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Published online by Cambridge University Press: 12 April 2017
The above is the title of an article by. Mr. E. G. Trimble in the January (1930) issue of this Journal, which contains a rather severe indictment of the Allied Powers, and particularly of Great Britain, for having violated during the World War various well-settled rules of international law regarding the conduct of maritime warfare. I do not deny at all that there were violations of certain rules and practices which had come to be generally, if not universally, recognized as a part of the customary law of nations—violations not only by the Allied Powers, but on an even larger scale by their opponents, which latter, however, the author passes over in silence. But, in my opinion, his charges in some cases are not well founded either upon principles of international law, reason or the logic of the actual conditions under which the rules had to be applied. In presenting here a different view of the case, my object is not so much to defend the Allied Powers against the charges contained in Mr. Trimble's indictment as to reaffirm and maintain views which I expressed during the war regarding certain rights of belligerents in naval warfare, especially under the peculiar conditions which prevailed during that war—rights the exercise of which I believe was justified in principle by those conditions, whatever may have been the opinion of statesmen and prize judges a century ago, and which would have been claimed and exercised by Germany had the geographical situation as between her and Great Britain been reversed.
1 The Louisiana, V Lloyd's Prize Cases, 248.
2 The Louisiana, ibid.; and the Kim, III Lloyd's Cases, 167.
3 Compare Vandenbosch, Neutrality of the Netherlands during the World War, p. 247.
4 The concessions and possible gains are listed by Bentwich, The Declaration of London, pp. 39-40.
5 See Col. House's letter of Oct. 3,1914, to Ambassador Page at London, relating his conversations with President Wilson and the British Ambassador (Hendrick, Life and Letters of W. H. Page, Vol. I, pp. 378-379; also Seymour, Intimate Papers of Colonel House, Vol. I, p. 307). See also Ambassador Page's protest to President Wilson, Oct. 21, 1914 (Life and Letters of W. H. Page, Vol. III, p. 181), and his threat to resign sent to Col. House on the following day (ibid., Vol. I, p. 380).
6 Prize Court Rules (1914) Order, XV(e).
7 The Franciska (1855), 2 Eng. P. C. 346, 394; the Berlin (1914), II Lloyd's Prize Cases,43; the Kim (No. 3), 10 ibid., 195; and the Davenger, I Entscheidungen der Oberprisen gerichts in Berlin, 232.
8 See the cases cited in my Prize Law during the World War, p. 118, n. 1, and Hyde, International Law, Vol. II, p. 814, n. 2.
9 P. 481. See also to the same effect Phillimore, International Law, Vol. III, pp. 721-722, who cites as authority for his statement Lord Stowell in the Romeo, 6 C. Rob. 357.
10 See the cases cited by Verzijl, Droit des Prises de la Grande Guerre, sec. 449. Mr.Trimble cites Cohen, The Declaration of London, pp. 105, 109, in support of his view that the admission of extrinsic evidence is not permissible. Cohen, in fact, following Renault's report on the Declaration of London states that the rule laid down in Articles 32 and 35 relative to the conclusiveness of the ship's papers, must not be “ too literally interpreted for that would make frauds easy.” “ To resume,” he concludes, “ the ship's papers are proof unless facts show their evidence to be false.” Compare also, to the same effect, Bentwich, op. ctt., p. 65.
11 See his article “ Neglected Fundamentals of Prize Law,” 30 Yale Law Journal, 38 ff.,and Baty and Morgan, War, Its Conduct and Legal Results, pp. 363 ff.
12 The Rosalie and Betty (1800), 2 C. Rob. 343.
13 See as to this, Roscoe, “ Prize Court Procedure,” Brit. Yr. Book of International Law, 1921-22, p. 93; Sir Erie Richards, The British Prize Courts in the War, ibid., 1920-21, p. 24; also Roscoe, History of the English Prize Court, p. 77; and Colombos, Treatise on the Law of Prize, p. 317.
14 This Journal , Spl. Supp., Vol. 9 (1915), p. 78.
15 International Law, Vol. III, p. 716.
16 2 C. Rob. 343.
