Neutral Rights and Obligations in the Anglo-Boer War
by
Robert Granville Campbell
Part 3 out of 3
jeopardizing the property of American citizens in that the vessel seized
was "under contract to deliver to the persons named in the invoices the
merchandise therein specified, none of which is contraband of war."[13]
[Footnote 13: For. Rel., 1900, p. 530; Hopkins and Hopkins to Hay, Dec.
12, 1899.]
One portion of another shipment was on account of a Delagoa Bay firm,
the other on account of a London one. With reference to the goods
consigned to the latter firm the American shippers were unable to say
what their ultimate destination might be, but in regard to the shipment
to Delagoa Bay they were positive that the consignees were a firm doing
a large local business in Lorenzo Marques. To the best of their
knowledge it was a German firm whose members were not citizens either of
the Transvaal or of the Orange Free State. They showed that the goods
were sold on four months' time dating from November 3, and consequently
that their loss would fall upon the original shippers, who were citizens
of the United States. The fact was pointed out that additional
merchandise amounting to five thousand dollars had been purchased for
the Delagoa Bay firm, with a view to immediate shipment, but would have
to be held up and probably lost because of a situation which amounted to
a blockade declared by Great Britain over a neutral port, an act which
in the end would compel all firms in Lorenzo Marques to cease buying
American goods.[14]
[Footnote 14: For. Rel., 1900, pp. 530-533; Flint Eddy and Co. to
Hopkins and Hopkins, Dec. 9, 1899, and Hopkins and Hopkins to Adee, Dec.
15, 1899.]
It was alleged by the captors that the ship's papers were not in proper
form, and that besides the flour and other foodstuffs she carried a
consignment of lubricating oil for the Netherlands South African
Railway. This consignment was held to be enemy's property since it was
considered that the railway belonged to the Transvaal, the specific
charge against the ship being that of trading with the enemy. The fact
that a consignment of flour was billed to a Lorenzo Marques firm but
labelled "Z.A.R." created a conclusive presumption, it was thought, that
the flour was intended for the Transvaal, although its owners claimed
that the consignment was not destined for the belligerent Republic but
for local consumption at Lorenzo Marques.[15]
[Footnote 15: For. Rel., 1900, pp. 538-539, 561.]
Both the cargo consigned to the Transvaal and the vessel herself were
claimed as lawful prize. The cargo, it was contended, was unprotected
since it was enemy's property, and the vessel, by trading with the
enemy, had violated a regulation which rendered it confiscable. Against
this it was urged that the consignees were hostile only by reason of
domicile, and that neither the owners of the ship nor the captain had
any intention to trade with the enemy. So far as intention was
concerned, it was shown that the captain had intended to pass a bond at
Algoa Bay, one of the ports of call, undertaking not to deliver the
goods at Delagoa Bay without the permission of the proper authorities.
The three judges of the Supreme Court of Cape Colony sitting as a prize
court came to different conclusions. The Chief Justice held that the
cargo should be condemned but not the ship. One opinion was that neither
ship nor cargo should be condemned; the third that both ship and cargo
should be condemned. There were thus two justices to one for condemning
the cargo and two to one against the condemnation of the ship. The cargo
was consequently condemned and the ship released.[16]
[Footnote 16: Decision at Cape Town, March 13, 1900, reported in Cape
Times, March 14, 1900.]
Different views were also held by the judges with reference to the
condemnation of the goods aboard the _Mashona_. The Chief Justice held
that the intention of the captain to alter the destination of the goods
was sufficiently established to prevent their condemnation. The other
justices dissented on this point. They held that the goods should be
regarded in prize law as the property of residents of the Transvaal, and
that such ownership did not seem possible of denial. In their opinion
there was sufficient reason for condemning the goods since they were
enemy's property captured on the high sea in a non-neutral ship.
This view obviously implied that an enemy character was impressed upon
persons resident in the Transvaal not by nationality but merely by
domicile. England's proclamation had in fact forbidden trade with the
enemy or with those resident upon enemy territory. In other words, those
residing in hostile territory were regarded as enemies when there was a
question of trading with the enemy. The same principle was applied when
there was a question of property in goods which were on their way to the
enemy's territory, a view which would seem reasonable since even the _de
facto_ Government of a hostile region could possess itself of goods
which had been allowed to enter its territory.
With regard to the question of condemning the ship the Chief Justice
held that there was not sufficient evidence to warrant confiscation. He
cited the case of the _Hook_,[17] which was condemned in 1801, but held
that the case of the _Mashona_ was not on all fours with the conditions
of that decision. He took the view that the case of the _Mashona_ was
more nearly analogous to the cases of the _Minna_ and the
_Mercurius_,[18] and consequently declared for the restoration of the
ship.
[Footnote 17: I.C. Rob., p. 200; Moore, Digest of Int. Law, Vol. VII, p.
534.]
[Footnote 18: The _Minna_ (Edwards 55, n.; Roscoe, English Prize Cases
(1905), p. 17, note) was restored by Sir William Scott in 1807 on the
ground that her voyage was _contingent_ not _continuous_. The ship had
been captured on a voyage from Bordeaux, destined ultimately to Bremen,
but with orders to touch at a British port and to resume her voyage if
permitted. The _Mercurius_ (Edwards 53; Roscoe English Prize Cases
(1905), p. 15) was restored by the same judge in 1808 on the ground of
an "_honest intention_" to procure a license before trading with the
enemy.]
One justice concurred on the main point at issue, namely, that there
appeared to be "sufficient proof in the present case of an honest
intention to pass a bond at Algoa Bay not to take the goods to Delagoa
Bay except with the permission of the proper authorities.... The
presumption of an intention of trading with the enemy, arising from the
fact that the ship was carrying enemy's goods consigned to Delagoa Bay
and destined for the enemy's country, is entirely rebutted by the
conduct of all the parties interested in the ship. The claim for the
restitution of the ship must consequently be allowed."[19]
[Footnote 19: Decision at Cape Town, March 13, 1900, Chief Justice, Mr.
Justice Buchanan concurring.]
