Case of the "General Arm

strong."

prevent, as far as is in his power, the belligerent concerned from committing such violation; for instance, to repulse an attack of men-of-war of a belligerent on enemy vessels in neutral ports. And in case he could not prevent and repulse a violation of his neutrality, the same duty obliges him to exact due reparation from the offender. For otherwise he would favour the one party to the detriment of the other. If a neutral neglects this obligation, he is thereby committing a violation of neutrality on his part for which he may be made responsible by such belligerent as has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by the neutral. For instance, if belligerent men-of-war seize enemy vessels in ports of a neutral, and if the neutral, who could not or did not prevent this, exacts no reparation from the belligerent concerned, the other party can make the neutral responsible for the losses sustained.

§ 361. Some writers 2 maintain that a neutral is freed from responsibility for a violation of neutrality through a belligerent attacking enemy forces in neutral territory, in case the attacked forces, instead of trusting for protection or redress to the neutral, defend themselves against the attack. This rule is

1 This duty is nowadays generally recognised, but before the nineteenth century it did not exist, although the rule was well recognised that belligerents must not commit hostilities on neutral territory, and in especial in neutral ports and waters. That in spite of its recognition this rule was in the eighteenth century frequently not obeyed by commanders of belligerent fleets, can be illustrated by many cases. Thus, for instance, in 1793,

the French frigate "Modeste" was captured in the harbour of Genoa by two British men-of-war (see Hall, § 220). And in 1801, during war against Sweden, a British frigate captured the "Freden" and three other Swedish vessels in the Norwegian harbour of Oster-Risoer (see Ortolan, II. pp. 413-418.)

2 See, for instance, Hall, § 228, and Geffcken in Holtzendorff, IV. p. 701.

adopted from the arbitral award in the case of the "General Armstrong." In 1814, during war between Great Britain and the United States of America, the American privateer "General Armstrong," lying in the harbour of Fayal, an island belonging to the Portuguese Azores, defended herself against an attack of an English squadron, but was nevertheless captured. The United States claimed damages from Portugal because the privateer was captured in a neutral Portuguese port. Negotiations went on for many years, and the parties finally agreed in 1851 upon arbitration to be given by Louis Napoleon, then President of the French Republic. In 1852 Napoleon gave his award in favour of Portugal, maintaining that, although the attack on the privateer in neutral waters comprised a violation of neutrality, Portugal could not be made responsible, on account of the fact that the attacked privateer chose to defend herself instead of demanding protection from the Portuguese authorities. It is, however, not at all certain that the rule laid down in this award will find general recognition in theory and practice.2

exacting

from Bel

§ 362. It is obvious that the duty of a neutral not Mode of to acquiesce in violations of neutrality committed by Repa one belligerent to the detriment of the other obliges ration him to repair, so far as he can, the result of such ligerents wrongful acts. Thus, he must liberate a prize taken in tions of his neutral waters, or prisoners made on his territory, Neuand the like. In so far, however, as he cannot, or not sufficiently, undo the wrong done, he must exact

1 See Calvo, IV. § 2662, and Dana's note 208 in Wheaton, $429.

The case of the "Reshitelni," which occurred in 1904, during the Russo-Japanese War, and is somewhat similar to that of the

"General Armstrong," is dis-
cussed above in § 320 (2). That
no violation of neutrality took
place in the case of the "Variag'
and "Korietz," is shown above in
$320 (1).

for Viola

trality.

