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1904 with Panama. The rules are intended to maintain both the neutrality of the Canal and that of the United States holding and operating it as a government enterprise. It is understood that they are the result of the joint efforts of representatives of the Departments of State, Justice, War and Navy. The framers, for the most part, have based the provisions of the rules upon the Hay-Pauncefote Treaty, which prescribed the conditions under which the Canal was to be constructed and operated; the Convention Respecting the Free Navigation of the Suez Maritime Canal of October 29, 1888, and the Rules issued thereunder on February 10, 1904, covering the use of that canal by belligerent warships in the Russo-Japanese War; 2 and the treaty between the United States and Panama of February 26, 1904, by which the United States obtained the right to construct the canal. Where it was necessary to make rules which could not be obtained from any of the foregoing sources, the framers have followed the rules agreed upon by the nations in conference at The Hague. The Hague Convention of 1907 Respecting the Rights and Duties of Neutral Powers in Naval War (No. 13) is liberally drawn upon for guidance.
Rule 1 defines the meaning of a vessel of war. It may seem superfluous that such a definition should be made, since modern warships are so easily distinguished by their build, armament and crew from vessels used for peaceful purposes; but the practice of some Powers in recent years of converting certain merchant vessels, made adaptable in their construction for use as warships, into an auxiliary fleet in time of war adds to belligerent naval forces a type of vessels not easily distinguished from vessels of the same type which retain their private and commercial character. The laying down at the outset of the exact characteristics which the Government of the United States regards as appertaining to a vessel of war will obviate the probability of dispute over vessels whose character might otherwise be questionable. It is believed that this is the first time the term "vessel of war" has received such formal and official definition. According to Rule 1, such a vessel must be (a) a public armed vessel, (b) commanded by a duly commissioned officer, (c) whose name appears on the official list of officers of the military fleet, (d) the crew of which is under regular naval discipline, and (e) which is qualified by its armament and personnel to act offensively against the enemy's public or private ships. Requirements (a), (b), (c), and (d) conform to and seem to be based upon the articles of the Hague 2 Printed in British and Foreign State Papers, Vol. 102, p. 591.
Convention of 1907 Relative to the Conversion of Merchant Ships into Warships, which fix the conditions to be complied with in order that such merchant ships may have the rights and duties accruing to warships. The last requirement, (e), draws a line between ships armed for offensive purposes and those armed for defensive purposes. The evident intention in making this distinction is to exclude from the application of the rules merchant vessels of belligerent nationality which carry armament for the sole purpose of defense which the Department of State held, in a circular issued on September 19, 1914, would not acquire the character of ships of war.3
Rule 2 accords the same treatment as that given to belligerent vessels of war to every vessel not falling within the definition of Rule 1 which is employed in belligerent service as a transport or fleet auxiliary, or otherwise to aid in hostilities either on land or sea, whether such vessel be belligerent or neutral, armed or unarmed, hospital ships excepted. The rule follows Section 8 of the Suez Canal Rules of 1904.
Rule 3 requires the commanding officer of a warship, before it is permitted to pass through the Canal, to give a written assurance that the rules and regulations covering the use of the Canal will be observed. The reason for this rule is obvious. A public ship of a foreign nation is regarded either as a part of its territory or as a governmental agency, and as such it is not subject to local jurisdiction. The local authorities at Panama would therefore be unable to punish, according to the laws of the United States relating to the Canal and the rules and regulations issued thereunder, persons aboard such ships who may be guilty of infractions of the rules. By taking the assurance provided for in Rule 3 from the commanding officer of such a ship, it is made his duty to see to it that the rules and regulations are complied with, and a violation committed after such an assurance would be a just cause for complaint to his government and demand for reparation and, if the infraction were serious and no other remedy seemed adequate, the United States would be justified in barring the ship under his command from the further use of the Canal. See the first rule of Article 3 of the Hay-Pauncefote Treaty and Article 9 of Hague Convention No. 13.
This jurisdictional difference is further illustrated by the same rule in its provisions concerning transports, auxiliaries and other vessels referred to in Rule 2. Such vessels, it has been observed, may or may
For the criteria by which the offensive or defensive purpose of the armament may be determined, see text of the circular printed in the SUPPLEMENT, p. 121.
not be public vessels. If the vessel has the character of a public ship by being in command of an officer of the military fleet, the same written assurance is taken from him as that required from the commanding officer of a vessel of war: but, if such an officer is not in command, the authorities of the Panama Canal are authorized to take such steps as may be requisite to insure the observance of the rules and regulations.
Rule 4 restricts the revictualing and taking on of stores by war vessels, transports, and auxiliaries to what is strictly necessary and requires their transit through the Canal with the least possible delay. This rule is taken literally from the third rule of Article 3 of the Hay-Pauncefote Treaty, which in turn followed Article 4, par. 2, of the Suez Canal Convention. The rule provides further that prizes shall be subject to the same rules as belligerent warships. This provision is also taken literally from the Hay-Pauncefote Treaty and the Suez Canal Convention (Article 3, Rule 3, and Article 6, respectively). ·
Rules 5 and 6 prohibit, within the territorial waters of the Canal Zone, the receipt of fuel or lubricants by vessels of war, transports and auxiliaries, except on the written authorization of the Canal authorities specifying the amount of such supplies which may be furnished, and provides that, before such authorization is given, the commanding officer shall declare in writing the amount of fuel and lubricants already on board his ship. Similar provisions relating to the supply of coal are found in Sections 1 and 2 of the Suez Canal Rules of 1904. The American rule, it will be noted, includes not only coal, but any article which might be used for fuel, and adds lubricants, which are almost as necessary for the operation of the complicated and delicate machinery of modern warships as the means of propulsion.
