Office pointed out to the Minister that the law and the action taken thereunder rested on the power of "eminent domain". In June 1918 the Peruvian Government took steps toward requisitioning the larger vessels, despite protests from the Spanish Minister. By a presidential decree of September 5, 1918, under authority of Law 2696, the Peruvian Government "assumed the use and exploitation of the German vessels and their accessories" in the ports of Callao and Mollendo, against a credit of the appraised value. On September 6, 1918, Law 2770 was passed by the Peruvian Congress and approved by the Peruvian President, authorizing the executive power to enter into a contract with the United States Shipping Board Emergency Fleet Corporation for the "utilization of the German vessels requisitioned", upon certain terms. The contract, which had been agreed upon September 3, was thereupon signed September 6, 1918 by representatives of the Peruvian Government and the Emergency Fleet Corporation.

The contract covered the delivery and return of the vessels and provided that the lease was to last for thirty days after the close of the war, with an option to extend it for six months longer. By article 21 of the contract the Peruvian Government recognized the claims of the owners of the German vessels to their pre-war value, taking into account their condition and the damage probably done to them, rather than the increased value resulting from submarine warfare. The Emergency Fleet Corporation was given the option to buy the vessels at this value within six to twelve months after the expiration of the war.

After the signing of the contract, Peru replied on September 9, 1918 to the German protest by setting forth the irregularity of the German submarine warfare against neutrals, pointing to the necessities of Peru brought about by that submarine campaign, and stating that the utilization of the vessels would be without any injury or loss to their owners. On September 17 the Spanish Minister in charge of German interests protested the requisition and the lease to the United States. In its note of September 20 the Peruvian Government again justified the requisitioning and stated that the lease was a secondary matter resulting therefrom and afforded no independent ground for protest. The just rights of the owners were said to be duly protected.

Peru, 61 Boletín del Ministerio de Relaciones Exteriores (1919) 51-264, 265-312; Juan Bautista de Lavalle, El Perú y la Gran Guerra (1919) 86-110, 377-438; see also Percy Martin, Latin America and the War (1925) 393-407; MS. Department of State, file 862.85, passim.

For the contract of lease to the Emergency Fleet Corporation, see MS. Department of State, file 862.85/593; Peru, 61 Boletín del Ministerio de Relaciones Exteriores (1919) 295.

Uruguay, 1917

In connection with the lease contract Peru sought a guaranty by the United States Government with respect to any claims against Peru, concerning which Secretary Lansing wrote:

"... I take pleasure in informing you that the Government of the United States will accept the responsibility, in case negotiations are concluded between the United States Shipping Board and the Peruvian Government, for the use of the ex-German ships in Peru, in the event of any international claim arising from the use of these ships being brought against the Government of Peru." Secretary Lansing to the Peruvian Minister (De Freyre), Aug. 27, 1918, MS. Department of State, file 862.85/558; 1918 For. Rel., Supp. 1, vol. I, pp. 716, 717.

After the war the Reparation Commission decided that the German ships seized by Peru were not on Jan. 10, 1920 (the crucial date) German ships and therefore were not ceded to the Allied and Associated Powers under annex III of part VIII of the Treaty of Versailles. The United States Unofficial Delegate on the Reparation Commission (Boyden) to the Secretary of State (Hughes), July 18, 1921, and Mr. Hughes to the Peruvian Ambassador (Pezet), Aug. 23, 1921, MS. Department of State, file 862.85/1351.

In a note of Oct. 31, 1921 and an additional memorandum of Dec. 2, 1921 the German Minister in Lima referred to the decision of the Reparation Commission that these ships were to remain in the possession of Peru and that Peru was not to participate in reparations from Germany. As the rights of German owners had been preserved in the Peruvian law and in the contract with the Emergency Fleet Corporation, he demanded the value of the vessels or their return. In its reply of Nov. 21, 1921 the Peruvian Government referred to the expropriation as "the exercise of the right of eminent domain of the State in case of public necessity". With respect to the protection of German rights under the Peruvian law and the contract, it was said that the cost of repairing the vessels after their period of idleness and the sabotage done them was greater than their pre-war value, so that no compensation was due the former owners. Peru also pointed out that under the Treaty of Versailles the action was confirmed and Germany agreed not to make diplomatic claims based thereon. In a note of Mar. 22, 1922 the German Legation objected to the Peruvian calculations, which deducted the wartime costs of repairs from the appraised pre-war value, and again sought the advantage of the rights reserved to the German owners. On May 2 the Peruvian Foreign Office replied that Germany should not benefit from the higher prices of shipping caused by her own submarine campaign. Peru, 68 Boletín del Ministerio de Relaciones Exteriores (1930) 156-169.

