erent nation, must not pass through or remain in Norwegian territorial waters. If they violate this prohibition they are subject with [without] warning to seizure by armed force.

"The prohibition does not hinder a submarine, owing to rough weather or damage from seeking refuge in Norwegian waters in order to save human lives; within Norwegian waters the vessel shall remain above surface, keep hoisted its national flag and the international signal for the occasion of its visit. The vessel shall leave the territory as soon as the reason for its arrival has been removed. Neither can other submarines than those mentioned enter or traverse Norwegian territorial waters, unless this takes place in daylight in visible weather and above surface with the national flag hoisted.

"Owing to the difficulties in distinguishing the various kinds of submarines, foreign submarines, passing through Norwegian waters, must themselves assume all risk for damages or possible destruction caused by mistaking the character of the vessel."

Deák and Jessup, Collection of Neutrality Laws, etc. (1939) 842. See also MS. Department of State, file 763.72111/4197.

The German Minister to Norway declared that the above decree was inconsistent with international law, according to which neutrals may not change rules existing at the time of the proclamation of neutrality except for the protection of the neutral's own rights. He stated that the decree operated to the detriment of one belligerent alone as a counter measure against its legitimate warfare, and described it as contrary to the spirit of neutrality in as much as it provided for special restrictions on merchant submarines possessed by Germany only. The Norwegian Government explained that the sole object of the decree was to protect Norway's rights as a neutral, that there was not the slightest thought of causing prejudice or advantage to any of the belligerents, and that the rules concerning merchant submarines were for the purpose of rendering more effective the control of belligerent war submarines (the Norwegian attitude toward merchant submarines being the same as that of Sweden), and stated that the Norwegian Government did not intend to contest the lawfulness of submarine warfare within the limits of the Declaration of London.

Mr. Schmedeman to Mr. Lansing, telegrams 94 and 98, Oct. 28 and Nov. 11, 1916, MS. Department of State, file 763.72111/4180, /4232; 1916 For. Rel. Supp. 782, 783; see also Mr. Schmedeman to Mr. Lansing, nos. 291 and 296, Oct. 28 and Nov. 11, 1916 (enclosures), MS. Department of State, file 763.72111/4263, /4302.

The decree of Oct. 13, 1916 was modified by a decree of Jan. 30, 1917, effective Feb. 6, 1917, to limit its application to submarines equipped for war. The American Minister reported to the Department of State that the Norwegian Minister of Foreign Affairs had informed him that the modified decree was satisfactory to the German Government. He also reported that the Norwegian Navy had been instructed that all submarines should be considered as war submarines unless definitely shown to be for

Spain, 1917

commercial purposes. Deák and Jessup, Collection of Neutrality Laws, etc. (1939) 842; Mr. Schmedeman to Mr. Lansing, no. 331, Feb. 1, 1917, MS. Department of State, file 763.72111/45881⁄2.

With respect to the mining of Norwegian territorial waters in 1918 to prevent the passage of German submarines, see ante, this chapter, p. 369. The Scandinavian neutrality rules of 1938 repeated this prohibition against the entry of belligerent submarines armed for war. 32 A.J.I.L. Supp. (1938) 141, 155.

On Mar. 26, 1940 the German submarine U-21 grounded on a rocky point in Norwegian territorial waters. Norwegian forces were sent to investigate, and after the submarine was able to free itself it was taken in for investigation. Meanwhile the German Legation at Oslo requested its release on the ground that it probably had been necessary for it to enter Norwegian territorial waters because of stress of weather and the damage sustained. The captain of the submarine, however, explained that the damage was caused by the grounding. The Norwegian Government was of the opinion that the real reason was faulty navigation and stated that, even if this might be excused because of heavy snowfall and bad visibility, there was no legal provision allowing the stay of a submarine in Norwegian territorial waters unless it entered because of stress of weather or damage. The submarine and crew were interned on Mar. 27, 1940. The Minister to Norway (Harriman) to the Secretary of State (Hull), no. 629, Apr. 1, 1940 (enclosure), MS. Department of State, file 740.00111 European War 1939/448.

In June 1917 a German submarine arrived in damaged condition in a Spanish port. The Spanish Government decided to permit such repairs to be made as were necessary to enable it to proceed to the nearest German base, upon receiving a guaranty from the German Government that it would not attack a merchant-ship en route. The submarine sailed on June 29, 1917, and later that day the King of Spain signed a Royal decree providing that:

Article 1. Submarines of every class of all belligerent nations are prohibited in Spanish jurisdictional waters and entrance into Spanish ports.