One justice dissented from this opinion and argued that "as soon as war
broke out, it became the duty of the master to decline to convey any
goods which, from the papers in his possession, appeared to be the
property of enemy consignees." It was contended by this justice that
"his contract of affreightment could not be fulfilled" in any event, and
he should have been aware of this fact. Further, it was urged that there
was not convincing evidence to "establish that there was no intention on
the part of the master of the ship to trade with the enemy, except with
the permission of the proper authorities. In the circumstances, such a
defense must be established by very clear proof; ... although there is
no reason whatever to impute any disloyal intention, or _mala fides_, ...
the proof of non-liability on this ground has not been made out." On
the contrary, it was insisted, in this dissent from the leading opinion,
"there seems to be an absence of proof that it was not the intention ...
to deliver these goods to the consignees unless prevented from doing
so by some competent authority; and this cannot be regarded as
equivalent to proof that [the master] intended to apply for and obtain a
license before engaging in intercourse which, in the absence of the
license, was of an unlawful character. From the moment this ship left
New York harbour ... she was liable _stricto jure_ ... to seizure
and condemnation; as she was still without a license when seized,
_stricto jure_ the liability remains."[20]
[Footnote 20: Decision, March 13, 1900; Mr. Justice Lawrence
dissenting.]
The fate, however, of the ship itself was of interest to third parties
only in so far as its disposition involved the rights of neutrals whose
goods were on board. Great Britain's action in seizing her own ships, or
ships chartered by her own subjects, had the effect of placing a virtual
blockade upon a neutral port, for few but English ships carried for the
Transvaal or Orange Free State, a fact which bore with especial hardship
upon American shippers. The "detention" of all Delagoa Bay cargoes in
British bottoms, provided a few articles were found consigned to the
Transvaal, was a practice which was indignantly protested against by all
neutral shippers upon English vessels. The injustice which this practice
worked was forcefully brought home to the United States by an apparent
disregard of the property rights of innocent neutrals in the seizure of
two other ships at about the same time as that of the _Mashona_.
THE BEATRICE.--This ship, also clearing from New York, was reported in
December, 1899, to have been compelled by the English naval authorities
to discharge all of her Delagoa Bay cargo into lighters at East London,
some six hundred miles distant from Lorenzo Marques. It was pointed out
by the New York shippers in their protest addressed to Secretary Hay at
Washington that, according to the terms of the American and African bill
of lading, the steamship line was thus relieved of any further
responsibility, since the goods were at the risk and expense of the
consignees after leaving the ship's side.[21]
[Footnote 21: For. Rel., 1900, p. 533, Norton and Son to Geldart, Dec.
14, 1899.]
The shipments had been made, many of them on regular monthly orders, to
Portuguese and other firms in Lorenzo Marques. The policy of insurance
did not cover war risks, and the company holding the insurance declared
that it was not responsible for any accident which might occur while the
merchandise was lying in lighters or hulks at a port of discharge which
had been forced upon the ship by the English authorities.[22] That
portion of the cargo of the _Beatrice_ which was shipped from New York
consisted of large consignments of flour, canned goods, and other
foodstuffs, but included also a consignment of lubricating oil as well
as a miscellaneous assortment of light hardware, but none of the
articles shipped were of a contraband character in the usual meaning of
that term. Part of the flour was branded Goldfields and part was
labelled Johannesburg, although the whole consignment was marked Delagoa
Bay. The American shippers averred that although they regularly sold
flour to merchants engaged in trade in various parts of South Africa
they "had never sold flour with direct or ulterior destination to the
South African Republic, by re-sale or otherwise." They made affidavit
that all of their sales had been made for the ordinary uses of life, and
that "since the war had broken out they had made no sales of flour to
merchants or others in the South African Republic."[23]
[Footnote 22: According to the terms of sale, on time, the shippers
pointed out the obvious fact that unless the goods were delivered, the
Delagoa Bay consignees as well as others would refuse to honor the
drafts drawn upon them for the amount of the purchase. Consequently the
loss would fall upon the American shippers should Great Britain persist
in turning aside innocent consignments from their neutral port of
destination.]
[Footnote 23: For. Rel., 1900, p. 565; Choate to Salisbury, Jan. 13,
1900.]
The reason assigned in the official report of the English authorities
for their action in regard to the _Beatrice_ was that she "contained
large quantities of goods, principally flour, destined for the South
African Republic, which the customs authorities at East London required
should be landed at that port." Since the cargo was stowed in such a
manner as to make it impossible to land goods destined for the Republic
without also discharging goods intended for Portuguese East Africa, it
was alleged that the master and agents of the ship preferred to land the
whole of the cargo at East London, where it was stowed by the customs.
But it was admitted that the removal of large quantities of the goods so
landed had been permitted from time to time "for the purposes of local
and _bona fide_ Portuguese consumption." The consignment to the
Netherlands South African Railway was held to be enemy's property since
it was considered that the railway was owned by the Republic. The
specific reason assigned for the arrest of the steamer was "that the
_Beatrice_ being a British ship, was by carrying goods destined for the
enemy's territory, illegally engaged in trade with the enemy in
contravention of Her Majesty's proclamation of December 27, 1899."[24]
The vessel sailed for Calcutta in ballast on December 11, 1900.
[Footnote 24: For. Rel., 1900, p. 574; Salisbury per Bertie to Choate,
Jan. 26, 1900. This proclamation was not retroactive in the sense that
it established a new prohibition, but was merely explanatory of an
accepted restriction upon trade with the enemy by British subjects.
Supra, p. 116.]
THE SABINE.--On February 22 the last of the ships clearing from New York
for South African ports was reported to have been seized at Port
Elizabeth, seven hundred and fifty miles from Lorenzo Marques. The
_Sabine_ was also a British ship with Mossel Bay, Algoa Bay, and Durban
among her ports of call, and carried shipments aggregating thirty to
forty thousand dollars in value made by New York merchants to these
ports, all of which are in British territory. But in addition to the
allegation which had been brought against the _Maria_, _Mashona_, and
_Beatrice_, of trading with the enemy, it was suspected that the
_Sabine_ was carrying actual contraband of war. The latter suspicion,
however, was not pressed, although the authorities who stopped and
examined the ship upon the specific charge of violating a municipal law
asserted that the _Sabine's_ "papers were not in proper form and that
goods were found on board which, though shipped to ports this side were
marked to persons residing in Boer territory." The case was viewed by
the English Government "as a very suspicious one under municipal law,
but, as the evidence was not very complete, they gave the vessel the
benefit of the doubt."[25] After a short detention both ship and cargo
were released.
