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§ 1305.

Mr. Seward complained that the governor of Maranham, Brazil, allowed the "pirate" Sumter to enter that port to receive shelter for an indefinite period and to procure supplies by purchase of coal and provisions in unlimited quantities, and that she used the supplies and provisions so obtained in making a voyage across the Atlantic, in which she renewed her depredations on American merchant vessels. The Brazilian Government justified the conduct of the governor of Maranham. The discussion drifted into an affirmation by Brazil and a denial by the United States that the Sumter was entitled to belligerent rights, the question of the quantity of coal and supplies taken being neglected in the controversion of this point.

Mr. Seward, Sec. of State, to Mr. Webb, min. to Brazil, No. 20, March 18,

1862, MS. Inst. Brazil, XV. 319; same to same, No. 21, April 3, 1862, id. 325.

It was maintained by the United States at Geneva and denied by Great Britain that an undue indulgence was shown to Confederate cruisers in the extent to which they were permitted to obtain supplies of coal in British ports.

Count Sclopis took the view that the question of coal supply could be treated only as connected with the second rule of Article VI. of the treaty of Washington, which declares that a neutral government is bound not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other or for the purpose of the renewal or augmentation of military supplies. He would not say that the mere fact of having allowed a greater amount of coal than was necessary to enable the vessel to reach the nearest port of its own country constituted in itself a ground for an indemnity. But when he saw the Florida choose for her field of action the stretch of sea between the Bahama Archipelago and Bermuda to cruise there at ease, and the Shenandoah choose Melbourne and Hobsons Bay for the purpose, which was immediately carried out, of going to the Arctic seas to attack whaling vessels, he could not but regard supplies of coal in quantities sufficient for such purposes as infringements of the rule above mentioned.

Mr. Adams expressed the opinion that the safest course in any critical emergency would be to deny altogether a supply of coal to a belligerent vessel, except perhaps in the case of positive distress. Such a policy would, however, he said, be regarded as selfish and illiberal and would entail upon powers enormous and continual expense for the maintenance of coaling stations. He thought that a supply of coal would involve no responsibility to the neutral when it was made in

response to a demand presented in good faith with the single object of satisfying a legitimate purpose openly assigned; but that the contrary would be the case if it was made either tacitly or explicitly with the view to promote or complete the execution of a hostile act. He therefore thought that the only way to determine the responsibility of a neutral in such a case was “by an examination of the evidence to show the intent of the grant in any specific case."

Sir Alexander Cockburn contended that the term "base of naval operations" had no relation to the case of a vessel which, while cruising against an enemy's ship, put into a port, and, after obtaining necessary supplies, again pursued her course, but that it referred to the use of a port or of waters as a place from which a fleet or ship might watch an enemy and sally forth to attack him, with the possibility of falling back upon the port or waters in question for fresh supplies or shelter or a renewal of operations.

Mr. Staempfli, in his opinion in the case of the Sumter, held that the permission given to that vessel did not in itself constitute a sufficient basis for charging the British authorities with a failure in the observance of neutral duties, especially as the vessel was, both before and afterwards, permitted to obtain coal in the ports of many other states, and that her last supply before she crossed the Atlantic was not secured in a British port.

The tribunal of arbitration in its award held: "In order to impart to supplies of coal a character inconsistent with the second rule, prohibiting the use of neutral ports or waters as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances of time, of persons, or of place, which may combine to give them such character."

In signing the award Viscount d'Itajubá remarked that he was of opinion that every government was "free to furnish to the belligerents more or less" of coal.

It does not appear that in any case Great Britain was held responsible for the acts of a vessel in consequence of supplies of coal.

Moore, Int. Arbitrations, IV. 4097-4101; Papers relating to the Treaty of
Washington, IV. 433, 458, 513, 74, 148, 422, 136, 50, 47.

It is not a breach of neutrality for a neutral state to permit the coaling of belligerent steamers in its ports to the same extent as it permits the coaling of other foreign steamers resorting to its ports casually and without settled stations established for them. Nor is it a breach of neutrality for a neutral state to permit the sale of coal to any extent to a belligerent. It would, however, be a breach of neutrality for a neutral to permit a permanent depot or magazine to be opened on its shores, on which a particular belligerent could depend for constant supplies. To require a neutral to shut up its ports

so as to exclude from coaling all belligerents, would expose a nation with ports as numerous as those of the United States to an expense as great as would be imposed by actual belligerency. It is on the belligerent, who goes to war, not on the neutral, who desires to keep out of it, that should be thrown expenses so enormous and constitutional strains so severe as those thus required. On the other hand, the breaking up of central depots or magazines for the constant supply of particular belligerents would be within easy range of ordinary national police. Nor can there be any charge of partiality made in allowing coaling with the limitation above stated, when the same privilege is granted to both belligerents.

2 Wharton, Crim. Law (9th ed.), § 1908.

In the Franco-German war, 1870, Prince Bismarck earnestly remonstrated with Great Britain for permitting the export of coal to France. This remonstrance, however, was ineffectual. "When Prussia was in the same position as that in which Great Britain found. herself in 1870, her line of conduct was similar, and she found herself equally unable to enforce upon her subjects stringent obligations against the exportation even of unquestionable munitions of war. During the Crimean war arms and ammunition were freely exported from Prussia to Russia, and arms of Belgian manufacture found their way to the same quarter through Prussian territory, in spite of a decree issued by the Prussian Government, prohibiting the transport of arms coming from foreign states.”

2 Halleck's Int. Law (3d ed., by Baker), 228, note. "It appears from the Journal Officiel of July 26, 1870, that the French Government did not consider coal to be contraband of war." (Ibid.)

