaged in unneutral service.

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(f) Is under enemy convoy; or under neutral convoy to avoid rightful capture.

Instructions for the Navy of the United States Governing Maritime Warfare (June 1917).

The Department of State in 1914 instructed the Ambassador to Great Britain to inform the British Foreign Office as follows:

Immense number of shipments by and to Americans and American concerns, on ships of the several countries now at war, were afloat prior to any declaration of war or outbreak of hostilities. Some of these originated in the territory of neutrals and were destined to American citizens and American ports; others originated in this country and were from citizens of the United States to the territories and citizens of other neutrals; some were shipments from citizens and ports of the United States to the territories of the countries now at war; and others were from the territories of the present belligerents to citizens and ports of the United States. These shipments were made in time of peace, in due course of commerce, and had no relation to the war which has arisen since the vessels carrying this cargo sailed. Under principles of international law and justice and enlightened usage of nations, neutral cargo aboard such vessels cannot be confiscated, and is under no circumstances rightfully subject to adjudication and condemnation as prize. Shipments by and to the nationals of a neutral, made before war, are not in the category of shipments made by

neutrals in the vessels of a belligerent after war has been declared or hostilities have begun. As such shipments are not confiscable, they should be released without the formality of a claim by the neutral owner and without proof required in ordinary cases of prize, provided it is established that they were at sea at the outbreak of war.

In fine, for the reasons above stated and for other reasons equally cogent, the United States cannot recognize as legal the condemnation or confiscation of cargo in the situation stated, even though the usual prize proceedings should be followed. The injustice to innocent interests would be manifest.

The Foreign Office replied that when such cargoes had come into the custody of the Prize Court they could not be released except upon order by the court. However, it was said that when proper evidence of title to the cargo was presented to the Procurator General the goods would be released.

Secretary Bryan to Ambassador Page, telegram of Aug. 28, 1914, MS. Department of State, file 300.115/63; Mr. Page to Mr. Bryan, Sept. 15, 1914 (with enclosure), ibid. /512; 1914 For. Rel. Supp. 309, 310, 315–316.

Secretary Bryan, on December 26, 1914, instructed the American Ambassador to say to the British Foreign Office that—

trade

peace, not war, is the normal relation between nations and General the commerce between countries which are not belligerents right of should not be interfered with by those at war unless such inter- between ference is manifestly an imperative necessity to protect their neutrals national safety, and then only to the extent that it is a necessity.

this Government is reluctantly forced to the conclusion that the present policy of His Majesty's Government toward neutral ships and cargoes exceeds the manifest necessity of a belligerent and constitutes restrictions upon the rights of American citizens on the high seas which are not justified by the rules of international law or required under the principle of self-preservation. The British Foreign Office said in reply:

His Majesty's Government cordially concur in the principle enunciated by the Government of the United States that a belligerent, in dealing with trade between neutrals, should not interfere unless such interference is necessary to protect the belligerent's national safety, and then only to the extent to which this is necessary. We shall endeavour to keep our action within the limits of this principle on the understanding that it admits our right to interfere when such interference is not with bona fide trade between the United States and another neutral country, but with trade in contraband destined for the enemy's country, and we are ready, whenever our action may unintentionally exceed this principle, to make redress.

Secretary Bryan to Ambassador Page, telegram 836, Dec. 26, 1914, MS. Department of State, file 763.72112/545a; Mr. Page to Mr. Bryan, telegram 440083-43-vol. VII-2

1434, Jan. 7, 1915, ibid. /589; 1914 For. Rel. Supp. 372, 373; 1915 For. Rel. Supp. 299-300.

In upholding the validity of the Retaliatory Order in Council issued by the British Government on February 16, 1917, Sir Samuel Evans said concerning belligerent interference with neutral commerce:

...

In modern times the two chief points of controversy have related to the carriage of contraband and to trading through blockaded ports. .. I only wish to note and extract the principle upon which they are based. Broadly, the principle is that the maritime commerce of neutrals is subject to restriction by the acts of States at war, if that commerce tends to assist an enemy either directly in his warlike operations, or indirectly in the carrying on of his own trade upon which his power of continuing the war may largely, or even entirely, depend. The object, and the legitimate object, of a belligerent is to destroy or cripple the enemy's commerce. The result, and the inevitable result, to neutrals is interference with their trade.

In the application of the principle, the boundary of the law of nations has been extended from time to time to adapt itself to new and ever-changing conditions. This law must from its nature have room for expansion. It cannot and never could be squeezed into a mould of a particular size or shape. It never had or could have the quality of immutability attributed to the laws of the Medes and Persians. It could not be confined within artificial limits like an Act of Parliament. It has the essence and qualities of a living organism like the common law of this realm.

In the two branches already mentioned, namely, contraband and blockade, this natural development is clearly illustrated. Contraband goods were at one time comprised within a very limited catalogue. At the present day, the list is extensively enlarged. The result to neutrals has been that their trade in such goods has had to run greater and increasing risks and penalties. Moreover, in recent times not only have the contraband goods themselves been subject to confiscation, but the neutral vessels which carry them have also been rendered confiscable in many cases. It has become established law, too, that other goods on the same vessel belonging to the same neutral owners suffer the same fate, although they have no contraband character or enemy destination. It may be added, also, that the application of the doctrine of continuous voyage to contraband trade has greatly encroached upon and fettered the trade of neutrals in time of war. This doctrine was originated in connection with the so-called "Rule of 1756," but since its extension to trade in contraband goods by the Courts of North American States at the time of the Civil War it has become established as part of the law of nations.

The law of blockade has the same fundamental principle as that of contraband, and carries it out to a still greater extent, because it involves the confiscability of the vessels and of goods of all descriptions, by whomsoever owned, laden on whatsoever vessels, and whether proceeding to or from blockaded ports, if the vessels are captured in running, or attempting to run, the

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