Uruguay, on June 18, 1917, issued a decree to the effect that no American country finding itself at war in defense of its rights against nations of other continents shall be treated as a belligerent, thus giving the United States and other American belligerents advantages not accorded to the Central Powers. On October 7, 1917, Uruguay severed diplomatic relations with Germany, and on October 15 revoked its decrees of neutrality with respect to the Allies. Meanwhile, on September 14, 1917, the Government issued a decree authorizing the placing of armed guards on German merchant vessels

in Uruguayan waters, to prevent damage to them by their crews. Serious damage had already been done and Uruguayan laws had been violated by removal of the seals placed on the radio apparatus. The President of Uruguay asked the National Assembly to authorize the employment of these German ships by Uruguay, and such legislation was enacted November 9, 1917. The law provided for utilization of the vessels until the end of the war (or until the cessation of the need, if sooner), in return for an equitable compensation against which should be set off the expense of repairs. By a contract of May 24, 1918, approved by a law of June 4, the vessels were chartered to the United States Shipping Board Emergency Fleet Corporation.

Uruguay, Memoria del Ministerio de Relaciones Exteriores (Sept. 1916Feb. 1918) 439 et seq., 526 et seq., 579-597; Uruguay, 6 Boletin del Ministerio de Relaciones Exteriores (1918) 527-538, 657; the Chargé d'Affaires ad interim in Montevideo (Wadsworth) to the Secretary of State (Lansing), telegram of May 24, 1918, MS. Department of State, file 862.85/438; 1918 For. Rel., Supp. 1, vol. I, p. 692. For the charter contract, see MS. Department of State, file 862.85/516.

In connection with the proposal to charter the vessels, Secretary Lansing wrote that

"the Government of the United States wishes to make it clear that upon the acceptance of the bid of the Emergency Fleet Corporation, it will take upon itself any responsibility which on account of the use of the ships Uruguay may for any cause incur." Mr. Lansing to the Uruguayan -Minister (De Pena), no. 119, Feb. 26, 1918, MS. Department of State, file 862.85/326a; 1918 For. Rel., Supp. 1, vol. I, pp. 670, 671.

Chile and Argentina, both of which remained neutral throughout the World War of 1914-18, took control over German vessels which had sought refuge in their ports. On Sept. 2, 1918 their crews damaged the machinery of most of the 84 German merchant vessels laid up in Chilean ports. Thereafter Chilean authorities occupied first the undamaged German vessels and later the others; and on Nov. 5, 1918 the Chilean Government took possession of all the vessels. Negotiations had begun for the use of them by the United States or by the Allies; and after the termination of the war they were turned over to the Allied and Associated Powers. Chile, Memoria del Ministerio de Relaciones Exteriores, Culto y Colonizacion, Diciembre de 1915-Noviembre de 1919 (1920) 221-222, 231-232; the Secretary of State (Lansing) to the Ambassador to Chile (Shea), telegram of Sept. 9, 1918, MS. Department of State, file 763.72111/7140a; Mr. Shea to Mr. Lansing, telegram of Sept. 26, 1918, MS. Department of State, file 862.85/589; 1918 For. Rel., Supp. 1, vol. I, pp. 718-719, 727; the Consul General at Valparaiso (Keena) to Mr. Lansing, telegram of Sept. 27, 1918, MS. Department of State, file 862.85/590; the Consul at Antofagasta (Voetter) to Mr. Lansing, telegram from Valparaiso, Nov. 5, 1918, ibid. /619; Mr. Shea to Mr. Lansing, telegrams of Nov. 5, 1918, and Mar. 7, 1919, ibid. /622 and /721; see also New York Times, Sept. 6, 1918, p. 12, col. 7; ibid. Sept. 14, 1918, p. 15, col. 8; ibid. Nov. 5, 1918, p. 19, col. 8; ibid. Nov. 6, 1918, p. 16, col. 7.

Spain, 1918

Just prior to the Armistice Argentina likewise placed guards on interned and refugee German vessels in Argentine ports. The Ambassador to Argentina (Stimson) to Mr. Lansing, telegram of Nov. 5, 1918, MS. Department of State, file 862.85/620; 1918 For. Rel., Supp. 1, vol. I, p. 738; Mr. Stimson to Mr. Lansing, telegram of Nov. 6, 1918, MS. Department of State, file 862.85/623; 1918 For. Rel., Supp. 1, vol. II, p. 1752; see also New York Times, Nov. 6, 1918, p. 16, col. 7.