Art. 2. All submarines included in the previous article which enter Spanish jurisdiction for whatsoever reason shall be interned until the close of the war.

Art. 3. Neutral submarines entering Spanish jurisdictional waters must navigate on the surface and show plainly the national flag.

1917 For. Rel., Supp. 2, vol. II, pp. 1289-1292. For the decree, see also Deák and Jessup, Collection of Neutrality Laws, etc. (1939) 939.

On July 29, 1917 the German submarine B-23 entered the Spanish port of Corunna and was ordered interned. On Sept. 9, 1917, the German submarine U-293 entered Cadiz and was ordered interned, but escaped on Oct. 6, 1917. As a result the Spanish Government took steps against the authorities at Cadiz, and the officers and crew of the B-23 were sent inland for internment. 1917 For. Rel., Supp. 2, vol. II, pp. 1293–1296.

Section 5 of the joint resolution of Congress, approved August 31, 1935, provided that:

lation,

Whenever, during any war in which the United States is neutral, U.S. legisthe President shall find that special restrictions placed on the use of the ports and territorial waters of the United States, or of its 1935 possessions, by the submarines of a foreign nation will serve to maintain peace between the United States and foreign nations, or to protect the commercial interests of the United States and its citizens, or to promote the security of the United States, and shall make proclamation thereof, it shall thereafter be unlawful for any such submarine to enter a port or the territorial waters of the United States or any of its possessions, or to depart therefrom, except under such conditions and subject to such limitations as the President may prescribe. When, in his judgment, the conditions which have caused him to issue his proclamation have ceased to exist, he shall revoke his proclamation and the provisions of this section shall thereupon cease to apply.

49 Stat. 1081, 1084.

This provision, made applicable to armed merchant vessels as well, was continued in force as section 8 of the joint resolution of May 1, 1937 1937, 1939 and as section 11 of the joint resolution of November 4, 1939.

50 Stat. 121, 127; 54 Stat. 4, 8.

In Proclamation 2371 of Oct. 18, 1939 the President stated that he had found that "special restrictions placed on the use of the ports and territorial waters of the United States, exclusive of the Canal Zone, by the submarines of a foreign belligerent state, both commercial submarines and submarines which are ships of war, will serve to maintain peace between the United States and foreign states, to protect the commercial interests of the United States and its citizens, and to promote the security of the United States", and proclaimed that "it shall hereafter be unlawful for any submarine of France; Germany; Poland; or the United Kingdom, India, Australia, Canada, New Zealand, or the Union of South Africa, to enter ports or territorial waters of the United States, exclusive of the Canal Zone, except submarines of the said belligerent states which are forced into such ports or territorial waters of the United States by force majeure; and in such cases of force majeure, only when such submarines enter ports or territorial waters of the United States while running on the surface with conning tower and superstructure above water and flying the flags of the foreign belligerent states of which they are vessels" and that such "submarines may depart from ports or territorial waters of the United States only while running on the surface with conning tower and superstructure above water and flying the flags of the foreign belligerent states of which they are vessels". 54 Stat. 2668-2669. These provisions were extended to Norwegian submarines by Proclamation 2400 of Apr. 25, 1940 (ibid. 2699); to submarines of Belgium and the Netherlands by Proclamation 2406 of May 11, 1940 (ibid. 2705); to Italian submarines by Proclamation 2409 of June 10, 1940 (ibid. 2707); and to Greek submarines by Proclamation 2445 of Nov. 15, 1940 (ibid. 2764).

In October 1939 Senator Walsh inquired of the Secretary of State how a neutral could grant permission to belligerent nations to dock warships and other vessels at its ports and refuse to allow the docking of submarines. Secretary Hull replied:

There is no requirement of international law that warships of belligerent countries shall be admitted to neutral ports. If they are so admitted, such admission is granted on such terms as the neutral may, generally speaking, see fit to impose, subject only to the requirement of impartiality as between the belligerents; nor is there any requirement of law that submarines and surface vessels of war shall be accorded like treatment in neutral ports.

Senator Walsh to Secretary Hull, Oct. 2, 1939, and Mr. Hull to Mr. Walsh, Oct. 18, 1939, MS. Department of State, file 740.00111A.R./414.