17 Note to Wheaton, pp. 482-483.
18 The Amiable Isabella, 6 Wheat. 1.
19 The Jenny, 5 Wall. 183.
20 The Benito Estenger, 176 TJ. S. 568, and the Carlos F. Roses, 177 U. S. 655.
21 Op. cit., p. 776.
22 Droit Int. Pub., t. II, p. 584.
23 De la propriiU privie ennemie sous pavilion Ennemi, pp. 381, 386
24 Op. cit., p. 319.
25 26IV Lloyd's Cases, 1. See also his pronouncements to the same effect in the fintares (II, ibid., 219) and in the Roland (II, ibid., 253), and the decisions of the Judicial Committee in the case of the United States No. 4 and the Louisiana, where it was said that the burden is on the neutral trader to show that there was no reasonable suspicion justifying the seizure. See also to the same effect the observations of Lord Sterndale in the Prins der Nederlanden.
26 Ullmann, VSlkerrecht, p. 536; Wehberg, Handbuch des Volkerrechts, pp. 341 ff.; Verzijl, op. cit., p. 173; and De Boeck, op. cit., p. 391.
27 This Journal , Vol. 9 (1915), p. 444 at p. 448.
28 Droit Int., 4th French ed. by Geffcken, p. 388. Compare also, to the same effect,Colombos, op. cit., p. 197, and Scott, James Brown , this Journal , Vol. 8 (1914), p. 309 Google Scholar.
29 This Journal , Vol. 9 (1915), p. 446.
30 He had already in 1870 justified starvationof the enemy by siege as being as humane a measure for compelling him to surrender as bombardment was. Bismarck, The Man and the Statesman (English translation by Butler), Vol.II, p. 125.
31 Quoted by Pyke, The Law of Contraband, p. 99. As is well known also, Germany refused to compensate the owners of innocent neutral goods destroyed on enemy vessels sunk by her submarines. See the case of the Glitra, I Entscheidungen, 34, and the Indian Prince, ibid., 87 (translation of bothcases printed in this Journal , 1916 (Vol. 10), pp. 921, 930).
32 Scott, , “ The Declaration of London,” this Journal, Vol. 8 (1914), p. 316,Google Scholar and Pyke, ,The Law of Contraband, p. 172.Google Scholar
33 Briggs, The Doctrine of Continuous Voyage, pp. 99,121, and Fauchille, Droit Int. Pub., T. II, p. 909. Mr. Trimble himself (p. 84, n. 22) admits that the United States Supreme Court in the Civil War cases did not make the distinction, and that in the Pelerhof case the court indicated that if it had been necessary, it would have applied the doctrine to conditional contraband. Anderson, Mr. Chandler P. , in his criticism of the Kim decision, also admits that the doctrine had been applied to the carriage of conditional contraband in “ special circumstances.” “ The Chicago Packing House Cases,” this Journal , Vol. 11 (1917), p. 252 Google Scholar.
34 This Journal , Vol. 8 (1914), p. 315.
35 Compare as to the arbitrariness of these presumptions, Moore, International Law and Some Current Illusions, p. 66.
36 For example, Anderson, loc. cit., p. 257, and Briggs, op. cit., pp. 173, 186.
37 Compare Colombos, op. cit., p. 188, and the decision of the Judicial Committee in the Louisiana, supra.
38 The cases are cited by Verzijl, op. cit., pp. 798, ff.; Briggs, op. cit., pp. 173 ff. and 186 ff.; and Colombos, op. cit., p. 190.
39 Secretary Bryan in his letter to Senator Stone, referring to the decisions of the American courts in this connection, said: “ They have exercised the right to determine from the circumstances whether the ostensible was the real destination. They have held that the shipment of articles of contraband to a neutral port ‘ to order’ from which, as a matter of fact, cargoes had been transshipped to the enemy, is corroborative evidence that the cargo is really destined to the enemy instead of the neutral port of delivery. . . . The government cannot therefore protest against the application of rules which it has followed in the past unless they have not been practiced as heretofore.” This Journal , Vol. 9 (1915), p. 446.