Spain, which remained neutral throughout the World War, requisitioned certain German vessels in her ports by way of reprisals. The Spanish Cabinet decided on August 10, 1918 that, in view of the sinking of Spanish ships by German submarines, all tonnage sunk in the future should be replaced by German ships tied up in Spanish ports. Negotiations with Germany proved unfruitful. On August 31, 1918 the Spanish Cabinet announced that the above decision would be put into immediate effect and that a German vessel would be seized if the reported sinking of a certain Spanish ship were confirmed. The German Embassy in Spain announced that Germany would deliver an equivalent tonnage for all Spanish vessels illegally or unjustly sunk by submarines but stated that Spanish confiscation of any interned German vessel without discussion on the merits of each case would be considered a cause for war. On October 15, 1918 the Spanish Cabinet decided to take temporary possession of seven German vessels which had sought refuge in Spanish ports. With respect to the negotiations preceding the taking of these vessels, the Spanish Ambassador informed the Department of State:

The German Embassy agreed to designate the ships and the proper steps were adopted by the Spanish Government to take them over but there was no agreement with the German Government upon the question of the ultimate title of the ships, or in regard to the juridical character of the possession of these ships by Spain, questions which were left to be decided by future negotiations or by arbitration.

You will, therefore, see that the seizure of the German ships responded to a purely unilateral resolution on the part of the Spanish Government; to which no condition of any kind was attached; and that no compromise or agreement of any sort was entered upon with the German Government regarding the future title to the ships in question.

1918 For. Rel., Supp. 1, vol. II, pp. 1716-1727; the Spanish Ambassador (Riaño) to the Counselor for the Department of State (Polk), no. 7, Jan. 4, 1919, MS. Department of State, file 862.85/1254.

On Aug. 21, 1918 the Spanish Government issued a press statement to the effect that

"the Government has decided to address the Imperial German Government and declare that, owing to the reduction of tonnage to its extreme limit, it will be obliged in the case of new sinkings to substitute therefor German

vessels interned in Spanish ports. This measure does not imply the confiscation of the ships under definite title. It would be only a temporary solution until the establishment of peace, when Spanish claims also will be liquidated.

"The decision of the Government to assure for itself sufficient tonnage, which is indispensable to its existence, does not affect its firm resolve to maintain strict neutrality."

New York Times, 9 Current History (Oct. 1918) 115-116.

Harley apparently regards this as a case of angary, saying: "The action of the Spanish Government furnishes a clear-cut example of a neutral seizing vessels of a belligerent". J. Eugene Harley, "The Law of Angary”, 13 A.J.I.L. (1919) 267, 299; but in an editorial note Charles N. Gregory suggests: "The act of the Spanish Government may perhaps be better understood as in the nature of reprisal than as an exercise of the right of Angary." Ibid.

In an aide-mémoire of March 4, 1941, to the Department of State, the German Embassy referred to a "British Press Service" state- U. S. requisiment of January 27, 1941, with respect to the exercise of the right of tion, 1941 angary by neutrals, and said:

These statements, emanating from official British sources, prompt the German Government to present its legal opinion in the premises. The sweeping interpretation of the so-called Right of Angary expounded in the afore-said statements finds no support in the universally recognized principles of international law:

(1) The Right of Angary has up to the present been claimed and resorted to by nations in order to be able to requisition foreign ships within their territorial waters and to use them for their own purposes. Prior to the World War, the Right of Angary was exercised only by belligerent states, and recognized authorities in international law are of the opinion that rights of Angary can only be exercised by belligerents. Moreover, the application of this right is limited to exceptional cases and requires a state of urgent public emergency, in the sense of a vital necessity (thus for instance Charles G. Fenwick in "International Law" 1934, p. 542; Hyde in "International Law" 1922, Vol. II, p. 262).

Whether the Right of Angary can also be exercised by neutrals is not clearly established by the practice in international law. According to the predominant opinion expressed in the literature on international law (see the above citations), the exercise of the Right of Angary by neutrals is not in conformity with the universally recognized international law. Whatever may be claimed in regard to the applicability of this right, the indispensable prerequisite for its application is a state of urgent public emergency. The mere reference to a general lack of tonnage is not sufficient to justify the exercise of the Right of Angary. The requisitioning of ships under such pretense would represent an abuse of power (see Hyde 1922, Vol. II, p. 282).

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