Rule 7 recognizes the difference in international law between the furnishing of supplies to a belligerent by a neutral government, which is prohibited, and by a neutral private individual, which is not prohibited. See Articles 6 and 7 of Hague Convention No. 13. By Section 6 of the Panama Canal Act of August 24, 1912, the President is authorized, through the government-owned Panama Canal Railroad Company, or otherwise, to establish and maintain facilities to provide "coal and other materials, labor, repairs, and supplies for vessels of the Government of the United States and, incidentally, for supplying such at reasonable prices to passing vessels." In order to avoid a violation of its neutrality in the exercise of its functions under this law, Rule 7 declares that
belligerent vessels will not be furnished with supplies at the Canal, either directly by the Government of the United States or indirectly by it through the intervention of a corporation or otherwise. The right of private individuals to furnish supplies to belligerents is not impaired, but the rule places the limitations upon it required by the laws of neutrality. After compliance with Rules 5 and 6, private contractors may, under Rule 7, supply belligerent vessels with fuel and lubricants in such amount as will enable them, with the supplies already on board, to reach the nearest accessible port, not an enemy port, at which they can obtain the supplies necessary for the continuation of the voyage. A similar rule covering coal is contained in Section 3 of the Suez Canal Rules of 1904, except that the reference to an enemy port is omitted, for the reason, probably, that an enemy port is not to be considered' as accessible for the purpose of taking on supplies. Hague Convention No. 13 differs from both the Panama Canal Rules and the Suez Canal Rules in this respect. It provides in Article 19 that belligerent warships may take on sufficient fuel to enable them to reach the nearest port in their own country.
The fuel and lubricants received in accordance with the foregoing stipulations will be deducted from the amounts otherwise allowed in United States ports within three months thereafter. In so providing, Rule 7 carries out the intention of Article 20 of Hague Convention No. 13, which forbids belligerent warships which have received fuel in a neutral port from replenishing its supply within the succeeding three months in a port of the same Power.
This rule contains a further provision which has probably been inserted because of the peculiar circumstances existing at the Panama Canal. It allows belligerent warships within the territorial waters of the Canal Zone to take supplies of fuel and lubricants from vessels under belligerent control on the same terms as such supplies may be furnished by private contractors. It is not unlikely that this concession to belligerents is due to the inability of their ships to replenish their fuel and lubricants from the principal, or at least the only reliable, supplies of such articles at the Canal, namely, those owned by the Government of the United States. Provisions other than fuel and lubricants may be furnished by contractors to belligerent ships only upon permission of the Canal authorities and then in such amount as to bring the ship's supplies up to the peace standard. The measure of these provisions is taken from Article 19 of Hague Convention No. 13.
Rule 8 prohibits belligerents from embarking or disembarking troops, munitions of war or warlike materials in the Canal, except in case of necessity, due to the accidental hindrance of the transit, of which necessity the Canal authorities shall be the judge, and the transit shall be resumed with all possible dispatch. This is an enactment of the fourth rule of Article 3 of the Hay-Pauncefote Treaty, with an interpretation which allows the embarkment or disembarkment only when the Canal authorities consider that the accidental hindrance of the transit makes such action necessary. A provision to the same effect, but dissimilar in detail, is found in Article 5 of the Suez Canal Convention, and Section 7 of the rules issued thereunder in 1904.
The stay of belligerent vessels in the territorial waters of the Canal Zone is limited by Rule 9 to twenty-four hours, except in case of distress, when they must leave as soon as possible, and a vessel of war of one belligerent may not depart within twenty-four hours from the departure of a vessel of an opposing belligerent. This is the fifth rule of Article 3 of the Hay-Pauncefote Treaty and it conforms to the third paragraph of Article 4 of the Suez Canal Convention and Sections 5 and 6 of the Suez Canal Rules. It is also in accordance with Hague Convention No. 13. A reasonable construction is placed upon the twenty-four hours referred to, by not including in them the time necessarily occupied in passing through the Canal.
In order to be sure that the Canal shall be kept free and open on terms of entire equality, Rule 10 forbids at any one time, except by special arrangement, more than three warships of a belligerent, including those of its allies, in either terminal port or its adjacent waters or in transit through the Canal, and limits to six the total number of such vessels at any one time in all the territorial waters of the Canal Zone. The reason given for the promulgation of the rule seems to indicate that it was feared if the use of the Canal was not restricted it might become blocked to commercial vessels, at least for a time, through its use by belligerent ships. The proclamation states that the rule is issued in the exercise of the exclusive right of the United States to regulate and manage the Canal. This right is granted to it by Article 2 of the HayPauncefote Treaty; but the rule is also justified by Article 15 of Hague Convention No. 13, which restricts to three the number of belligerent ships which may be simultaneously in a neutral port.
Rule 11 regulates the departure of vessels of the opposing belligerents when they happen to be present simultaneously in the waters of the