[Footnote 25: For. Rel., 1900, pp. 594-595.]
The news of the reported seizures aroused considerable popular feeling
in the United States. In the Senate a resolution was introduced which,
as finally amended, read: "Whereas it is alleged that property of
citizens of the United States not contraband of war has been lately
seized by the military authorities of Great Britain in and near Delagoa
Bay, South Africa, without good reason for the same, and contrary to the
accepted principles of international law; and, Whereas it is alleged
that property of citizens of the United States is now unjustly detained
by the military authorities of Great Britain, in disregard of the rights
of the owners of the same; therefore, Resolved by the Senate of the
United States, That the President is hereby requested to send to the
Senate, if not, in his opinion incompatible with the public interests,
all information in possession of the State Department relating to the
said alleged seizure and detention, and also to inform the Senate what
steps have been taken in requesting the restoration of property taken
and detained as aforesaid."[26]
[Footnote 26: 56 Cong., 1 Sess., Jan. 17, 1900, Record, Vol. 33, Pt. 1,
pp. 895, 900.]
The final clause of the resolution as at first introduced was stricken
out after a discussion as to whether the Secretary of State should be
"_directed_" or the President be "_requested_" to furnish the desired
information. It was realized that the language of the expunged clause,
"and whether or not the Department has informed the proper British
authorities that, if said detention is persisted in, such act will be
considered as without warrant and offensive to the Government and people
of the United States," was neither diplomatic in its tone nor warranted
by the circumstances. Amicable negotiations were still in progress, and
those negotiations were concerned with a discussion of the very question
which would thus have been decided in the affirmative by the Senate,
namely, that the seizures had been contrary to the principles of
international law. Consequently the resolution only declared that it was
"alleged" that Great Britain had departed from the strict principles of
international law, and it was not intimated that her persistence in such
acts would probably require a resort to more forcible measures than mere
protest on the part of the United States.
A motion had been made that the resolution be referred to the Committee
on Foreign Relations, where it was hoped by certain members of the
Senate that it would die a natural death, an end which would have been
deserved under the circumstances, since the event to which the
resolution referred was then in the course of diplomatic consideration
and nothing had indicated that the State Department would not be able to
secure protection for the interests of all citizens of the United States
as neutrals during a recognized belligerent contest. An unsettled
question of international law was at issue between Great Britain and the
United States, and was being dealt with as fast as official information
reached the British Foreign Office from the scene of the occurrences
which were alleged to have been in contravention of established
principles. Flour or any other foodstuff might or might not be
contraband of war according to the particular circumstances of the case.
As a general rule products like flour shipped from a neutral State are
not contraband, but it is always a question of fact whether the
immediate destination of such flour is for hostile purposes, namely, the
sustenance of a belligerent army. If flour or foodstuffs generally were
so destined they became contraband of war for the particular case.
Not less than twenty thousand barrels of flour had been shipped by
citizens of the United States upon the three steamers, _Maria_,
_Mashona_, and _Beatrice_, and the proposer of the resolution insisted
that the Senate was entitled to know in what manner the rights of the
United States were being asserted in view of the obvious hardship which
_bona fide_ neutral shippers had thus suffered. He urged that the
seizure of property of citizens of the United States by one of the
belligerents was "a thing which profoundly affects the American people;
it affects every corn grower, every wheat farmer, the owner of the
cattle upon a thousand hills, the mill man, the middleman, everybody who
is interested in producing and exporting the products of the farm and
the field is interested in this question and is entitled to know what
has been done in this case."[27]
[Footnote 27: Hale of Maine, 56 Cong., 1 Sess., Rec., Vol. 33, Pt 1, p.
896.]
It is to be hoped that the Senator's constituents read this speech in
the next morning's papers, for otherwise it must go down in history as a
burst of eloquence wasted upon unhearing ears. Had he been able to pass
his resolution so worded as to "_direct_" the Secretary of State to
throw open the entire files of the Department's foreign correspondence
for the Senate's inspection, instead of merely "_requesting_" the
President to furnish such information as the Senate desired "if not, in
his opinion, incompatible with the public interest," the result would
have been practically the same. In either event the President would have
controlled the situation, since he can not be compelled to furnish
information to the Senate when he considers it incompatible with the
public interest to do so. The only power possible to be exercised by the
Senate over the Executive in such a case is that of impeachment. And
should impeachment be possible or advisable the process could be carried
through as well with the words, "if not, in his opinion, incompatible
with the public interest," _out_ of a resolution as with those words
_in_ such a formal request of the Senate.[28]
[Footnote 28: Teller of Colorado, 56 Cong., 1 Sess., Record, Vol. 33,
Pt. 1, p. 898.]
As a rule it is unwise for the Senate to interfere while negotiations
are pending between the Executive Department and foreign Governments
over any question which is at issue. Should a resolution "_requesting_"
information upon any subject be deemed necessary, it should obviously be
addressed to the President and, merely for the sake of courtesy, with
the usual _caveat_. It should not be "directed" to the Secretary of
State, for that official stands in a different relation to the
legislative department from that of the secretaries of any of the other
departments. The Secretary of State is not required by law to report to
Congress as are all the other Cabinet officers. He has been exempted
from that requirement for the reason that his duties are mainly
diplomatic. Negotiations carried on with foreign Governments upon
matters of a delicate character might involve serious embarrassments if
during their pendency the successive steps were reported to
Congress.[29] The power of the President in consultation with the
Secretary of State to deal with foreign Governments at least up to the
last moment and final consent of the Senate has made it possible for the
United States to preserve a fairly uniform foreign policy. For despite
the repeated changes of administration and of domestic policies the
general foreign policy has been closely modeled upon the expedient
course of absolute neutrality laid down by Washington. Were it a
practical requirement of the Constitution that all foreign
correspondence upon any important question should be at once laid before
the Senate, it is reasonable to suppose that few treaties or important
conventions would finally be ratified. In a question of international
law such as that under discussion between the Governments of Great
Britain and the United States, it would have been extremely unwise
during the negotiations for the Senate to interfere in any way with the
regular course of diplomatic intercourse between the two Governments.
[Footnote 29: Platt of Connecticut, 56 Cong., 1 Sess., Record, Vol. 33,
Pt 1, p. 899.]
