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the injury which would be inflicted upon them by the supply of armed vessels to their enemies as mere contraband of war. 14

Since Hall wrote, the first rule of the Treaty of Washington has been incorporated almost literally in the Hague Convention of 1907 Concerning the Rights and Duties of Neutral Powers in Naval War, the only notable modification being the substitution for "due diligence" of the phrase "to employ the means at its disposal." Article 8 of that convention reads:

A neutral government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a power with which that government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war. 15

This convention has been adhered to by the United States and has been signed and ratified by all the great Powers, except Great Britain and Italy, which have signed but not ratified it.

It will be observed that the question of intent as modified in the first rule of the Treaty of Washington has been carried into the Hague Convention, but the determination of this question, which is a matter of evidence, would not seem to be nearly so difficult now as it formerly was. "Under the new rule it is no longer a question of the intent of the person arming and equipping the vessel, but of the intent of those for whom the vessel is being so armed and equipped. In other words, the probable destination or use of the vessel is made the test as to whether it should be permitted to leave port, irrespective of the intent of the ship-builder or temporary owner. The old distinction between the animus vendendi and the animus belligerandi is thus done away with." 16 The radical and distinctive changes which have been made in the character and construction of warships in recent years should make the securing of evidence of intent a simple matter compared to what it was when the statute was drawn. At that time vessels of war were not easily distinguishable from merchant vessels, except for their armament, which might even be portable, and mere evidence of construction and build offered little indication as to the purpose for which the vessel was to be

14 Page 639.

15 Scott, The Hague Peace Conferences of 1899 and 1907, Vol. 2, p. 511.

16 Fenwick, The Neutrality Laws of the United States, p. 119.

used. Now, however, warships constitute a distinct type and their build is easily distinguishable from vessels intended for commerce. In view of the changed conditions, Hall thinks that the doctrine should be founded upon the character of the vessel itself and not upon the question of intent. "Experts are perfectly able," he says, "to distinguish vessels built primarily for warlike use; there would therefore be little practical difficulty in preventing their exit from neutral ports, and there is no reason for relieving a neutral government from a duty which it can easily perform." 17

Furthermore, owing to their enormous cost, it is hardly probable that a private individual or firm would undertake bona fide, upon his or its initiative, to construct a war vessel of any design and take the chance of selling it in the market, and thus bring the transaction within legitimate dealing in contraband. The business of building modern warships seems to be confined to the construction of ships under government contract and often as the result of competitive bidding. Such a contract from a belligerent country would seem to be conclusive evidence of an intent to construct the ship for hostile purposes. Oppenheim 18 thus states the proposition:

If a subject of a neutral builds armed ships to order of a belligerent, he prepares the means of naval operations, since the ships on sailing outside the territorial waters of the neutral and taking in a crew and ammunition can at once commit hostilities. Thus, through carrying out the order of the belligerent, the neutral territory concerned has been made the base of naval operations. And as the duty of impartiality includes the obligation of the neutral to prevent either belligerent from making neutral territory the base of military or naval operations, a neutral violates his neutrality by not preventing his subjects from carrying out an order of a belligerent for the building and fitting out of men-of-war.

The application of the foregoing remarks to submarines supplied under the circumstances referred to in the beginning of this comment remains to be considered. It will be observed that the American Neutrality Act, the rule of the Treaty of Washington, and the Hague Convention apply to vessels. It will also be noticed that the terms "vessel" and "ship" are used interchangeably.19 There does not seem to be any room for doubt

17 International Law, 4th ed., p. 640.

18 International Law, 2d ed., Vol. 2, p. 405.

19 See quotations from international law writers in this comment, the Declaration of London, and the official lists of contraband issued by the Governments. See also Swan v. United States, 19 Court of Claims, 51, 62, holding that within the meaning of the Prize Act of 1864 the terms "vessel" and "ship" are synonymous.

that a submarine completed and launched is a vessel within the meaning of the statute and conventions. In the official definition of the words used in the laws of the United States, it is provided that "the word 'vessel' includes every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water" (R. S., Sec. 3), and Section 30 of the British Foreign Enlistment Act of 1870, which corresponds to the Neutrality Act of the United States, contains the following definition: "Ship' shall include any description of boat, vessel, floating battery, or floating craft; also any description of boat, vessel, or other craft, or battery, made to move either on the surface of or under water, or sometimes on the surface of and sometimes under water." 20 In the case of United States v. Steever,2 21 it was held that a torpedo steam launch attached to a division of a naval squadron is a ship.

In the statutory and judicial definitions of the term "vessel" or "ship," the means of propulsion are considered immaterial, so that it would make no difference if the submarine leaves American jurisdiction under its own power or in tow.

It seems unnecessary to discuss the peculiar efficiency of submarines as engines of war. All of these vessels of a design which may be practicably operated are used solely as vessels of war, and their effectiveness for such use has been strikingly demonstrated within the last few months in the North Sea and adjacent waters.

