Republics, in their General Declaration of Neutrality of October 3, 1939, expressly disclaimed the intention to assimilate to warships belligerent merchant-vessels armed for defensive purposes." II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 572-573. See also II Hyde, International Law, etc. (1922) 739-742. Cf. Borchard, "Armed Merchantmen", 34 A.J.I.L. (1940) 107. Section 8 of the joint resolution of Congress approved May 1, 1937 U.S."Neutral- provided that whenever during a war in which the United States was ity Acts", neutral the President should find that special restrictions placed on 1937, 1939 the use of the ports and territorial waters of the United States by armed merchant vessels of a foreign state "will serve to maintain peace between the United States and foreign states, 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 should be unlawful for such armed merchant vessels to enter or depart from ports or territorial waters of the United States except under such conditions as the President might prescribe. This was continued in section 11 of the joint resolution of November 4, 1939. 1939 50 Stat. 121, 127; 54 Stat. 4, 9. Until the United States entered the war in Dec. 1941, no proclamation placing such restrictions on armed merchant vessels had been issued under these provisions. In an aide-mémoire of June 5, 1939 the British Embassy inquired concerning the exact meaning of the term armed merchantmen used in section 8 of the Neutrality Act of 1937 (50 Stat. 121, 127). It suggested that there were two types of armed merchantmen: i.e., merchant vessels taken by the authorities for service as naval vessels, which, under the provisions of Hague Convention VII of 1907, must be commissioned as war vessels; and merchant vessels which carry armament for defensive purposes only. The Department of State replied: "Section 8 of the Joint Resolution approved May 1, 1937 (50 Stat. 127) regarding submarines and armed merchant vessels, has to do with merchant vessels which have not been converted into war vessels in the manner contemplated by Hague Convention No. VII. It is designed to apply to merchant vessels whether armed for offensive or for defensive purposes, the theory being that it is often difficult, if not impossible, to draw a line of demarcation between offensive and defensive armaments." Aide-mémoire of the British Embassy (handed by Mr. Mallet to Mr. Moffat), June 5, 1939, and aide-mémoire of the Department of State (handed by Mr. Dunn to Mr. Mallet), June 19, 1939, MS. Department of State, file 711.00111/132. this Government is presently considering that armed merchant vessels of belligerent nationality whose arms are intended and used solely for defensive purposes are entitled to the privileges accorded to other merchant vessels in American ports without discrimination on account of such defensive armament. Such action is not violative of any provisions of the law of the Secretary Hull to Representative Bland, Oct. 30, 1939, MS. Department of State, file 740.00111A Armed Merchantmen/17. The Belgian declaration of neutrality of Sept. 3, 1939 provided that defensively armed merchant vessels should be allowed to enter and remain in Belgian ports and harbors. Deák and Jessup, Collection of Neutrality Laws, etc., Supp. (1940) 74[1]. The Rumanian declaration of Nov. 22, 1939 (no. 4203) permitted the sojourn of belligerent armed merchant vessels equipped with not more than two guns placed for defensive purposes, stating that all other armed merchant vessels would be treated as warships. Ibid. 918[2]. Article 3 of the proclamation of neutrality of the Netherlands of Sept. 1, 1939 provided: "Merchant ships provided with guns for defensive purposes, after having fulfilled the requirements for safety fixed by the local authorities, are admitted to the ports and roadsteads only up to a number commensurate with the safety of the country as decided by the local authority and provided that the number of-their guns above 8 cm. caliber is not more than two and their caliber less than 16 cm., and if the size of their crews does not exceed appreciably the normal strength necessary for commercial purposes." Ibid. 823[3]. The general declaration of neutrality approved at Panamá on October 3, 1939 provided that the American republics: (j) Shall not assimilate to warships belligerent armed merchant vessels if they do not carry more than four six-inch guns mounted on the stern, and their lateral decks are not reinforced, and if, in the judgment of the local authorities, there do not exist other circumstances which reveal that the merchant vessels can be used for offensive purposes. They may require of the said vessels, in order to enter their ports, to deposit explosives and munitions in such places as the local authorities may determine. 