In the end the Hale Resolution was agreed to, but nothing came of it,
for the State Department found the English Government not unwilling to
make an equitable settlement for the losses which citizens of the United
States had incurred as a result of the seizures of British ships
carrying American goods from New York to Delagoa Bay.
THE LEGALITY OF THE SEIZURES.
While the fruitless discussion had been in progress in the Senate
Secretary Hay had been dealing with the question in such a manner as to
safeguard all American interests, but at the same time with a full
consideration of the necessity for protesting against any undue
extension of belligerent rights. Immediately following the seizure of
the British ships clearing from New York with American goods on board he
had requested a prompt explanation. In his instructions to Ambassador
Choate he said: "You will bring the matter to the attention of the
British Government and inquire as to the circumstances and legality of
the seizures."[30] And later, Mr. Choate was further instructed to
ascertain "the grounds in law and fact" upon which the interference with
apparently innocent commerce between neutral ports was made, and to
demand "prompt restitution of the goods to the American owners if the
vessels were seized on account of a violation of the laws of Great
Britain, as for trading with the enemy; but if the seizure was on
account of the flour ... the United States Government can not
recognize its validity under any belligerent right of capture of
provisions and other goods shipped by American citizens to a neutral
port."[31] Mr. Hay pointed out the fact that the American shippers had
produced evidence intended to show that the goods were not contraband in
character, and should this prove to be true prompt action was to be
requested on the part of Great Britain in order to minimize as far as
possible the damage to neutral goods.
[Footnote 30: For. Rel., 1900, p. 534; Hay to Choate, Dec. 21, 1900.]
[Footnote 31: For. Rel., 1900, pp. 539-540; Hay to Choate, Jan. 2,
1900.]
The position taken by the English Government was indicated on January 10
in a note handed to Mr. Choate: "Our view is that foodstuffs with a
hostile destination can be considered contraband of war only if they are
supplies for the enemy's forces. It is not sufficient that they are
capable of being so used. It must be shown that this was in fact their
destination at the time of their seizure."[32] Lord Salisbury verbally
added that the British Government did not claim that any of the American
goods were actual contraband, but that the ships had been seized on a
charge of trading with the enemy, and it was intimated also that "an
ultimate destination to the citizens of the Transvaal, even of goods
consigned to British ports on the way thither, might, if the
transportation were viewed as one continuous voyage, be held to
constitute in a British vessel such a trading with the enemy as to bring
the vessel within the provisions of the municipal law."[33] He asserted
that the offense was cognizable by a prize court alone, but admitted
that "if the owners of the cargoes, being neutrals, claim that they are
innocent, the cargoes should not be condemned with the ship but should
be delivered over to them."[34] He suggested that the ordinary course
would be that the owners should claim the cargoes in the prize court,
where the cases would be considered and properly dealt with on their
merits.[35] The owners would be requested, he said, to prove that they
were the _bona fide_ owners by submitting bills of lading and invoices
to the court. It was intimated that the American flour which had been
removed from the ships was not detained in any way but was perfectly
open to the owners to make whatever arrangements they pleased for its
immediate removal. If they considered themselves aggrieved by the action
of the English authorities in causing the flour to be landed it was of
course open to them to take such proceedings against the persons
concerned as they were advised might be appropriate under the
circumstances.[36]
[Footnote 32: For. Rel., 1900, p. 549; Salisbury per Choate to Hay.]
[Footnote 33: For. Rel., 1900, p. 609; Hay to White, March 20, 1900,
citing Choate's despatch of April 26, 1900.]
[Footnote 34: For. Rel., 1900, p. 549.]
[Footnote 35: See Story, Manual of Naval Prize Law (1854), pp. 46-71,
where the practice in such cases before prize courts is stated; in other
portions of the work the claims made by innocent or interested parties
are considered.]
[Footnote 36: For. Rel., 1900, p. 549, Salisbury, speaking with special
reference to the _Mashona_ and _Maria;_ Choate to Hay, Jan. 10, 1899.]
Mr. Choate at once retorted that in such a case the United States would
very probably send the bill to the British Government. The fact was
pointed out that the operation of the English law did not lessen the
obligation incumbent upon Great Britain to restore the goods to their
_bona fide_ neutral owners or to the neutral consignees. Although the
permission had been given to the owners to come and take their goods at
the ports of detention, short of the original port of destination, this
permission could not be considered as discharging the obligation to
restore the goods. The representative of the United States insisted that
nothing short of delivery at their port of consignment would fulfill the
English obligation in a commercial sense such as to give the goods the
value intended. It was clearly shown that under the application of the
English municipal law the goods in question became as inaccessible to
their owners for all the purposes of their commercial adventure "as if
they had been landed on a rock in mid-ocean."[37] In his criticism of
the English position, Mr. Choate said: "The discharge from the vessel
and landing short of the port of destination and failure to deliver at
that port, constitute wrongful acts as against all owners of innocent
cargoes."[38] And he pointed out the inconsistency of the position since
it was not claimed that any but British subjects could be guilty of any
violation of the English prohibition against trading with the enemy. He
was accordingly instructed to insist that the obligation rested upon the
British Government to indemnify the neutral owners and make good to them
all damages and loss sustained by the treatment to which they had been
subjected.
[Footnote 37: For. Rel., 1900, p. 585; Choate to Salisbury, Feb. 6,
1900.]
[Footnote 38: For. Rel., 1900, p. 586.]
The United States was ready to admit that there might have been cause
for the seizure and detention for the purpose of examination before a
prize court upon the suspicion of trading with the enemy. But the
decision of the judges seemed to indicate that such a suspicion was not
founded upon facts which could be produced before the courts. The
vessels were released upon the ground that they had not in fact traded
with the enemy nor intended to do so except with the express or implied
permission of the British Government. In view of the causes put forward
for the seizures and of the reasons stated by the authorities for the
subsequent release of the ships it would seem that the cargoes, "except
in so far as contraband might have been involved would have the same
status as though found aboard British ships trading between neutral
ports where there was no question of a belligerent in the neighborhood
of the port of detention."[39] The prize court _did_ decide that there
was no question of contraband involved, and the American representative
pointed out the fact that the seizures not having been made or justified
on account of contraband goods, the only effect of the British decision
would seem to be either that Great Britain possessed the right to seize
neutral and non-contraband goods aboard British vessels trading between
neutral ports, or else the American owners of such cargoes would be
entitled to full compensation for their damages.
