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By the rules for the observance of neutrality, published in the London Gazette, Feb. 11, 1904, the amount of coal which might be supplied to a belligerent war ship was defined as so much" as may be sufficient to carry such vessel to the nearest port of her own country, or to some nearer named neutral destination."
This rule was qualified by rules issued by the British Admiralty, Aug. 5, 1904, by which it was explained that the reason for the practice of admitting belligerent vessels of war to neutral ports arose out of "the exigencies of life at sea" and "hospitality," but that this did "not extend to enabling such vessels to utilize a neutral port directly for the purpose of hostile operations." It was therefore declared that the rule above quoted was "not to be understood as having any application to the case of a belligerent fleet proceeding either to the seat of war, or to a position or positions on the line of route, with the object of intercepting neutral vessels on suspicion of carrying contraband of war;" that "such fleet can not be permitted to make use in any way of a British port for the purpose of coaling, either directly from the shore, or from colliers accompanying the fleet, whether the vessels of the fleet present themselves at the port at the same time or successively;" and that the same course was to be pursued with reference" to single belligerent war vessels, if it be clear that they are proceeding for the purpose of belligerent operations as above defined,” though it was "not to be applied to the case of a vessel putting in on account of actual distress at sea.”
Parl. Papers, Russia, No. 1 (1905), 10, 11, 15.
The issuance of these rules was directly connected with the controversy with Russia touching contraband. Indeed, Lord Lansdowne, in advising the Russian ambassador at London of their issuance, declared that the decision of the Russian Government to regard coal as “unconditionally contraband of war" had made it incumbent upon the British Government "to use special vigilance when dealing with the question of coal supply." Under the formula used in the rule published on Feb. 11, 1904, a Russian ship, said Lord Lansdowne, might take on board, say at Aden, enough coal to carry her to Vladivostock." The rule, however, would continue to apply to all vessels not coming within the scope of the rules of August 8. These rules would apply equally to both belligerents. The Russian ambassador inquired whether they would be extended to supplies of provisions and stores as well as of coal. Lord Lansdowne replied that his communication referred only to coal, though personally he saw no difference between the privilege of coaling and that of obtaining other supplies. (Id. 14–15.)
"May she [a belligerent cruiser] also replenish her stock of coal? To ask this question may obviously, under modern conditions and under certain circumstances, be equivalent to asking whether belligerent ships may receive in neutral harbours what will enable them
to seek out their enemy, and to manœuvre while attacking him. It was first raised during the American civil war, in the first year of which the Duke of Newcastle instructed colonial governors that' With respect to the supplying in British jurisdiction of articles ancipitis usus (such, for instance, as coal), there is no ground for any interference whatever on the part of colonial authorities.' But by the following year the question had been more maturely considered, and Lord John Russell directed on January 31, 1862, that the ships of war of either belligerent should be supplied with so much coal only as may be sufficient to carry such vessel to the nearest port of her own country, or to some nearer destination.' Identical language was employed by Great Britain in 1870, 1885, and 1898, but in the British instructions of February 10, 1904, the last phrase was strengthened so as to run: or to some nearer named neutral destination.' The Egyptian proclamation of February 12, 1904, superadds the requirement of a written declaration by the belligerent commander as to the destination of his ship and the quantity of coal remaining on board of her; and Mr. Balfour, on July 11, informed the House of Commons that Directions had been given for requiring an engagement that any belligerent man-of-war, supplied with coal to carry her to the nearest port of her own nation, would in fact proceed to that port direct.'
"Finally, a still stronger step was taken by the Government of this country, necessitated by the hostile advance towards Eastern waters of the Russian Pacific squadron. Instructions were issued to all British ports on August 8, which, reciting that Belligerent ships of war are admitted into neutral ports in view of the exigencies of life at sea, and the hospitality which is customary to extend to vessels of friendly powers, but this principle does not extend to enable belligerent ships of war to utilize neutral ports directly for the purpose of hostile operations,' goes on to direct that the rule previously promulgated, inasmuch as it refers to the extent of coal which may be supplied to belligerent ships of war in British ports during the present war, shall not be understood as having any application to the case of a belligerent fleet proceeding either to the seat of war or to any position, or positions, on the line of route, with the object of intercepting neutral ships on suspicion of carrying contraband of war, and that such fleets shall not be permitted to make use, in any way, of any port, roadstead or waters, subject to the jurisdiction of His Majesty, for the purpose of coaling, either directly from the shore or from colliers accompanying such fleet, whether vessels of such fleet present themselves to such port or roadstead, or within the said waters, at the same time or successively; and that the same practice shall be pursued with reference to single belligerent ships of war proceeding for the purpose of belligerent operations, as above defined; provided that
this is not to be applied to the case of vessels putting in on account of actual distress at sea.'"
Neutral Duties in a Maritime War, by Thomas Erskine Holland, Proceedings of the British Academy, II. 6–7; citing Parl. Papers, Russia No. 1 (1905), 15, and Malta Government Gazette of August 12, 1904.
To an inquiry of the Government of the Netherlands as to whether the United States understood that the Japanese declaration that coal was contraband of war entailed any restrictions of the rule that coal might be supplied to a belligerent man-of-war in neutral waters sufficient to enable it to reach the nearest home port, the Department of State replied in the negative, saying that the effect of the Japanese proclamation was understood to be merely to serve notice that where Japan found coal being carried to her enemy she would seize it, just as in the case of other articles treated as contraband.
For. Rel. 1904, 523.
