The American delegates to the Secretary of State.
London, 2d March, 1909.
Sir: We have the honor to inform you that the international naval conference called at London in October, 1908, and later postponed until December, 1908, assembled at the foreign office in London on December 4, at noon. Sir Edward Grey, secretary of state for foreign affairs, extended welcome to the conference on behalf of Great [Page 305] Britain. The conference then proceeded to organization, electing the Earl of Desart, British plenipotentiary, as president. The following powers were represented in accordance with the invitation given them: Germany, the United States, Austria-Hungary, Spain, France, Great Britain, Italy, Japan, Holland, and Russia.
The conference, after a few plenary meetings, resolved itself into a commission, in order that the topics before it might be considered in a less formal manner. After the topics had received considerable discussion a committee of examination was appointed with a view to reducing the material presented to a definite form for the consideration of the commission. After consideration by the commission the subjects would go to the conference in plenary session for final action. The distinguished French jurist, Monsieur L. Renault, head of the French delegation, was elected the chairman of the commission and of the committee of examination and finally rapporteur général. The call of the conference and the rules adopted for its procedure are appended to this report (Exhibits A and B).
The British Government, in order to facilitate the work of the conference, called for a memorandum of the views of each power as to their practice in matters covered by the subjects named in the call for the conference.
The memoranda thus sent was finally translated into French and arranged together in a Red Book in various ways and under several heads with convenient bases of discussion. This book, a copy of which has been duly forwarded to the department, proved to be of great value, especially in the earlier days of the conference, in crystallizing views and showing points of agreement and variance upon the subjects treated by the conference.
The rules, finally formulated by the conference into a declaration relative to the laws of maritime war, number 64 in all, and cover the subjects, arranged by chapters, of Blockade in Time of War, Contraband of War, Unneutral Service, Destruction of Neutral Prizes, Transfer of Flag, Enemy Character, Convoy, Resistance to Visit and Indemnity.
After the completion of the formulation of the rules above mentioned the conference, considering the difficulties that may arise on account of the constitutional requirements of certain states which might prevent them from becoming parties to The Hague convention for the establishment of the international prize court of appeal, drew up a protocol of closure in which a “voeu” (or wish) was expressed to their several Governments calling attention to the advantage that would arise from the conclusion of an arrangement by which the states affected by such constitutional difficulties could have recourse to the international prize court by presenting each case de novo, without affecting the rights guaranteed by the convention either to private persons or to their Governments. This protocol, with its included “voeu,” was the result of continued efforts made by the American delegation at the instance of the Department of State. It was signed by all of the plenipotentiaries present, or by the delegates present who had temporarily taken their places.
The final signing of the declaration and protocol was effected on the 26th February, after which the conference adjourned sine die.
[Page 306]Chapter I.—Blockade in Time of War.
These rules are definitely understood to have no reference to what has been called “pacific blockade.”
The general principles in regard to blockade set forth in the Declaration of Paris, April 16, 1856, which have been interpreted by courts, and are therefore fairly established, are reaffirmed.
The right of the commander of the blockading force to allow or to refuse admission to a blockaded port to neutral public ships, or neutral vessels in distress, is recognized.
The method of establishing and raising a blockade is made more clear. Certain States which had customarily maintained a position which required notification of the existence of blockade at the line of blockade made concessions to those which, like the United States, had stood for the principle of public notification to the Government whose flag the ship flies.
Some States, including the United States, had formerly maintained that the liability for the violation of the blockade continues until the vessel has reached her home port or completed her voyage. With the development of modern commerce there has arisen much difference of opinion as to what constitutes a home port or completion of voyage, and in fact the route of many vessels, such as tramp cargo steamers, is determined by the cargo available at the time, and such a vessel may not return to the port of departure for months. Under these circumstances and with a view to avoiding undue interference with neutral commerce, while at the same time retaining the freedom of action for the belligerent, a rule was drawn up and met with general favor, to the effect that the ship guilty of violation of blockade is liable to seizure so long as it is pursued by a ship of the blockading force within the area of blockading operations known as the “rayon d’action,” or before entering a neutral port to complete her voyage.