reparation from the offender. Now, no general rule can be laid down regarding the mode of exacting such reparation, since everything depends upon the merits of the individual case. Only as regards capture of enemy vessels in neutral waters a practice has grown up, which must be considered binding, and according to which the neutral must claim the prize, and eventually damages, from the belligerent concerned, and must restore her to the other party. Thus in 1800, during war between Great Britain and the Netherlands, Prussia claimed before the British Prize Court the "Twee Gebroeders," 1 a Dutch vessel captured by the British cruiser "L'Espiègle" in the neutral maritime belt of Prussia. Sir William Scott ordered restoration of the vessel, yet he refused costs and damages, because the captor had not intentionally violated Prussian neutrality but only by mistake and misapprehension. Thus again, in 1805, during war between Great Britain and Spain, the United States claimed before the British Prize Court the "Anna,' a Spanish vessel captured by the English privateer "Minerva" within their neutral maritime belt. Thus, further, in 1864, during the American Civil War, when the Confederate cruiser "Florida " was captured by the Federal cruiser "Wachuset" in the neutral Brazilian port of Bahia, Brazil claimed the prize. As the latter had sunk while at anchor in Hampton Roads, she could not be restored, but the United States disowned the violation of neutrality committed by her cruiser by court-martialling the commander; further, by dismissing her Consul at Bahia for having advised the capture; and, finally, by sending a man-of-war to the spot where the violation of neutrality had taken place for the special

"2

1

3

Rob. 162.

2

5 Rob. 373. See above, vol. I. § 234.

purpose of delivering a solemn salute to the Brazilian flag.1

the part of

§ 363. Apart from intentional violations of neu- Neglitrality, a neutral can be made responsible only for such gene on acts favouring or damaging a belligerent as he could Neutrals. have prevented with due diligence, and has been culpably negligent in his omission to prevent. It is by no means the obligation of a neutral to prevent such acts under all circumstances and conditions. This is in fact impossible, and it becomes all the more impossible the larger a neutral State and its boundary lines are. As long as a neutral exercises due diligence for the purpose of preventing such acts, he is not responsible in case they are nevertheless performed. However, the term due diligence has become controversial through the definition proffered by the United States of America in interpreting the Three Rules of Washington, and through the Geneva Court of Arbitration adopting such interpretation.2 According to this interpretation the due diligence of a neutral must be in proportion to the risks to which either belligerent may be exposed from a failure to fulfil the obligations of neutrality on his part. If this interpretation were generally recognised, oppressive obligations would be incumbent upon the neutrals. However, the fact is that this interpretation is neither in theory nor in practice generally recognised. Due diligence in International Law can have no other meaning than what it has in Municipal Law. It means such diligence as can reasonably be expected if all the circumstances and conditions of the case are taken into consideration.

The Obsolete Right of Angary.

IX

RIGHT OF ANGARY

Hall, 278-Lawrence, § 252-Phillimore, III. § 29-Halleck, I. p. 485-Taylor, § 641-Walker, § 69-Bluntschli, § 795A-Heffter, § 150-Bulmerincq in Holtzendorff, IV. pp. 98-103-Geffcken in Holtzendorff, IV. pp. 771-773-Borfils, No. 1440-Rivier, II. pp. 327-329-Kleen, II. §§ 165 and 230-Holland, War, No. 24— Perels, § 40-Hautefeuille, III. pp. 416-426.

$364. Under the term jus angariae1 many writers on International Law place the right, often claimed and practised in former times, of a belligerent deficient in vessels to lay an embargo on and seize neutral merchantmen in his harbours, and to compel them and their crews to transport troops, ammunition, and provisions to certain places on payment of freight in advance. This practice arose in the Middle Ages, and was made much use of by Louis XIV. of France. To save the vessels of their subjects from seizure under the right of angary, States began in the seventeenth century to conclude treaties by which they renounced such right with regard to each other's vessels. Thereby the right came into disuse during the eighteenth century. Many writers 3 assert, nevertheless, that it is not obsolete, and might be exercised even to-day. But I doubt whether the Powers would concede to one another the exercise of such a right. The fact that no case happened in the nineteenth century and that International Law with regard to rights and duties of neutrals has become much more developed

The term angaria, which in medieval Latin means poststation, is a derivation from the Greek term ayyapos for messenger. Jus angariae would there. fore literally mean a right of

transport.

2 See above, §§ 40 and 102. 3 See, for instance, Phillimore III. § 29; Calvo, III. § 1277; Heffter, § 150; Perels, § 40.