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. See also Department of State, I Bulletin, no. 15, p. 328 (Oct. 5, 1939). A Venezuelan decree dated Sept. 12, 1939 provided that armed merchant vessels of the belligerents should be regarded as warships except in cases where their armament was exclusively defensive. In September 1939 the Venezuelan Ministry of War and Marine issued an order laying down criteria for determining whether the armament of a merchant vessel was solely defensive. Under it, the following were grounds for presuming the armament to be defensive: (1) official diplomatic advice that the armament would be used for defense only; (2) evidence that the ports of origin and destination were ports of call on the vessel's regular itinerary; (3) evidence that the cargo was of the general character destined for Neutral armed merchantmen peaceful traffic; (4) evidence that the ship was carrying persons unsuited for military or naval service; (5) evidence that the ship's complement was not appreciably different from what it would be in time of peace; (6) evidence that the gun emplacements were built in accordance with article XIV of the Washington naval armament limitation treaty of 1922. The Ambassador to Venezuela (Corrigan) to the Secretary of State (Hull), no. 56, Sept. 27, 1939, MS. Department of State, file 740.00111A.R./401. See also Deák and Jessup, Collection of Neutrality Laws, etc., Supp. (1940) 1309[7], 1309[12]. Defensively armed merchant vessels were to be admitted to port but other armed merchant vessels were to be regarded as warships, under Brazilian Decree-Law 1561 of Sept. 2, 1939. Deák and Jessup, Collection of Neutrality Laws, etc., Supp. (1940) 124[5]. A similar rule is contained in the Cuban Presidential Decree 2073 of Sept. 1, 1939, ibid. 462[5]; Law 163 of the Dominican Republic enacted Oct. 18, 1939, ibid. 547[3]; and Honduran Decree 38 of Nov. 13, 1939, ibid. 699[4]. The Mexican "General Instructions" in regard to certain rules of neutrality, issued Nov. 11, 1939, provided that "merchant vessels equipped for military use, regardless of whether their armaments are destined for offensive or defensive purposes", shall not remain in Mexican ports, anchorages, or territorial waters. Ibid. 781[3]. Secretary Lansing, in March 1917, requested the American diplomatic representatives in the Netherlands, Spain, Norway, and Sweden to report whether neutral armed American merchant vessels would be excluded from the ports of the states to which they were accredited. On April 14, 1917 the Minister of Foreign Affairs of the Netherlands replied that the Royal decree of July 30, 1914 forbade as a general rule the presence of warships or vessels assimilated thereto "of any foreign power" but that this did not apply to the colonies. He said that with respect to belligerent ships the Netherlands neutrality proclamation had substituted special provisions which included overseas possessions; and he concluded— the presence of armed merchant ships of a belligerent power is forbidden throughout the jurisdiction of the State, while to such ships of a neutral power entry into the jurisdiction is only forbidden in so far as concerns the territory of the Kingdom in Europe. [Translation.] 1917 For. Rel., Supp. 1, pp. 553, 555, 556; Netherlands, Diplomatieke bescheiden betreffende de toelating van bewapende handelsvaartuigen der oorlogvoerenden en onzijdigen binnen het Nederlandsche Rechtsgebied (1917) 17. The Ambassador to Spain reported that the Spanish Government allowed the entry as merchant vessels of vessels armed with one gun for defensive purposes and that no distinction was drawn between neutral and belligerent armed merchant vessels, while in fact merchant vessels armed with more than one gun were allowed to enter when the armament was obviously for defensive purposes. The Ambassador to Spain (Willard) to Mr. Lansing, telegram 423, Mar. 18, 1917, MS. Department of State, file 763.72/3539; 1917 For. Rel., Supp. 1, p. 554. The Swedish Foreign Minister stated that armed American merchant vessels would be allowed freely to enter and depart from Swedish ports, although the Swedish Government reserved the right to treat each case separately. The Minister to Sweden (Morris) to Mr. Lansing, telegram 246, Mar. 21, 1917, MS. Department of State, file 763.72/3567; 1917 For. Rel., Supp. 1, pp. 