Confiscation is the general penalty for violation of blockade.
The question receiving the most attention was that of “rayon d’action.” Certain States were in favor of a limitation of the “rayon d’action” to a very small area. The American delegation regarded this limitation as opposed to the principles which it should support. The form of regulation finally adopted is as follows:
Neutral vessels can not be captured for breach of blockade except within the area of operations of the war ships detailed to render the blockade effective.
Statements made by the United States upon the subjects of blockade and area of operations are herewith appended—Annex B and Annex C.
Chapter II.—Contraband of War.
The question of contraband involved many difficulties which can be readily understood when the various memoranda submitted by the powers oh that subject are consulted. It is to the credit of the conference as a whole, and of its delegates singly, that an agreement, satisfactory from so many different points of view, was reached. These rules are more in harmony with modern conditions than those formerly existing, and lighten the burden of neutrals in war time without sacrificing belligerent rights.
[Page 307]I he conference adheres to the old nomenclature of absolute and conditional contraband, adding, however, a free list of articles which can not be considered contraband of war.
The first list—that of absolute contraband—is the one virtually agreed upon at The Hague, which, to prevent prolonged discussion and in accordance with instructions from the department, was accepted as a whole by the American delegation. Item No. 7, concerning horses, etc., was found objectionable by one delegation, and if an amendment had been allowed to the list their objection would have been supported by the American delegation, as horses, mules, etc., in the United States could be considered as conditional contraband. In European countries, however, liable as their inhabitants are to forced requisitions for horses, etc., they may be logically considered as absolute contraband. The list as adopted omits many articles named in the various memoranda, such as canned provisions, sulphur, saltpeter, and other materials used in the fabrication of explosives, which, if included, would have been prejudicial to the United States, and also omits cotton, which under one memorandum might easily have been included.
The second list of contraband—that of conditional contraband— depends for determination of character upon the destination, whether for peaceful or warlike purposes.
If by changes in warfare other materials outside of the free list become adapted to the uses of war, they can be added to the lists of absolute or conditional contraband by means of a published notification to the other powers either before or after the opening of hostilities.
The free list consists of 17 groups of articles, as follows:
- 1.
- Raw cotton, wool, silk, jute, flax, hemp, and other raw materials of the textile industries, and yarns of the same.
- 2.
- Oil seeds and nuts; copra.
- 3.
- Rubber, resins, gums, and lacs; hops.
- 4.
- Rawhides and horns, bones, and ivory.
- 5.
- Natural and artificial manures, including nitrates and phosphates for agricultural purposes,
- 6.
- Metallic ores.
- 7.
- Earth, clays, lime, chalk, stone, including marble, bricks, slates, and tiles.
- 8.
- Chinaware and glass.
- 9.
- Paper and paper-making materials.
- 10.
- Soap, paint, including articles exclusively used in their manufacture, and varnish.
- 11.
- Bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia, and sulphate of copper.
- 12.
- Agricultural, mining, textile, and printing machinery.
- 13.
- Precious and semiprecious stones, pearls, mother-of-pearl, and corals.
- 14.
- Clocks and watches, other than chronometers.
- 15.
- Fashion and fancy goods.
- 16.
- Feathers of all lands, hairs, and bristles.
- 17.
- Household furniture; office furniture and requirements.
The establishment of this list is of great benefit to the sea-borne foreign trade of all countries, and especially to that of the United States, whose exports and imports would be greatly affected by any uncertainty regarding cotton, wool, silk, jute, flax, cotton seed, rubber, hides, fertilizers, metallic ores, paper and paper-making materials, chemicals, agricultural and other machinery, clocks and watches, furniture, etc. Drugs and medicines and material for the sick and wounded, are included among those not contraband of war, [Page 308] but can be requisitioned with compensation for the needs of the sick and wounded of the captor.