See Lapradelle, La Nouvelle Thèse du Refus de Charbon aux Belligérants dans les Eaux Neutres, Revue Générale de Droit Int. XI. 531.
7. QUESTION AS TO RESCUE OF SEAMEN.
"I freely admit that it is no part of a neutral's duty to assist in making captures for a belligerent, but I maintain it to be equally clear that, so far from being neutrality, it is direct hostility for a stranger to intervene and rescue men who had been cast into the ocean in battle, and then carry them away from under the conqueror's guns." Mr. Seward, Sec. of State, to Mr. Adams, min. to England, No. 1035, July 15, 1864, Dip. Cor. 1864, II. 218, 219, referring to the action of the British steam yacht Deerhound, in picking up Captain Semmes and other survivors of the Alabama and taking them to England, where they were set at liberty.
"One can hardly admit into this class of neutral obligation [i. e., of abstention] a duty not to rescue drowning crews of a belligerent warship. The question was raised with reference to the action of the British yacht Deerhound, when the Alabama was sunk by the Kearsarge off Cherbourg; and was again discussed with reference to the help rendered to the crew of the Variag, when that vessel was destroyed last year in the harbour of Chemulpo. It must doubtless be the duty of the government to which the rescuers belong to see that their charitable interference does not set free the persons benefited by it for continued service in the war."
Neutral Duties in a Maritime War, by Thomas Erskine Holland, Proceedings of the British Academy, H. 3.
IV. ACTS NOT PROHIBITED.
1. SALE OF MERCHANT SHIPS.
It is not a violation of the neutrality laws of the United States for a merchant or ship owner to sell his vessel and cargo (should the latter even consist of warlike stores) to a citizen or inhabitant of Buenos Ayres (then an insurgent belligerent). Nor will it make any difference whether such sale be made directly in a port of the United States, with immédiate transfer and possession thereupon, or under a contract entered into here, with delivery to take place in a port of South America.
Rush, At. Gen., 1816, 1 Op. 190.
"If vessels have been built in the United States and afterwards sold to one of the belligerents and converted into vessels of war, our citizens engaged in that species of manufacture have been equally ready to build and sell vessels to the other belligerent. In point of fact both belligerents have occasionally supplied themselves with vessels of war from citizens of the United States. And the very singular case has occurred of the same shipbuilder having sold two vessels, one to the King of Spain and the other to one of the southern republics, which vessels afterwards met and encountered each other at sea. "During the state of war between two nations the commercial industry and pursuits of a neutral nation are often materially injured. If the neutral finds some compensation in a new species of industry, which the necessities of the belligerents stimulate or bring into activity, it can not be deemed very unreasonable that he should avail himself of that compensation, provided he confines himself within the line of entire impartiality, and violates no rule of public law."
Mr. Clay, Sec. of State, to Mr. Rivas y Salmon, Spanish chargé, June 9,
Mr. Clay's opinion is cited and followed in Mr. Bayard, Sec. of State, to
Shipbuilding is a great branch of American manufactures, in which the citizens of the United States may lawfully employ their capital and industry. When built they may seek a market for the article in foreign ports as well as their own. The Government adopts the necessary precaution to prevent any private American vessel from leaving our ports equipped and prepared for hostile action, or, if it allow, in any instance, a partial or imperfect armament, it subjects the owner of the vessel to the performance of the duty of giving
bond, with adequate security, that she shall not be employed to cruise or commit hostilities against a friend of the United States.
"It may possibly be deemed a violation of strict neutrality to sell to a belligerent vessels of war completely equipped and armed for battle, and yet the late Emperor of Russia could not have entertained that opinion, or he would not, have sold to Spain during the present war, to which he was a neutral, the whole fleet of ships of war, including some of the line.
"But if it be forbidden by the law of neutrality to sell to a belligerent an armed vessel completely equipped and ready for action, it is believed not to be contrary to that law to sell to a belligerent a vessel in any other state, although it may be convertible into a ship of war. "To require the citizens of a neutral power to abstain from the exercise of their incontestable right to dispose of the property, which they may have in an unarmed ship, to a belligerent, would in effect be to demand that they should cease to have any commerce, or to employ any navigation in their intercourse with the belligerent. It would require more-it would be necessary to lay a general embargo, and to put an entire stop to the total commerce of the neutral with all nations; for, if a ship or any other article of manufacture or commerce, applicable to the purpose of war, went to sea at all, it might directly or indirectly find its way into the ports, and subsequently become the property of a belligerent.
"The neutral is always seriously affected in the pursuit of his lawful commerce by a state of war between other powers. It can hardly be expected that he should submit to a universal cessation of his trade, because by possibility some of the subjects of it may be acquired in a regular course of business by a belligerent, and may aid him in his efforts against an enemy. If the neutral show no partiality; if he is as ready to sell to one belligerent as the other; and if he take, himself, no part in the war, he cannot be justly accused of any violation of his neutral obligations."
Mr. Clay, Sec. of State, to Mr. Tacon, Spanish min., Oct. 31, 1827, MS.
See, also, Mr. Clay, Sec. of State, to Mr. Rebello, Brazilian chargé, May
"On the 19th ultimo you telegraphed to the Department inquiring Can Americans sell steamers to Chinese? You were answered to the effect that the inquiry was too vague to admit of intelligent examination.
"On March 20 you repeated the inquiry in a modified form, Can American steamers here be sold to Chinese?"
H. Doc, 551-vo] 7——61