The general declaration of neutrality approved at Panamá on Oct. 3, 1939 provides that the American republics:

"(k) May exclude belligerent submarines from the waters adjacent to their territories or admit them under the condition that they conform to the regulations which each country may prescribe." Report of the Delegate of the United States of America to the Meeting of the Foreign Ministers of the American Republics, Held at Panamá, September 23-October 3, 1939 (Department of State, Conference Ser. 44, 1940) 56.

The Inter-American Neutrality Committee recommended, Jan. 21, 1940, that:

"I. The American Republics which decide to exclude belligerent submarines from their ports, harbors or territorial waters, shall except from this prohibition the following cases of force majeure: (a) necessity of seeking refuge for reasons of the condition of the sea; (b) necessity of making repairs; (c) requirements of a humanitarian nature.

"(1) That in such cases the neutral require that the submarines shall run on the surface with their superstructure clearly visible and the national flag flying and give the international signal indicative of the cause which forces them to enter into the port or navigate in territorial waters, and also require them to follow the routes and channels of navigation, where such exist, indicated by the local government.

"(2) That territorial waters in which an international freedom of passage has been granted by customary or by conventional law be excluded from the prohibition of access of submarines.

...

"II. That the American Republics which decide to admit belligerent submarines in their territorial waters, shall do so under the following conditions:

"(1) Submarines shall run on the surface with their superstructure clearly visible and the national flag flying; and they shall follow the routes or channels of navigation, where there are such, indicated by the local government;

"(2) In the case of entrance into ports or harbors, special permission must be obtained from the neutral government in each particular instance. "III. That in all cases where belligerent submarines are permitted to enter territorial waters or ports of neutral States, in conformity with the provisions of Articles 1 and 2, they shall be subjected to the general rules governing belligerent surface warships, in so far as no special regulations exist with respect to submarines."

34 A. J. I. L. Supp. (1940) 78, 79-80.

Various states forbid the entry of belligerent submarines except in case of distress, when they must navigate on the surface. For the rules of Argentina and Ecuador, see the Embassy of the Argentine Republic to the Department of State, no. 112, May 22, 1941, MS. Department of State, file 740.00111A.R./1298; the Minister to Ecuador (Long) to Secretary Hull, nos. 916 and 961, Mar. 29 and Apr. 23, 1940 (enclosures), ibid. /996 and /1023. For the rules of Brazil, Dominican Republic, Honduras, Mexico, and Panama (prohibiting entry of merchant and warlike submarines), and those of Venezuela, see Deák and Jessup, Collection of Neutrality Laws, etc., Supp. (1940) 124[3], 547[5], 699[3], 781[3], 864 [3], 1309[7]. With respect to the Haitian decree of July 8, 1940, see the Minister to Haiti (White) to the Secretary of State (Hull), no. 899, Mar. 14, 1942 (enclosure), MS. Department of State, file 800.04418/139.

PRIZES

§673

Article XXI of Hague Convention XIII of 1907 provides:

A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions. It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral Power must order it to leave at once; should it fail to obey, the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew.

2 Treaties, etc. (Malloy, 1910) 2352, 2361; 36 Stat. 2415, 2431. To the same effect, see Instructions for the Navy of the United States Governing Maritime Warfare (June 1917), pars. 20-21.

Article XXII of the same Hague convention provides:

"A neutral Power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in Article XXI.”

Provisions substantially similar to those of the Hague convention are found in articles 17 and 18 of the convention on maritime neutrality signed at Habana, Feb. 20, 1928, 4 Treaties, etc. (Trenwith, 1938) 4743, 4747; 47 Stat. 1989, 1993.

Article 10 of the Netherlands neutrality proclamation of August 5, 1914 provided that prizes might be brought into territory of the Netherlands only on account of unseaworthiness, stress of weather, or lack of fuel or provisions; they were to leave as soon as the cause for entrance was removed, and in case of refusal to leave the prize was to be liberated, together with her officers and crew, and the prize crew was to be interned.

Part of the crew of the German warship Emden, after its destruction by the British warship Sydney, escaped on board the British schooner Ayesha, which they had captured. Because of her unseaworthiness and lack of provisions the schooner entered the Netherlands Indies port of Padang on November 27, 1914, and her German commander