40 See Baty's article, cited, 30 Yale Law Journal, especially pp. 35 ff. But Baty and Morgan (War, its Conduct and Legal Results, p. 380) tell us that Sir William Scott recognized “ the principle of bringing in vessels for examination in port where the papers are not fully descriptive of the cargo” (The Jonge Hermanus, 4 C. Rob. 95). “ Torse,” said Sir William,“ is so like hemp that it is necessary that such cargoes should be brought in for examination.”
41 1 Entscheidungen, 55.
42 Cited by Verzijl, op. cit., p. 1201; see also the cases cited in my Prize Law during the World War, p. 608, n. 3.
43 See notably the cases of the Federico, the Barcelo, and the Rioja.
44 Cases cited by Verzijl, p. 1171.
45 This Journal , Vol. 14 (1920), p. 363.
46 Vol. 23 (Oct. 1929), p. 742. It may be true, as stated by a board of American naval experts, who, during the late war, made a report on the subject (this Journal , Spl. Supp., Vol. 10 (1916), p. 76) that the facilities for boarding and inspecting modern ships are in fact greater than they were in former times, but no seaman will admit the correctness of their further statement that the cargo of a 20,000-ton steamer can be as easily searched as one of a thousand tons.
47 Compare also, to the same effect, the opinion of Wise, Jennings C. , this Journal , Vol. 16 (1922), p. 395 Google Scholar.
48 Op. tit., Vol. II, p. 494. Compare, to the same effect, Vandenbosch, op. cit., p. 254.
49 See the list and the cases so holding, in Verzijl, op. cit., p. 794.
50 Compare Hyde, op. dt., Vol. II, p. 648; Fauchille, op. cit., p. 994; and Colombos, op.cit., p. 240.
51 For example, Munroe Smith, 31 Political Science Quarterly, 506
52 Compare, in this connection, Percy, Maritime Trade in War, pp. 36-37.
53 The service of the American navy in this connection is described in detail by Admiral Sims in an article in the World's Workfor May, 1920 (Vol. XL, pp. 153 ff). See also Kenworthy and Young, Freedom of the Seas, p. 97, who state that the United States navy laid 57,000 mines as against 13,000 laid bythe British naval forces. They add that by thus “ restricting neutral merchant shipping to certain well-defined and narrow channels they made the control of the sea routes to Germany absolute. From that time forward, no neutral merchant ship, even if she escaped bunker coal, black lists, export restrictions and search in harbours could, withoutan Allied permit, hope to reach a port in a rationed neutral country, which final denialof all neutral rights at sea was another contribution of America.”
54 Op. cit, Vol. II, p. 422. In another note, however (ibid., p. 665 n. 3), Professor Hyde endeavorsto differentiate between the interference by the British with neutral trade under the Orders in Council, and the interference by the British and American fleets, in cooperatio,through the mining of the Orkney-Norway passage, the latter being justified on the ground of self-defense. But the attempted differentiation is not convincing. See the commentsof Professor A. P. Higgins, International Law and Relations, p. 229, n. 2.
55 As to this, see Guichard, The Naval Blockade, pp. 108 ff., and Parmalee, Blockade and Sea Power, Ch. 8.
56 Parmalee, op. cit., p. 120.
57 As to the details of this policy, see my International Law and the World War, Vol. II, pp. 346 ff.; Parmalee, op. cit., Ch. 7; and Guichard, op. cit., pp. 100 ff.
58 As to the effect of the embargo, see the statistics in Guichard, p. 127.
59 Twenty-five Years, Vol. II, p. 117.
60 Maritime Trade in War, p. 59. Compare the following from Kenworthy and Young (op. cit., p. 93): “ America threw herself into the gaps she had left open in the blockade and closed them with an embargo and other belligerent measures. The World War was won by American sea power associating itself with British sea power.”
61 Text in this Journal , Vol. 21 (1927), pp. 764 ff.
62 Borchard, this Jotjbnal, ibid., p. 765.