The doctrine of continuous voyage is retained with respect to absolute contraband and well defined in article 30. The doctrine of continuous voyage in any form has heretofore been considered as nonexistent by several European powers, and it was a very considerable concession upon their part to accept it as applied to absolute contraband. On our part, in giving up continuous voyage as applied to conditional contraband and blockade we gave up a belligerent right now regarded as of little value. The articles of conditional contraband carried by neutral carriers would be bulky and difficult to trace when bound for the common stock of a neutral country. Not being earmarked, they would be most difficult of seizure when afloat. They would be, as a rule, matters of export by us as neutrals, and would be such materials as foodstuffs, oats, hay, railway materials, coal, oil, barbed wire, horseshoes, etc. It is unnecessary to say that to free such articles from the fetters of the continuous-voyage doctrine would be of great service to our trade during war in which the United States is a neutral.
Much relief is afforded to neutrals in respect to the penalty of carrying contraband. In the first place, the ship is not subject to confiscation unless more than half of the cargo is contraband, to be determined either by weight, volume, value, or freight value.
A rule was adopted that a ship seized for carrying contraband, although not itself liable to confiscation because the proportion of contraband was below one-half, could be authorized to proceed according to circumstances if the captain was ready to deliver the contraband articles to the belligerent man-of-war. The captor in such a case has the option of destroying the contraband which is thus delivered to him. This procedure is one of value, as it saves from capture and detention a neutral liner filled with passengers, mails, and valuable freight, which might have a small amount of contraband known or unknown to its captain and owner. This procedure is also in conformity with many treaties made by the United States, dating from 1783 to 1864. It avoids vexatious seizure of neutral vessels—bad enough in the times of small vessels, but intolerable with the great liners of to-day.
Chapter III.—Unneutral Service.
Certain acts, to which, by forced interpretation, the doctrines of contraband or of blockade had at times been extended, are recognized as differing both in nature and in penalty from contraband and blockade. Thus much confusion is avoided in time of war upon the sea. Penalty of confiscation of ship for transport of troops and dispatches for the belligerent, and for cooperation in assisting the enemy, is provided, and in general, penalties are as for carriage of contraband. The penalty of confiscation and treatment as an enemy ship is provided for a ship taking direct part in hostilities, under orders of the belligerent, wholly loaded by the enemy government or when exclusively used in transport service of the enemy.
The aim of article 48 is to justify the taking of an officer incorporated in the armed forces from a ship without bringing the ship, if it be a large vessel, into port for adjudication, and also to allow the [Page 309] arrest of an officer or officers of high rank who, in disguise or incognito and unknown to the captain of the vessel, are on board of a neutral liner. In this case a want of knowledge on the part of the proper authorities of the vessel might readily clear the vessel from any taint and show there was no proper reason for sending in the ship, but the right to take the prisoner seems important. The least objectionable action would be to take the enemy officer, but allow the ship to proceed.
Chapter IV.—Destruction of Neutral Prizes.
This question was considered very fully and frankly by the comference. Views at first thought to be widely divergent were found to be similar in many respects. While some proclaimed the right to destroy neutral prizes, no one admitted that this could be done except for grave reasons. While some denied the right to destroy, all were inclined to admit that there might be exceptional circumstances under which destruction must be permitted.
All admitted that in general a neutral prize ought not to be destroyed, but should be taken to a prize court; but under exceptional circumstances a vessel otherwise liable to confiscation might be destroyed, though it would be necessary to care for persons and papers on board.
Necessity for destruction must be first established, and the further fact that the vessel would in any case be liable to confiscation must also be established, though if the necessity for destruction is not established, the liability of the state of the destroying vessel to pay indemnity is recognized whether or not the neutral vessel is guilty. The owner of neutral merchandise on board which is not liable to confiscation is also entitled to indemnity. Thus restraint commensurate with the gravity of the act is provided. A belligerent commander destroying a neutral vessel puts his government under grave responsibilities, which are here recognized. The conclusion set forth in these rules seems to be in accord with the doctrine of the United States.