[Footnote 39: For. Rel., 1900, p. 611; Hay to Choate, May 24, 1900.]
Lord Salisbury in his reply attempted to correct what he considered the
misapprehension which underlay the statement of alternatives, namely,
that neutral and non-contraband goods were not free in British bottoms
between neutral ports, or else full compensation must be made to the
owners for their seizure. It was asserted that the British Government
had neither exercised nor claimed any such right as that which was
indicated, nor had they _seized_ neutral and non-contraband goods. He
declared that the goods were not seized. Their passage to Lorenzo
Marques was merely interrupted, and by this interruption they were
detained only to the extent that their being on board the ship which had
been arrested made their detention unavoidable. It was further alleged
that had the prize court held that the arrest of the ships was not
justified they would "_presumably_ have awarded damages against the
captors of the ships and the damages would _presumably_ have been so
calculated as to enable the ship to meet the claims of merchants arising
out of the unjustified interruption of the voyage."[40] The fact was
alleged that the court had not so held and that it appeared that the
ships should, therefore, bear the consequences of the arrest and meet
the merchants' claims. By the law of the flag under which the ships
sailed they could not carry goods destined for the enemy. If they
shipped such goods they should bear the consequences. Among those
consequences was the delaying of the goods until such time as they could
be placed on a ship that could legally carry them on to their original
port of destination.
[Footnote 40: For. Rel., 1900, p. 618; Salisbury to Choate, July 20,
1900.]
The result of such a decision is apparent. The American goods, in the
words of Mr. Hay, were "as inaccessible to their owners as if they had
been landed on a rock in mid-ocean," since no steamers not belonging to
British lines plied between the ports of Cape Colony and Delagoa Bay.
But there seemed little chance of securing a revision of Great Britain's
decision, which was based upon the principle that she might deal with
English subjects and with English ships in accordance with the law of
the flag under which those ships sailed. Mr. Hay, therefore, only
endeavored to secure every possible guarantee for American interests
involved, but incidentally emphasized the view that, although England
might use her own as she saw fit she must show just ground for all
injuries suffered by innocent American shippers. Instructions were sent
to Mr. Hollis, the United States consul at Lorenzo Marques, that he
should investigate the seizures and make every effort to protect the
property of American citizens, and later he was urged to ascertain the
facts concerning the detention of American flour on board the ships
arrested by Great Britain.[41]
[Footnote 41: For. Rel, 1900, p. 538; Hay to Hollis, Dec. 28, 1899.]
It soon developed that freight had been prepaid and that the drafts
drawn against the various shipments from New York would be protested for
non-payment by the parties on whom they had been drawn at Delagoa
Bay.[42] Consequently the title to the property in such cases was vested
in the American shippers, and they urged their Government to see that
their interests were protected against what they considered an undue
extension of belligerent rights against ordinary neutral trade from one
neutral port to another. Mr. Hay pointed out the obvious injustice of
the goods being in the prize courts with the vessel, even granting that
the ship as a common carrier of international commerce had violated the
law of its flag, on the remote possibility of having carried for the
enemy. He insisted that, although the shippers might be required to
furnish invoices and bills of lading, they should not be sent to the
prize court for their property. Lord Salisbury, however, contended that
the prize court had complete control of the situation, and that any
neutral shippers who were innocent could secure the release of their
goods only by applying to the court with the proper evidence of
ownership. The injustice of the vigorous enforcement of this rule of
prize law was obvious, and the demand was made that the goods should be
released by order of the proper British law officer and not be left to
the mercy of the prize court.[43] It was urged that since the ships had
been seized because of a violation of the municipal law of Great
Britain, for trading with the enemy, and since the seizure and detention
of the flour and other goods was only incidental to the seizure of the
ships, the flour, to which no such offense could be imputed, could not
under the circumstances be admitted to be subject to capture because not
contraband of war. Upon these grounds prompt restitution to the American
owners was demanded.[44]
[Footnote 42: For. Rel, 1900, p. 540; Toomey to Hay, Jan. 3, 1900.]
[Footnote 43: For. Rel, 1900, p. 543; Choate to Hay, Jan. 5, 1900.]
[Footnote 44: For. Rel., 1900, p. 543; Choate to Salisbury, Jan. 4,
1900.]
The view of the Department was that nothing seemed to justify the
seizure of the American goods, for to all intents and purposes they were
_seized_ although it was considered by Great Britain that they had
merely been _detained_ as an incident of the seizure of the ships on
which they were carried. Since the flour was sold delivered at Delagoa
Bay it was therefore the property of the United States shippers until
the obligation of delivery was fulfilled irrespective of the drafts made
against it on Delagoa Bay. Upon the return of these drafts unpaid the
flour was left in a critical position even if released.[45]
[Footnote 45: For. Rel., 1900, p. 548; Toomey to Hay, Jan. 10, 1900.]
It was clearly shown that the flour had been sold in the regular course
of business as for a number of years past, shipments being made of so
many bags each month to their regular users who anticipated their
ordinary requirements. The consignees, it was urged by the American
shippers, were reputable merchants in Delagoa Bay, and the consignments
were not of an unusual character but were a part of the ordinary
commerce with the East coast.[46] It was admitted that certain of the
consignments had been to residents of Johannesburg, but it was at the
same time asserted that the consignees were legitimate flour merchants
who were not contractors for the Transvaal Government at the time the
purchases were made.[47]
[Footnote 46: For. Rel., 1900, p. 567; Choate to Salisbury, Jan. 15,
1900.]
[Footnote 47: For. Rel., 1890, p. 584. Affidavit of A.J. Toomey,
President of the Penn. Milling and Export Co., Jan. 23, 1900.]
The Pennsylvania Milling and Export Company suggested that possibly
their shipments had been confused with those of an English firm, Collier
and Sons, of Bristol. It was alleged to be a notorious fact that this
firm had made large shipments of flour to the Transvaal Government; that
Arthur May and Company were the agents of the firm in the Republic, and
that the Bristol firm had shipped on the same steamers on which American
goods were carried. A.J. Toomey, President of the Pennsylvania firm, in
alleging these facts pointed out that he mentioned only what was well
known in shipping circles and did so merely to establish the fact that
there had been no wrong intent with reference to his shipments. He urged
that the question of the justice of indemnification should be settled,
leaving the respective rights of consignors or consignees to the
proceeds to be settled afterward.[48]
[Footnote 48: For. Rel., 1900, p. 589; Toomey to Hay, Feb. 12, 1900.]