554-555. Norway allowed even belligerent armed merchant vessels to enter and depart. Mr. Morris to Mr. Lansing, telegram 231, Mar. 17, 1917, MS. Department of State, file 763.72/3530; 1917 For. Rel., Supp. 1, p. 554. AUXILIARY VESSELS $675 The position of auxiliary vessels in neutral waters is not specifically covered by the Hague conventions. The only discussion which appears to have arisen was in connection with the preparation of Hague Convention VII, relative to the conversion of merchant-ships into warships. Scott, Proceedings of the Hague Peace Conferences: The Conference of 1907 (1920-21), vol. I, p. 235; vol. III, pp. 838 et seq., 852. "The rules laid down in Convention XIII, with regard to men-of-war apply also to vessels assimilated to men-of-war, i.e. vessels used as transports or fleet auxiliaries or in any other way for the purpose of prosecuting or aiding hostilities. It is true that the relevant articles of Hague Convention XIII. speak only of 'belligerent men-of-war,' and do not mention vessels assimilated thereto. But paragraphs 3 and 4 of the Preamble state that 'it is not possible at present to concert measures applicable to all circumstances which may arise in practice,' and that 'in cases not covered by the present convention account must be taken of the general principles of the Law of Nations.' Without doubt, therefore, its stipulations concerning belligerent vessels of war apply to auxiliary vessels. ... ... "There has, in general, been a tendency to treat belligerent ships as auxiliary vessels not only on account of their formal status as such but also in all cases in which they render assistance to the belligerent naval forces." II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 566n., 567n. In article 12 of the convention on maritime neutrality signed at Habana in 1928 it is provided: Where the sojourn, supplying, and provisioning of belligerent ships in the ports and jurisdictional waters of neutrals are concerned, the provisions relative to ships of war shall apply equally: 1. To ordinary auxiliary ships; 2. To merchant ships transformed into warships, in accordance with Convention VII of The Hague of 1907. 4 Treaties, etc. (Trenwith, 1938) 4743, 4746; 47 Stat. 1989, 1992. Character of vessel The United States neutrality proclamation of September 5, 1939 provided: The provisions of this proclamation pertaining to ships of war shall apply equally to any vessel operating under public control for hostile or military purposes. 54 Stat. 2629, 2634. The Inter-American Neutrality Committee recommended, on February 2, 1940, with respect to auxiliaries, that: II. Merchant vessels, whether of belligerent or of neutral nationality, must, while in neutral ports, harbors or jurisdictional waters, be prevented from maintaining any contact with warships of belligerents by means of which such warships might receive assistance. Any assistance given by a merchant ship of belligerent nationality to a warship shall have the effect of constituting the merchant ship into an auxiliary belligerent vessel of war. Merchant ships that give belligerents services of a purely humanitarian character, either spontaneously or in response to a call for help, shall not be considered as auxiliaries of the said warships. It shall be up to each neutral State to decide whether the services given are of an exclusively humanitarian character. III. The auxiliary transports referred to hereinabove, together with their officers and crews, shall be assimilated to belligerent warships and shall be subject to the rules of internment. 34 A.J.I.L. Supp. (1940) 80, 81. It seems to me that to treat a vessel as part of the naval forces of her country should be based upon direct evidence that she has been acting in that character. Mere lapse of time and deviation from course may have a confirmatory effect, but standing alone they have to my mind no direct evidencíal value.. The Counselor for the Department of State (Lansing) to the British Ambassador (Spring Rice), Nov. 23, 1914, MS. Department of State, file 763.72111/1115. The Department of State took the position that no change in the status of a merchant vessel resulted from the mere change of the color of the ship or any portion thereof evidently designed only to render her less visible and to diminish the risk of capture. The Department of State to the British Embassy, memorandum of Oct. 16, 1914, MS. Department of State, file 763.72111/431. With reference to a British merchant vessel engaged in transporting “in the view of this Department the presence of this crew on board this 1 1 |