Expenses, etc.

"Let the lien agreed upon be given as wide a scope and great a force as can be contended for, and it is still true that no carrier can preserve any lien for any freight against any cargo, if even under force majeure he totally abandons the carriage of the goods intrusted to him; and this is what I think the Appam did indeed, it was the only possible thing to do under the circumstances.

"The result is the same, and the libel must be dismissed, with costs." The Appam, 243 Fed. 230, 233-236 (S.D.N.Y., 1917).

Coffee and honey bound from the West Indies to Hamburg were shipped in 1914 prior to the war. The Netherlands vessel on which they were laden was seized after outbreak of war, and proceedings were brought to condemn the cargo as conditional contraband. The French Prize Council found that the goods were not destined to the enemy Government or its armed forces and should not be condemned. They were released on condition that the claimants pay the freight to the ship-owner, and the French Government was ordered to pay the ship-owner interest on the freight and indemnity for the loss caused by the delay to the vessel.

The Oranje Nassau (July 19, 1915), Fauchille, Jurisprudence française en matière de prises maritimes (1916) 77.

In 1914 a British (Allied) vessel carrying wheat bound for Italy (then neutral) was seized by a French warship, and the wheat was requisitioned. When releasing the proceeds of the wheat to its owners, on the ground that it was not shown to be contraband with an enemy destination, the French Prize Council held that the freight due should be paid to the shipowners. The Narrovian (July 3, 1915), ibid. 68, 72.

A Swedish vessel bound for Göteborg sailed from an Italian port with a cargo including fruit and sulfur. Upon calling at Port Talbot for bunker coal, the vessel was detained and ordered by the British authorities to discharge the goods at Liverpool. The goods were sold by order of court and the proceeds were released. The ship-owners were unable to recover from the Crown the additional unloading expenses at Liverpool or compensation for detention. They were also unable to recover them out of the proceeds released to the cargo-owners.

The Domald, [1920] P. 56, IX Ll. Pr. Cas. 356.

To similar effect, see The Einar Jarl, [1920] P. 64n., 65n., IX Ll. Pr. Cas. 326, in which Lord Sterndale said:

"... I can see no reason whatever in principle why, where there are two innocent persons, the cargo owners and the shipowners, neither of whom have done anything which is in breach of their contract, but who have been prevented from performing it by the act of a belligerent, and loss has been occasioned thereby, the loss should be transferred from the shoulders of one innocent party to the shoulders of the other."

With respect to general average said to be due a Norwegian vessel on a German-owned cargo condemned as prize, the British Prize Court said:

The main distinction is between liens imposed by the general law of the mercantile world independent of any con- General tract, and those which arise from private engagements or con- average tractual relations between parties.

On principle it appears to me to be right that where a general average claim by the ship against the cargo exists before the cargo is captured, the captors take cum onere of the cargo's contribution to the general average loss.

The Sörfareren, IV Ll. Pr. Cas. 174, 194–195 (1915).

A Belgian vessel carrying a German-owned cargo of wheat bound from Montreal to Rotterdam grounded on the British coast on June 23, 1914. Part of the cargo was left on board to give stability to the vessel when it was taken to Southampton for repairs. The vessel was held there pending repairs, with the wheat on board. After the outbreak of war the cargo was condemned as enemy property. The ship-owners were awarded a contribution to general average and salvage from the proceeds of the cargo.

The Gothland, V Ll. Pr. Cas. 39, 42, [1916] P. 239n.

A French sailing vessel bound from Chile to France and carrying an enemy-owned cargo for British consignees was salvaged when in distress near the English coast and brought into the port of London. The cargo was sold by the British consignees (with the assent of the court) to British buyers, and the proceeds were paid into court. The proceeds were condemned as enemy property, but the Prize Court ordered the proportion of salvage awards and costs attributable to the cargo to be paid from the proceeds. The ship-owners were also paid demurrage from the proceeds. The Chateaubriand, V Ll. Pr. Cas. 24 (1916).

The neutral Danish vessel Prins Knud was rescued by British salvors in Feb. 1940. After the German occupation of Denmark in Apr. 1940, the salvors obtained an award from the Court of Admiralty. Meanwhile the vessel had been seized and requisitioned pending prize proceedings. The Crown indicated no intention to proceed to adjudication in the case of Danish vessels. The Prize Court refused an application by the salvors that the Crown be ordered to proceed to adjudication, and did not require payment of the salvage award (see p. 299, ante). The Judicial Committee of the Privy Council allowed an appeal by the salvors and held that salvage claims were enforceable in prize and in this case should be paid. The Prins Knud, I Ll. P.C. (2d) 99 (1942).

