belligerents could repair their damages without distinction as Netherlands, Diplomatieke bescheiden betreffende de toelating van oorlogsschepen en bewapende handelsvaartuigen der oorlogvoerenden binnen het Nederlandsche Rechtsgebied (1917) 1-3. The United States neutrality proclamation of September 5, 1939 stated that "Damages which are found to have been produced by the enemy's fire shall in no case be repaired." 54 Stat. 2629, 2633. After a battle with three British cruisers the German battleship Admiral Graf Spee entered the port of Montevideo on the late evening of December 13, 1939, and on December 14 the German Minister requested of the Uruguayan Minister of Foreign Affairs that the Graf Spee be allowed to remain "a reasonable period" in order to repair damages suffered in the battle and to "restore its navigability". By a presidential decree the Uruguayan Government ordered a commission of naval experts to inspect the vessel to determine the time within which indispensable repairs could be made, and called attention to article XVII of Hague Convention XIII of 1907 under which belligerent warships in neutral ports' could make only such repairs as were indispensable for the safety of navigation and could not augment in any way their military strength. On December 14 the German Minister requested that 15 days be allowed for the making of repairs, while the British and French Legations asked that the stay be limited to 24 hours. That evening the experts reported that 3 days would suffice for the absolutely necessary repairs. By a decree of December 15, 1939 a period of 72 hours for the completion of the repairs was fixed as the maximum stay to be allowed the Graf Spee; the period was to commence with the report of the experts and to terminate on December 17 at 8 p.m. Less than 2 hours before the expiration of this time the Graf Spee left Montevideo and was voluntarily destroyed by its own crew while in the Río de la Plata not far from shore. The German Minister protested strongly on December 17 against the denial of further stay in port as a “fla grant violation of international law and usage". The Uruguayan Minister of Foreign Affairs refused to accept the protest. Uruguay, Ministry of Foreign Affairs, Antecedentes Relativos al Hundimiento del Acorazado "Admiral Graf Spee" y a la Internación del Barco Mercante "Tacoma" (1940) 1-36, transmitted by the Minister to Uruguay (Wilson) to the Secretary of State (Hull), Feb. 7, 1940, MS. Department of State, file 740.0011 European War 1939/1666. In his note of Dec. 14, 1939 the British Minister suggested that the Uruguayan Government make a distinction between damages caused by perils of the sea and those suffered in battle, allowing repairs of the former class but not of the latter. He admitted that article XVII of Hague Convention XIII of 1907 did not clearly prohibit such repairs but called attention to the distinction drawn in this respect by the Habana convention of 1928 on maritime neutrality, by the Scandinavian neutrality regulations of 1938, and by the legislation of Cuba and the Balkan states. The Uruguayan Minister of Foreign Affairs pointed out that the Hague convention did not refer to the cause of the injuries but merely distinguished between repairs necessary for safety of navigation and those which augmented the military force of the ship. Ibid. When the British Embassy suggested that repairs being made in an American port on a German warship would increase her speed, the Department of State replied: capacity The Department has given due consideration to the principles Increase in embodied in Article 17 of Hague Convention No. XIII of 1907 fighting In conformity with those principles and the law of nations, the Government has allowed the cruiser to carry out such repairs as, in the Government's opinion, are proper in the circumstances. For example, the Prinz Eitel Friedrich has been allowed to dock and have her bottom scraped and painted, her tail shaft drawn, and certain repairs made to her boilers and engines. As to the point made by the British Embassy that the cleaning and painting of the bottom of the Prinz Eitel Friedrich and the making of engine-room repairs will materially increase her fighting efficiency, it is only necessary to state that this conclusion may be drawn from any work in the nature of repairs which may be done upon a cruiser while in port, such as repairs to her steam pipes or to any part of the ship whatever. It is presumed the ship would not have come into port except to receive repairs or to obtain supplies, and therefore it is not to be supposed that she would leave the port in the same condition as that in which she arrived, that is, without having her fighting efficiency increased beyond what it was when she entered. In the opinion of the Government, a foul bottom is clearly a damage which the Prinz Eitel Friedrich "experienced from the sea." In conclusion the Department would direct attention to the provision in Article 17 referred to above, that "the neutral au 440083-43-vol. VII-30 thorities shall decide what repairs are necessary." In the exercise of its discretion, the Government has decided that the cleaning and painting of the bottom of the cruiser, as well as the other repairs now being carried out, fall within the principles laid down by Hague Convention No. XIII and the rules of international law applicable to the case. The British Embassy to the Department of State, Mar. 22, 1915, and the Department of State to the British Embassy, Mar. 30, 1915, MS. Department of State, file 763.72111Ei9/13; 1915 For. Rel. Supp. 828, 830, 831. SUPPLIES AND FUEL $670 The Instructions for the Navy of the United States Governing Maritime Warfare (June 1917) read: 14. Belligerent ships of war must not make use of neutral ports, roadsteads, or territorial waters for replenishing or increasing their supplies of war material or their armament, or for completing their crews. See also Hague Convention XIII of 1907, art. XVIII, 2 Treaties, etc. (Malloy, 1910) 2352, 2361; 36 Stat. 2415, 2430. ARTICLE XIX. Belligerent war-ships may only revictual in neutral ports or roadsteads to bring up their supplies to the peace standard. Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port in their own country. They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied. If, in accordance with the law of the neutral Power, the ships are not supplied with coal within twenty-four hours of their arrival, the permissible duration of their stay is extended by twenty-four hours. ARTICLE XX. Belligerent war-ships which have shipped fuel in a port belonging to a neutral Power may not within the succeeding three months replenish their supply in a port of the same Power. Hague Convention XIII, arts. XIX and XX, 2 Treaties, etc. (Malloy, 1910) 2352, 2361; 36 Stat. 2415, 2431. To like effect, see pars. 15, 16, 17, and 18, Instructions for the Navy of the United States Governing Maritime Warfare (June 1917). "ARTICLE 10. Belligerent warships may supply themselves with fuel and stores in neutral ports, under the conditions especially established by the local authority and in case there are no special provisions to that effect, they may supply themselves in the manner prescribed for provisioning in time of peace. "ARTICLE 11. Warships which obtain fuel in a neutral port cannot renew their supply in the same state until a period of three months has elapsed.” Convention on maritime neutrality signed at Habana, Feb. 20, 1928, 4 See references in Research in International Law, Rights and Duties of The German cruiser Leipzig had taken on board provisions in a Chilean Most of the national laws dealing with the supply of fuel to belligerent warships have limited the amount of coal to that neces- Fuel sary to enable the vessel to reach the nearest port of her own country. See authorities cited in Research in International Law, Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), Comment, 33 A.J.I.L. Supp. (1939), 472-476. See also 1906 U.S. Naval War College, Int. Law Topics and Discussions 66; 1910 U.S. Naval War College, Int. Law Situations 9; 1912 idem 130. The proclamation of neutrality issued by the United States on Aug. 4, 1914 stated: "... No ship of war or privateer of a belligerent shall be permitted, while in any port, harbor, roadstead, or waters within the jurisdiction of the United States, to take in any supplies except provisions and such other things as may be requisite for the subsistence of her crew, and except so much coal only as may be sufficient to carry such vessel, if without any sail power, to the nearest port of her own country; or in case the vessel is rigged to go under sail, and may also be propelled by steam power, then with half the quantity of coal which she would be entitled to receive, if dependent upon steam alone, and no coal shall be again supplied to any such ship of war or privateer in the same or any other port, harbor, roadstead, or waters of the United States, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within the waters of the United States, unless such ship of war or privateer shall, since last thus supplied, have entered a port of the government to which she belongs." 38 Stat. 1999, 2001; 1914 For. Rel. Supp. 547, 550. The proclamation issued on Sept. 5, 1939 incorporated a similar rule, with reference to "fuel, lubricants, and feed water", and added: . . . The amounts of fuel, lubricants, and feed water allowable under the above provisions shall be based on the economical speed of the vessel, plus an allowance of thirty per centum for eventualities." 54 Stat. 2629, 2633. After the outbreak of war in Europe in 1939 the Department of State took the position that armed tankers of the French Navy might not take on full cargoes of fuel oil in American ports. MS. Department of State, file 740.00111A/75, /76. A Chilean decree, effective Jan. 1, 1915, referred to the excessive distances which belligerent warships could steam if supplied in Chilean ports with the amount of fuel sufficient to enable them to reach the nearest port of their own country and adopted the rule that no more fuel would be allowed than that sufficient to allow the vessel to reach the nearest port of the nearest neutral country. The decree also provided: "Secondly, that in the event of the violation by a merchant ship of any of the rules bearing upon the observance of neutrality, adopted by the Government of the Republic, no fuel shall be supplied in Chilean ports to any vessel of the company to which the ship so offending may belong; "Fourthly, that the quantity of coal that may be supplied in ports of the Republic to merchant vessels be limited to the capacity of their ordinary bunkers, unless they desire to sail direct to European ports, in which case they may be supplied with the quantity of coal necessary for the voyage, provided always that the company to which they belong furnish a sufficient guarantee in the opinion of the Government that the fuel shall be used exclusively in effecting such voyage." MS. Department of State, file 763.72111/1304; 1914 For. Rel. Supp. 704, 705; see also Alvarez, La Grande Guerre Européenne et la neutralité du Chili (1915) 194 et seq. In discussions with the Chilean Foreign Office, the British Minister to Chile expressed doubts whether the fourth provision of the decree was strict enough, and on May 17, 1915 the Chilean Government announced the following additional rules with respect to the supply of fuel for belligerent merchant vessels making direct voyages to European ports: "Navigation companies which require coal in Chilean ports for vessels of belligerent flag which wish to make a direct voyage to European ports should make, as a guaranty of the declared destination of the fuel, a deposit of 5 livres sterling per ton of coal loaded without prejudice to the responsibility established in No. 2 of decree 2009 of December 15, 1914. The deposit will be restored on presentation of a certificate attesting the arrival of the vessel at its declared destination in a proper time, which in each case the maritime authority will determine. This same authority will fix the conditions which the certificate should fulfill." Alvarez, op. cit. 197-199; 1916 U. S. Naval War College, Int. Law Topics 30. The Department of State and the Navy Department in May 1940 concurred in the opinion that a British war vessel should only be allowed to take on board such fuel, etc., as may be sufficient to take her to the nearest port belonging to the British Commonwealth of Nations, without distinction as to whether it was a part of the United Kingdom, the dominions, or a colony. MS. Department of State, file 740.00111A Ports/6. See also 1902 U.S. Naval War College, Int. Law Situations 36. |