Mr. Choate, in carrying out instructions received from Washington,
insisted that where the ship was seized and taken into port on the
charge of trading with the enemy, and where the flour was not held as
contraband, and was not claimed to be contraband, and under the
circumstances could not be involved in the specific charge against the
ship, it was manifestly a great hardship for the owners of the flour to
be compelled to go into the prize court at a port short of the original
destination even for the purpose of proving their ownership, which he
insisted would involve costs and damages for the detention and possible
deterioration in value.[49] It was intimated that aside from the
pecuniary features of the situation it was of primary importance to
insist upon the principles involved, with a view to preventing an
extension of belligerent rights to the detriment of all neutral commerce
in time of war. Emphasis was therefore placed upon the point that
evidence must be shown that the goods were really for the supply of the
enemy's forces and that this was in fact their destination at the time
of their seizure. The fact was pointed out that otherwise the action of
the British authorities seemed to imply the right to exercise an embargo
on the sale and delivery of non-contraband goods in the ordinary course
of trade with the people of the Republics. It was intimated that this
was inconsistent with the view of contraband expressed by the English
Government, and wholly inadmissible from the point of view of the United
States.[50]
[Footnote 49: For. Rel., 1900, p. 566; Choate to Salisbury, Jan. 13,
1900.]
[Footnote 50: For. Rel., 1900, p. 578; Choate to Salisbury, Jan. 29,
1900.]
The argument was presented that the British Government had seized flour
shipped to buyers at Delagoa Bay and had prevented it from reaching that
point in time to meet a good market. Consequently, in view of the fact
that it was not sold for any purposes hostile to Great Britain, it was
urged that the latter should not be allowed to consider herself relieved
of any responsibility for indemnity or direct loss assumed by the
shippers, or for any indirect loss for which the shippers might have to
compensate the buyers on account of the diversion and detention. It was
the opinion of the United States that the mere release of the flour to
qualified owners did not meet the obligation in the case because the
owners could not possibly take the delivery of the flour owing to the
obstacles of war at the points where the goods lay. Even if they could
do so they would naturally suffer considerable loss by the condition of
the market and by any diminution in value that might have occurred to
the flour through climatic deterioration.
The American State Department, therefore, suggested as the only
equitable plan apparent under the circumstances that Great Britain buy
the flour and other innocent goods at their invoice price and pay over
the proceeds of the purchases to those persons who could prove a just
claim for its value. An additional sum was also asked as "reasonable
compensation" for loss of market and other losses that might have been
suffered by American interests.[51] In other words, the English
Government should use the flour, pay the costs and indemnify the owners
reasonably, since the latter were entirely innocent and had depended
upon the usual rights and immunities of neutral shippers in time of war.
The fact was pointed out that the situation was causing an uncertainty
and hesitancy in business circles which was detrimental to all American
interests. Although a number of the consignments were being delivered at
Delagoa Bay, presumably by English ships, it was alleged that the
seizures and the unforeseen attitude of Great Britain had compelled all
later shipments to go by way of Hamburg or Bordeaux when seeking the
ports of South Africa in the way of ordinary neutral commerce in order
to avoid using British bottoms as a means of transportation. Many of the
drafts had been returned unpaid and others were expected in due course,
and whether paid or not they would finally have to be lifted by the
shippers from the United States, since they were the final recourse.[52]
All delay tended to reduce the value of the goods, which were
perishable, on account of the climate and because of Cape Colony duties
and loss of market.
[Footnote 51: For. Rel., 1900, p. 582; Toomey to Hay, Jan. 23, 1900.]
[Footnote 52: For. Rel., 1900, p. 540; Hay to Choate, Jan. 10, 1900.]
The offer was made by several of the American shippers to sell to Great
Britain for the value of the goods at the port of original destination
at the time they would have arrived there had the voyage not been
interrupted. And the American representative urged that it would be
advisable for all American shippers who were interested to agree to sell
upon the same terms with a view to securing an arrangement which would
include all neutral American property. He suggested that where the title
to property was doubtful both shipper and buyer might unite in the sale,
since this course was preferable to incurring questions as between
consignors and consignees in the prize courts.[53]
[Footnote 53: For. Rel., 1900, p. 551; Choate to Hay, Jan. 12, 1900.]
The English Government had naturally been unwilling to buy at current
prices for the reason that prices were doubled at Delagoa Bay after the
seizures, but it was considered that the price there on the day of the
seizures was not unreasonable. Great Britain was willing to buy, but
emphasized the point that the alleged owners must prove their title to
ownership beyond a doubt as an essential condition of the arrangement,
since the Government could not incur the risk of paying one man only to
have another appear later and prove that he was the real owner. Fears
were expressed that the question of ownership would cause trouble,
although the regular shipping documents by which the goods had gotten
into the ships, it was thought, should be sufficient proof provided the
joint consent of consignors and consignees could be secured.[54]
[Footnote 54: For. Rel., 1900, pp. 553, 554, 579]
The English view had been that the whole cargo was included in the libel
for trading with the enemy declared against the ship, but the plea of
the American owners was heard, that the rules of prize procedure should
not be so rigorously enforced in the present instances, since such an
interpretation would have led to obvious injustice by requiring innocent
American owners to appear before the court to prove the title to their
property.[55] Such a requirement, it was realized, would have led to
difficulties of an almost unsurmountable character under the
circumstances. Claimants would have had to submit evidence showing a
_bona fide_ American citizenship and an actual title to the ownership of
the goods at the time they were seized. Within the rules of prize
jurisdiction the consignee on whose account and at whose expense the
goods were shipped is considered the owner of such goods during the
voyage. And as a corollary the further rule is suggested that the right
to claim damages caused for an illegal seizure would be in the owner. In
the prize court the delay caused by all such questions as between
consignor and consignee would have been almost endless.
[Footnote 55: For. Rel., 1900, p. 579; Choate to Hay, Feb. 2, 1900.]