"It is certainly no breach of neutrality to sell coal for use on a belligerent steamer visiting the port of sale casually under distress of weather. But it would plainly be a breach of neutrality to establish a coaling depot to supply all steamers of belligerent." (Whart. Com. Am. Law, § 226.)

See views of W. B. Lawrence, in Wharton's Crim. Law (9th ed.), § 1908.

During the Franco-German war the Peruvian Government issued, October 31, 1870, a decree limiting the amount of coal that might be obtained by belligerent ships to a quantity sufficient to take them to their nearest home or territorial port, for the obtaining of which supply they were to be allowed to remain in port only so long as was necessary; and they were not allowed to renew their supply till four months had elapsed from the date of their last departure from Peruvian waters.

Mr. Elmore, Peruvian min. of for. aff., to Mr. Dudley, Am. min., July 23, 1898, enclosed with Mr. Dudley to Mr. Day, Sec. of State, July 21, 1898, MSS. Dept. of State.

A number of the neutrality proclamations issued by foreign powers during the war between the United States and Spain contained a clause limiting the supply of coal which a belligerent vessel might obtain to a quantity sufficient to take such vessel to the nearest port of its own country, or, in other words, to its nearest national port. In the decree of the Netherlands, the provision read that "the store of coal shall only be supplemented sufficiently to allow the ship or vessel to reach the nearest port of the country to which it belongs, or that of one of its allies in the war." When the Spanish fleet, which was afterwards destroyed at Santiago, arrived off Curaçao on the 14th of May, 1898, the commander sought from the Dutch colonial authorities permission to await there 5,000 tons of coal which had been sent thither. This request was denied, as well as a request for permission to ship the coal whenever it should arrive. A request that each vessel be allowed to take 700 tons was likewise refused. Finally, permission was asked and granted for two of the vessels, the Maria Teresa and the Vizcaya, to enter the harbor and each to take 200 tons, the rest of the ships meanwhile to remain at anchor in the roads. The 400 tons thus obtained were said to be of " very poor quality."

Mr. Newel, minister at The Hague, to the Sec. of State, May 20, 1898, MSS. Dept. of State; Mr. Moore, Assist. Sec. of State, to the Sec. of the Navy, June 2, 1898, 229 MS. Dom. Let. 93; Mr. Smith, consul at Curaçao, May 16 and May 18, 1898, MSS. Dept. of State. There was at one time a rumor, which proved to be erroneous, that the Maria Teresa and the Vizcaya each obtained at Curaçao 600 tons of coal, which was far more than enough to take them to Porto Rico, the nearest Spanish possession, or to Cuba. By such a transaction Curaçao would have been “converted into a base of hostile operations for Spanish vessels in violation of neutrality." (Mr. Day, Sec. of State, to Mr. Newel, tel., May 17, 1898, MS. Inst. to the Netherlands, XVI. 357.)

When, in the latter part of May, 1898, it was rumored that the Spanish armored squadron had sailed or was about to sail to the United States and might stop at the Azores for coal, the minister of the United States at Lisbon was instructed to protest against its coaling at those islands, on the ground that, as they lay entirely outside the route from Spain to the Spanish West Indies, such an act would convert the Portuguese territory into a base of hostile operations against the United States.

Mr. Day, Sec. of State, to Mr. Townsend, min. to Portugal, tel., May 20, 1898, MS. Inst. Portugal, XVI. 146.

The squadron did not in fact sail westward, but afterwards proceeded eastward as far as the Suez Canal, and then returned to Spain.

Before the outbreak of hostilities, the Pacific Mail Steamship Company was permitted, under its agreement with the Mexican Government, to furnish supplies of coal to United States men-of-war at Acapulco. During the war, the Mexican Government placed limitations on the supply of coal to belligerent vessels in its ports, and made no exception as to United States vessels at Acapulco. The Department of State abstained from addressing any representation to Mexico on the subject, on the ground that as it had “ on numerous recent occasions asked of Mexico the strict execution of its neutral duties," it was "not disposed, upon the strength of an agreement between the Pacific Mail Steamship Company and the Mexican Government, made before the war, to insist that public ships of the United States may now be allowed to take coal without limit in a Mexican port."

Mr. Day, Sec. of State, to Sec. of Navy, Aug. 5, 1898, 230 MS. Dom. Let. 541.

June 29, 1898, when it was supposed that the Spanish armored fleet would proceed to the Philippines by way of the Suez Canal, Mr. Hay, the United States ambassador in London, was instructed to inform the British Government of a report that the Spanish fleet intended to coal from British colliers at the British island of Perim.

Mr. Hay replied that the British Government had cabled to the resident at Aden and the assistant resident at Perim, concerning the British vessel Imaum, whose presence had given rise to the report, and that it was ascertained that she was then discharging 5,000 tons of coal consigned to the Perim Coal Company, and that when this work was finished she would proceed to Karachi. He stated that every precaution had been taken to prevent a violation of neutrality.

For. Rel. 1898, 983-984.

"British Government concludes Camara can not remain at Port Said more than twenty-four hours, except in case of necessity, and can not coal there if he has enough coal to take him back to Cadiz, which appears to be the case."

Mr. Hay, ambass. to England, to Mr. Day, Sec. of State, tel., June 29, 1898, For. Rel. 1898, 983.

"We learn that the acting consul-general of the United States has
addressed another note to the Egyptian Government calling its atten-
tion to the fact that the Spanish admiral at Port Said has long
exceeded the time, allowed by international law, for remaining in a
port belonging to a neutral power.

"The governor-general of the Suez Canal has received instructions to
request Rear-Admiral Camara to arrange for the departure from Port
Said of the squadron under his command, as soon as possible.
"Two Spanish colliers have arrived at Port Said, but transshipment of
the coal in the port has been forbidden." (The Egyptian Gazette,
Alexandria, Egypt, Friday, July 1, 1898.)

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