Chapter V.—Transfer of Flag.
The subject of transfer of flag of a ship in consequence of sale in anticipation of or during war was the subject of frequent and prolonged discussion. A private ship of the enemy would be liable to capture in time of war, while the ship of a neutral would be free. It is natural, therefore, that the owners of ships which would be liable to capture in time of war should desire to avoid this liability by selling the ships to a neutral and placing them under a free flag. At the same time a belligerent does not wish to be deprived of the opportunity to attack ships which are really enemy ships, though they may be for the time flying a neutral flag. Thus there arises in time of war the conflict between the right of the neutral to trade with one belligerent and the right of the other belligerent to interfere with belligerent commerce.
It has been decided that commerce in ships in time, of war is, in general, not legitimate unless it is bona fide commerce and not undertaken to evade the consequences to which the ship would be liable if [Page 310] it retained the enemy flag. The burden of proof of validity of the transfer is placed on the vendor. In all such cases commerce would be regarded as illegitimate when the transfer is made (1) in transitu or in a blockaded port, (2) with the right of repurchase or return, or (3) contrary to the laws of the flag which it bears.
It would also be possible, and to some extent has been the practice, for shipowners anticipating war to make transfers just before the outbreak of war. Such transfers, when made with the view to evading the consequences of the war and not as commercial transactions, are not regarded as legitimate, but the burden of proof rests upon the captor, except when the papers in regard to the transfer, which has been made within 60 days before the outbreak of war, are not on board. In this exceptional case the burden of proof of the validity of the transfer is placed on the vessel, as there is not sufficient evidence at hand in the ship’s papers to enable the captor to release the ship.
It would, however, be an undue interference with commerce if all sales or sales made a long time before the war were liable to be regarded as invalid. It is therefore decided that sales made more than 30 days before the war, even though made with the idea of evading the consequences of a war which might subsequently break out, would be valid unless there is some irregularity in the transfer itself, or unless it is not an actual transfer, evidence of which might be in the fact that the profits and control remain in the same hands as before the sale.
There are thus established three periods under which transfer of flag is considered, (1) during war, when burden of proof of the validity of the transfer rests upon the vender; (2) a period of 30 days before the war, during which it is necessary for the captor to prove that the transfer is made to evade the consequences of war; and (3) the period prior to 30 days, when, regardless of whether or not the transfer is made to escape the consequences of war, it is necessary for the captor to establish that the transfer itself is irregular, or not in fact a transfer. It is also necessary that in order to have advantages of these provisions a vessel transferred within 60 days before the war shall have the papers relating to the sale on board.
These provisions establish much more definite rules, where formerly there had been great diversity of practice among States, or even diversity in the same State at different periods. Commerce in ships is recognized as legitimate under such restrictions as seem necessary in order to safeguard belligerent rights.
The attitude of the American delegation is shown in the “Exposé” (Annex 00) appended. The American delegation advocated the adoption of a rule to the following effect:
A transfer effected before the outbreak of war is valid if it is absolute, complete, bona fide, and conforms to the legislation of the States interested, and if it has for its effect that neither the control of the ship, nor the profits arising from its use, remain longer in the same hands as before the transfer.
If the captor can establish that the above conditions have not been fulfilled, the transfer is presumed to have intervened with the intention to evade the consequences of war, and is null.
This rule, practically as above, was adopted.
The American delegation also advocated the placing of a definite limit to the period during which transfers made before the war could [Page 311] be questioned, and such a provision was finally adopted by the conference.
Thus the rights of belligerents and of neutrals are defined and safeguarded.
Chapter VI.—Enemy Character.
The consideration of this topic was intrusted to a “comité juridique” consisting of one member from each delegation. The States represented at the conference were found to be equally divided, five favoring the principle of domicile of the proprietor as the criterion of character of goods found on an enemy vessel and five favoring nationality. After many meetings, it was found impossible to reach an agreement, and this question was left open, the rule stating that—
The neutral or enemy character of merchandise found on board an enemy ship is determined by the neutral or enemy character of its proprietor.