The question might naturally have arisen whether there could be any
basis for a claim for indirect loss sustained by an American shipper
growing out of the sale on credit to citizens of the Transvaal. It might
be a question, too, whether the consignor might, notwithstanding the
seizures, be able to recover at law the full contract price of the goods
shipped prepaid to the consignee, and if so, whether the seizure could
be considered legally as a wrong against the American consignor. And
even granting that the latter were unable to recover at law from the
consignee, the question would still remain whether under all the
circumstances such inability on the part of the American consignor could
be legally imputable to the act of the British Government in making the
seizure. The question might also have arisen where an agent had bought
for the Transvaal Government on credit, so that the title passed when
the goods went on board and the goods were discovered to have been
contraband, whether an American shipper might not appear to have been
privy to the real character of the purchases. In such a case the United
States Government could hardly have championed the cause of a party who
had shipped contraband. A prize court is filled with pitfalls of the
kind, but the diplomacy of Secretary Hay, backed by the prestige of the
United States and a reciprocal feeling of friendship between the two
nations, was able to avoid all such questions by inducing Great Britain
to agree upon a settlement without compelling the claimants to go into
the prize court. Although it was pretty well ascertained that no actual
contraband in the usual sense of the term had been carried from America
by the ships which were seized, difficult questions were thus avoided as
between liens and general ownerships which might have arisen had
American shippers been compelled to go into court.
It is not a universal rule where the shipper has not been paid for his
goods that the property is still in him, so as to constitute him the
owner in a prize court, or for the purposes of sale. By the terms of
sale and shipment he may not have retained a lien on the goods. But in
any case as a rule the title of the absolute owner prevails in a prize
court over the interests of a lien holder, whatever the equities between
consignor and consignee may be.[56] Consequently the policy adopted by
Secretary Hay in demanding that Great Britain should settle with all
American shippers on an equitable basis without forcing them to take
their chances in a prize court was the wisest course that could have
been pursued.
[Footnote 56: The _Winnifred_, Blatch. Prize Cases, 2, cited 2 Halleck,
International Law, Engl. Ed. (1893), 392.]
In the final arrangement Great Britain admitted that the American goods
had not been liable to seizure except as a result of the libel attaching
to the ships. But any claims for damages due to the owners of the
cargoes on account of the failure of the vessels to deliver at the port
mentioned in the freight contract, it was asserted, should be made
against those who entered into or became responsible for the execution
of the contract for the delivery which they failed to perform, and the
assumption that such damages could be sustained at law would depend on
the terms of the contract of carriage. The English Government, however,
did not admit that it was in any way liable for damages to the owners of
the flour and other goods, since their detention was due entirely to the
circumstance that the ships were not able to complete their voyages, and
the fact that they could not complete their voyages was due to the
circumstance that such voyages were illegal by the law of the flag under
which they were sailing.[57]
[Footnote 57: For. Rel., 1900, pp. 604-605; Salisbury to Choate, March
3, 1900.]
Although the financial settlement which Great Britain was willing to
make was accepted by the United States, this acceptance did not imply an
acquiescence in the view expressed by the English Government with
reference to the conditions under which flour and other foodstuffs might
become contraband of war, nor in the doctrine of continuous voyages as
applied by Great Britain to trading with the enemy. It was preferred at
Washington to follow the usual rule and avoid passing upon hypothetical
cases until occasion had called them into actual existence. The problem
which had been before the Department of State was, not to force Great
Britain to declare herself finally upon broad questions of international
law, nor to express the final attitude of the United States upon
questions which were not immediately at issue, but to meet the demands
of American shippers and secure their immediate interests by some
equitable agreement with Great Britain. The arrangement agreed upon,
therefore, met only the necessity of the case immediately in view. The
United States Consul-General at Cape Town was to arrange with Sir Alfred
Milner, the British High Commissioner in South Africa, for the release
or purchase by the British Government of any goods owned by citizens of
the United States, which, if purchased, were to be paid for at the price
they would have brought at the port of destination at the time they
would have arrived there had the voyage not been interrupted.
Against certain articles, especially the oil consigned to the
Netherlands South African Railway, an allegation of enemy's property was
justly made and the oil confiscated.
In the end most of the American claims were withdrawn or paid in full.
In the former event the American owners threw the burden of proof of
ownership upon the consignees, who were instructed to present their
claims through their respective governments. But it should be noted that
in acceding to the American demands by purchasing the goods, the British
Government emphasized the fact that the act was purely _ex gratia_ on
the part of England. The British representative clearly stated that the
goods had been legally detained and that it was open for the owners to
come and take them upon proof of ownership before the prize court. It
was pointed out that the fact that none but British ships ran between
Cape Colony and Delagoa Bay, although an unfortunate circumstance, was
one which could hardly be held to be a fault of the English Government.
The enforcement of the English law was the right of Great Britain no
matter upon whom the inconvenience might happen to fall. Lord Salisbury
said: "It must be distinctly understood that these payments are made
purely _ex gratia_ and having regard to the special circumstances of
this particular case. No liability is admitted by Her Majesty's
Government either to purchase the goods or to compensate ... for the
losses or for the expenses ... incurred."[58] The view held by the
English statesman was that Great Britain's concession in these cases
should not serve as a precedent in the future.
[Footnote 58: For. Rel., 1900, p. 618; Salisbury to Choate, July 20,
1900, with reference to the _Beatrice_.]
The attitude which Great Britain had assumed with reference to the
different seizures was generally considered a menace to neutral
commercial interests should the British position be accepted as a
precedent for similar cases that might occur. The danger of such a
precedent had been realized by Secretary Hay and throughout the
negotiations he had dwelt upon the fact that while the protection of
American interests was the end immediately sought, the principles which
underlay the disposition of the particular cases were of the greater
importance.
Lord Roseberry, too, called attention to the danger of the precedent
should England determine to treat foodstuffs in general as contraband of
war. It was pointed out, however, that in the seizures of foodstuffs
near Delagoa Bay the question of contraband did not necessarily arise,
since all trade with the enemy, even in articles the most innocent, was
forbidden under heavy penalty. The seizure of certain classes of
foodstuffs as of a contraband character did not of necessity involve the
principle of treating all foodstuffs as contraband of war. The English
view was that it had long been recognized that a belligerent might
discriminate between foodstuffs obviously intended for the commissariat
of an army in the field and foodstuffs which might be properly imported
for the use of the non-combatant population.