Salvage

CHAPTER XXIV

NEUTRALITY

INTRODUCTION

8656

In the preamble to the convention on maritime neutrality signed by Meaning the American republics at Habana on February 20, 1928 the term neutrality is defined as "the juridical situation of states which do not take part in the hostilities", creating "rights" and imposing "obligations of impartiality". 4 Treaties, etc. (Trenwith, 1938) 4743; 47 Stat. 1989.

Fauchille defines neutrality as "the situation of every State which keeps out of a war occurring between two or more other States. It is the existence of the impartial peaceful status of a Power towards each of the belligerents." II Traité de droit international public (1921) 635–636. Neutrality has been defined from a "technical point of view" as being "a legal status involving certain rights and duties", and contemplating "the existence of some sort of international legal system", as contrasted with its meaning "in popular thought” of "keeping out of war". Neutrality, Its History, Economics and Law: vol. IV, Today and Tomorrow (Jessup, 1936) 3. It is used by some writers in the sense of "that policy which a country at peace adopts toward countries at war". Dulles and Armstrong, Can We Be Neutral? (1936) 9.

Paragraph 360 of the Rules of Land Warfare issued by the War Department of the United States gives the following definition of neutrality: "... Neutrality on the part of a state not a party to the war consists in refraining from all participation in the war, and in exercising absolute impartiality in preventing, tolerating, and regulating certain acts on its own part by its subjects and by the belligerents."

Basic Field Manual (FM 27-10, 1940) 90.

Philip Marshall Brown writes:

"Neutrality is essentially nothing else than the assertion of the right of a nation to remain at peace with other nations and to take no part in an armed conflict between belligerents, either in an international or in a civil war." 33 A.J.I.L. (1939) 726.

See also Quincy Wright, "The Present Status of Neutrality", 34 A.J.I.L. (1940) 391.

"Neutrality may be said to be an attitude of impartiality by nonbelligerent states toward belligerent states." Secretary Kellogg to Repre

Distinguished from neutralization of states

sentative Douglas, Feb. 29, 1928, MS. Department of State, file 800.113/109. "The choice imposed upon a country which sees war break out between other countries is confined to two alternatives. Either it will associate itself with one or the other of the adversaries and will become a belligerent itself, or instead it will be neutral. There are no intermediate gradations [nuances]. One is neutral or one is not." Hj. L. Hammarskjöld, "La neutralité en général", III Bibliotheca Visseriana (1924) 53, 59.

In 1915 the Counselor for the Department of State suggested that a public statement be made in answer to criticisms concerning the failure of the United States to protest, under the Hague conventions, the violation of the neutrality of Belgium. He said:

The neutrality of neutralized states is a matter of conventional agreement between powers who are more or less interested in preventing the state from being absorbed politically by any power, or from becoming a base of military operations or from otherwise assisting neighboring rival states. The agreement imposes a condition of permanent neutrality. It is in fact a guaranty not only by the neutralized state that it will not engage in aggressive warfare, but also by the other parties to the treaty that it will not be attacked by any of them. These restraining conditions are purely contractual and are imposed and perpetuated from without. They do not exist by virtue of the rules of international law or the customs of nations, but solely by the treaties creating them.

...

The neutrality of a neutral state on the other hand, is a condition which a nation other than the belligerents may assume voluntarily and regardless of treaty provisions upon the outbreak of an international war. It is this optional nature of the neutrality of a neutral state that distinguishes it from the permanent neutrality of a neutralized state. It is solely with the rights and duties of a neutral state that the Hague Conventions on neutrality deal. They do not deal with the neutralization of a state or with the guaranties of the interested powers to preserve its neutralized status. Only those powers, which are by agreement mutual guarantors of the neutralization of the state have a legal right under the agreement to complain of its violation.

The Counselor for the Department of State (Lansing) to Secretary Bryan, Feb. 10, 1915 (enclosure), MS. Department of State, file 763.72111/16792; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 199, 201-202. See also Mr. Lansing to Mr. Bryan, Jan. 9, 1915, MS. Department of State, file 763.72111/13961⁄2; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 188, 189, 190.

With respect to neutralized states, see vol. I, pp. 66-74, of this Digest. See also I Oppenheim's International Law (5th ed., by Lauterpacht, 1937) 200-208.

Modern neutrality dates from the latter part of the Middle Ages. Prior to that time neutrality was unknown for the reason that belligerents did not recognize an attitude of impartiality