What principle should decide the neutral or enemy character of the proprietor is not determined.
The other rules in regard to enemy character in the main formulate existing practice.
Chapter VII.—Convoy.
Great Britain formerly refused to admit the right of convoy of neutral merchant vessels by neutral ships of war. In a spirit of conciliation that Government receded from its former position and admitted the right of convoy. There remained then only the determination of the method of its exercise. The American delegation steadily maintained that as the effect of convoy was in the main to remove the vessels under escort from the belligerent right of visit and search, the convoying officer should assume the responsibility for the vessels under his control. Naturally a war vessel of a belligerent approaching a convoy would be entitled to obtain the information in regard to the vessels under convoy that it would obtain from an actual visit to the vessels if they were not under convoy. The officer in command of the public vessel convoying the merchant vessels should be prepared to furnish this information. The commander of the vessel of the belligerent may have reason to believe that the convoying officer has been deceived, and in such case may properly request that his suspicions be considered. The convoying officer should investigate, and may if he desires allow an officer from the belligerent vessel to share the investigation, and should inform the commander of the belligerent of the results of his investigation.
If the commander of the convoy finds that a vessel to which he has given escort is, in his opinion, violating his good faith, he ought to withdraw his protection. Such a vessel has forfeited its right to protection, and, in justice both to other neutrals and the belligerent, ought to be liable for the consequences.
This rule was drawn with view to affording the greatest convenience and service to neutrals, without depriving belligerents of proper war rights. In spirit it accords with both American doctrine and treaties.
[Page 312]Chapter VIII.—Resistance to Visit and Search.
A general accord was found in the opinion upon this subject, and the following rule was adopted:
Resistance by force to the legitimate exercise of the right of visit, search, or seizure renders the vessel in all cases liable to confiscation. The cargo is liable to the same treatment as the cargo of an enemy ship. The merchandise belonging to the captain or to the owners of the ship is regarded as enemy merchandise.
Chapter IX.—Indemnity for Seizure.
It has been recognized by prize courts that in cases of unjust seizure the vessel seized should receive indemnity for the loss, inconvenience, and delay which it has suffered. It is also recognized that the vessel while innocent may appear to be guilty, and that the captor has a right to demand that the vessel be clearly innocent. This would not be the case if the papers were irregular, if the vessel were far out of its course and near a blockaded port, or otherwise evidently open to suspicion. Such grounds might justify the belligerent in taking the vessel to a prize court, but might not justify condemnation by the court.
That the rights of both belligerents and neutrals might be secured a rule in accord with general practice was formulated to the effect that when the seizure of a ship or merchandise is declared null by the prize court, or if, without being brought to judgment, the seizure of the vessel is not sustained, the persons interested have a right to indemnity unless there have been sufficient reasons for the seizure of ship or merchandise.
Conclusion.
In closing this report, the American delegation to the International Naval Conference desires to state that the declaration adopted by the conference, defining the relations between belligerents and belligerents, and between belligerents and neutrals, will, without interfering with legitimate belligerent or neutral action, remove many of the reasons for international friction and misunderstanding, which until the present time have frequently existed. Ten powers have reached an agreement upon matters which, if left to divergent practice, and solely to national prejudice, would have made some of the earnest hopes of the conferences at The Hague and the desires often expressed by the United States Government impossible of realization.
We desire to recognize the uniform courtesy and hospitality of the British Government, and we specially desire to express our appreciation of the great assistance rendered to us in many ways by the American ambassador in London, and by the various members of the embassy staff.
We have the honor to be, sir,
Your obedient servants,
- C. H. Stockton,
- George Grafton Wilson,
Delegates Plenipotentiary to the International Naval Conference. - Ellery C. Stowell,
Secretary of the Delegation.