The consensus of opinion, however, seems to be that while there may be
reasonable ground for including tinned or canned meats and the like in
the former category, flour naturally belongs to the latter class, and it
has been pointed out that neither the British Government nor any other
has the power of treating what it pleases as contraband without
reference to the prize court, with which alone the decision rests. The
prize courts of all countries have held at different times that
foodstuffs under certain circumstances are contraband, as, for instance,
where they are intended for the supply of a belligerent garrison as well
as in less obvious cases, but any decision which considered foodstuffs
generally as contraband would be disquieting to all neutral interests.
One writer has asserted that such an innovation would not be alarming to
Great Britain as long as she remained predominant at sea, since the more
effectual her sea power were declared to be in preventing sustenance
from going over sea to her enemy the better it would be for English
predominance. It is believed by this writer that during the existence of
this supremacy at sea she would be able to protect the passage of
general foodstuffs from foreign countries to her own ports. He
concludes, however: "Of course if we lose our predominance at sea it is
another matter. But then, e finita la Musica."[59]
[Footnote 59: Thos. Gibson Bowles, Jan. 4, 1900. For. Rel., 1900, p.
546.]
The acceptance of the principle that foodstuffs are contraband of war,
it need hardly be said, is not even a remote probability except under
very exceptional circumstances where they are for the immediate supply
of the enemy's army or navy, and in most cases of this kind they can
usually be confiscated as enemy's property without a direct implication
of a distinctly contraband character. In other words, the use for which
they are intended may give reasonable ground for the conclusive
presumption that they are for the enemy's immediate supply, whether the
title to property in them vests in the enemy or in some other agency,
and the last question is always to be decided by the prize court of the
particular country which has made the seizure. The decision should be
based upon a careful examination of the evidence which is submitted to
the court, and not presumed from the fact that the political power has
exercised the belligerent right of visit, search and detention. The
final decision of confiscation rests with the prize court.
By way of recapitulation it may be pointed out that the goods seized or
detained by the English authorities in South African waters were shipped
by American merchants and manufacturers, many of them on regular monthly
orders to alleged reputable merchants in Lorenzo Marques, Delagoa Bay,
in Portuguese territory. Certain consignments were intended for alleged
reputable firms in Johannesburg, South African Republic. The articles
composing the cargoes of the ships were of the general character of
foodstuffs, chiefly flour, canned meats, and other food materials.
Lumber, hardware and various miscellaneous articles generally considered
innocent in character were also included. There was a consignment of
lubricating oil to the Netherlands South African Railway, the latter
company held to be the property of the Transvaal Government, and a like
consignment to the Lorenzo Marques Railway, a Portuguese concern. At
first the seizures which occurred at points between Cape Colony and
Delagoa Bay were supposed to have been made on account of contraband.
Later Great Britain declared that the ships had been seized because of
the violation of a municipal ordinance forbidding British subjects to
trade with the enemy. The _Mashona, Beatrice_ and _Sabine_ were British
ships sailing under the English flag. The _Maria_ was a Dutch vessel
sailing under the flag of Holland, but was supposed by the English
authorities to have been under charter to an English firm. In the latter
case the ship would have been liable to the English law, but for the
mistake the owners of the ship as well as the owners of the cargo were
indemnified by the English Government. The seizure of the cargoes of the
British ships was declared to have been merely an unavoidable incident
of the seizure of the alleged guilty ships. Compensation was made to
American shippers by the purchase of the goods. The consignment of oil
to the Netherlands South African Railway was confiscated as enemy's
property.
The views of Great Britain and the United States were divergent with
reference to the principle of treating foodstuffs as contraband. Rather
as an _obiter dictum_ the former declared: "Foodstuffs with a hostile
destination can be considered contraband of war only if they are
supplies for the enemy's forces. It is not sufficient that they are
capable of being so used; it must be shown that this was in fact their
destination at the time of the seizure."[60]
[Footnote 60: For. Rel., 1900, p. 555.]
The United States declared that the validity of the right to seize goods
on the ground of contraband could not be recognized "under any
belligerent right of capture of provisions and other goods shipped by
American citizens in the ordinary course of trade to a neutral
port."[61]
[Footnote 61: For. Rel., 1900, p. 540.]
England declared: "Her Majesty's Government have not admitted liability
in respect of any claims for loss or damage sustained ... in
consequence of the delay in the delivery of the ... goods. But they
have offered to purchase the flour on board by United States citizens.
Claims for redress for the non-delivery of the cargo appear to be a
matter for settlement between such claimants and the ship which
undertook to deliver. British subjects who owned goods on board, having
no right to trade with the enemy, are not in the same position as
foreign owners. The latter are not guilty of any offense in trading with
the enemy from a neutral country unless the goods are contraband and are
found on board a British ship in British territorial waters or on the
high seas, _and are destined for the enemy's countries_."[62]
[Footnote 62: Mr. Broderick, Under-Secretary for Foreign Affairs,
speaking in House of Commons in regard to the _Mashona_ on March 19,
1900.]
With reference to trading with the enemy Great Britain attempted to
extend the accepted doctrine of continuous voyages. She expressed
herself as follows: "An ultimate destination to citizens of the
Transvaal even of goods consigned to British ports on the way thither,
might, if viewed as one "continuous voyage" be held to constitute in a
British vessel such a "trading with the enemy" as to bring the vessel
within the provisions of the municipal law."[63]
[Footnote 63: For. Rel., 1900, p. 609.]
The United States held that "the destination of the vessel being only
such [British] ports ... the port authorities may presumably, and are
assumed to be bound to, prevent transshipment through British territory
of contraband destined for the Boers."[64]
[Footnote 64: For. Rel., 1900, p. 594.]
No contraband was shown, and the attempt which Great Britain made to
extend the ruling of the Supreme Court of the United States in 1863 so
as to apply to trading with the enemy cannot be considered to have been
successful. The questions of international law involved in the seizures
of flour and foodstuffs generally were not answered by the final
arrangement between the Governments concerned. In his Message to
Congress in 1900 President McKinley deplored the fact that while the war
had introduced important questions the result had not been a "broad
settlement of the question of a neutral's right to send goods not
contraband _per se_ to a neutral port adjacent to a belligerent area."
Two things, however, were apparently admitted: (1) that a belligerent
may declare flour contraband _pro hac vice_; (2) that a belligerent may
detain neutral goods and divert them from their destination on a
reasonable suspicion that they are intended for the enemy, subject to a
claim for compensation including damage by detention.
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