Precedent and authority are lacking for determining whether a submarine or other small sea-going craft would be regarded as a vessel if it were carried in completed form as cargo on board a merchant ship. The Supreme Court of the United States has decided in the case of Tucker v. Alexandroff 22 that a ship does not become such in a legal sense until it is launched. "A ship is born when she is launched," said the court, "and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron-an ordinary piece of personal property-as distinctly a land structure as a house, and subject only to mechanics' liens created by state law and enforcible in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction." It is not believed, however, that this

20 British and Foreign State Papers, Vol. 60, 278, 289.

21 113 U. S. 747.

22 183 U. S. 424, at 438.

decision could be appealed in order to justify an attempt to evade the neutral obligations of the United States by taking from its stocks a completed submarine, fit to take the water, and merely placing it upon another vessel instead of launching her within American jurisdiction in the element which it is ultimately intended to navigate. A complete and flagrant evasion of the statute might be accomplished in this way by launching the submarine beyond the three-mile limit from the deck of the merchant vessel upon which it is carried as cargo. The comprehensive definition of a vessel in the Revised Statutes of the United States, above quoted, which includes water craft not only used, but capable of being used, as a means of transportation on water, would seem to include for the purpose of the neutrality laws a vessel fit to take the water, although not actually launched. The British definition of a ship, also above quoted, which includes any craft made to move on or under water or both, would also seem to cover such a case.

Finally, as to the supplying of submarines in parts. Unlike the British Foreign Enlistment Act, which makes illegal the building, 23 agreement to build, equipment, or dispatching of a ship intended for use, or which there is reasonable ground to believe will be used in the prohibited service, the American neutrality statute, the rule of the Treaty of Washington, and the Hague Convention appear to apply only to the fitting out and arming of a vessel, and it is not seen how parts of a vessel can by any interpretation be regarded as a ship or vessel upon which the statute or conventions may operate. Thus, in a case arising in Oregon in 1884, the court, in construing a State law which required the transfer of a vessel to be in writing, defined a vessel as any structure made to float on the water, for the purpose of commerce or war, and held that the term did not apply to an incomplete portion thereof requiring the construction of other parts; 24 and in a criminal case in Massachusetts 25 it was held that a boat in an unfinished state and wholly unfit for the carriage of men or goods on water is not a vessel. As has been pointed out, the reason underlying the development of the special rule with respect to armed ships, which abridges the common law privileges of neutrals to engage in contraband, is that an armed vessel is a completed means of attacking an enemy or preying upon his commerce,

23 This word is interpreted by the statute (Sec. 30) to include any act towards or incidental to the construction of a ship.

24 Yarnberg v. Watson (1884), 4 Pac. 296.

25 Commonwealth v. Francis, Thach. Crim. Cas. 240.

and the issuance of such an effective unit of naval warfare from neutral ports lays the neutral government open to the charge of allowing its territory to be made a base of naval operations. This reason obviously does not exist in the case of parts of a war vessel, which are incapable of use in hostile operations until assembled and given the character of a vessel. The award in the Alabama case and the decisions in United States v. Quincy (6 Peters, 445), which held that it is not necessary that the vessel should be armed or in condition to commit hostilities on leaving the United States to constitute a violation of the statute; the City of Mexico (28 Fed. Rep. 148), that it is not necessary that the vessel shall have been armed or manned before leaving the United States if the intention existed to arm and man her afterward; United States v. Laurada (85 Fed. Rep. 760), that it is not necessary that the furnishing, fitting out or arming should be completed within the limits of the United States; and the statement of Secretary Evarts in 1878 that a vessel constructed in a United States port for a hostile attack on a friendly sovereign will be arrested under our neutrality laws, even though she is not yet complete and the intention is to send her to a foreign port for completion,26 all refer to the departure of a vessel, and, in view of what has been above stated as to the legal interpretation of that term, they would not seem to cover a vessel shipped in parts and incapable when leaving the United States of taking the sea, although the parts may be so constructed as to show that they are eventually intended for warlike purposes and notwithstanding any intention on the part of the builder that they should be assembled within another jurisdiction and made susceptible of hostile use.

25 Moore, Digest, Vol. VII, pp. 896, 897, 905. See to the same effect the following statement of Dana in his notes to Wheaton's Elements of International Law (8th ed., 1866, p. 563): "No cases have arisen as to the combination of materials which, separated, cannot do acts of hostility, but, united, constitute a hostile instrumentality; for the intent covers all cases, and furnishes the test. It must be immaterial where the combination is to take place, whether here or elsewhere, if the acts done in our territory-whether acts of building, fitting, arming, or of procuring materials for these acts-be done as part of a plan by which a vessel is to be sent out with intent that she shall be employed to cruise."

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