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RESPONSIBILITY FOR CABLE SERVICE.

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agreed upon by the belligerent and the neutral. In all such cases the action may lead to cutting in case the belligerent is not satisfied with the restrictions proposed, or to the sealing and absolute prohibition of the service in case the neutral is not satisfied with the conditions proposed.

The development of a policy of national responsible control is advocated as the best method for securing the end advocated by all, "the complete submission of the enemy at the earliest possible period with the least expenditure of life and property." National control and guarantee of neutrality in time of war would be for the advantage of owners during war and for the world at large on return of peace, provided always a satisfactory means for assuring neutrality can be found.

The responsibility of state Y.-The general principles of jurisdiction or the right to exercise state authority undoubtedly carries with it the right to control cables so far as is necessary for the protection of state Y or the maintenance of its sovereignty, particularly so far as those cables are within the limits of the jurisdiction of the state.

From the relation of a state to a cable, state Y is doubtless at liberty to disclaim responsibility for a cable already constructed so far as its international relations are concerned. It may, however, as in the case of Brazil, by Article V of the proclamation of neutrality in 1898, prohibit the use of a cable or other means of telegraphic communication for the aid of either belligerent by a domestic regulation. Brazil would thus assume a moral obligation to enforce its proclamation. This would not carry international responsibility, but merely shows that a state may assume of its own accord some supervision of its cable service. It is not, however, a violation of neutrality not to assume any control or responsibility for private lines.

It has been held, however, that the state does control absolutely the landing of cables upon its shores, and that it would therefore be a violation of neutrality to permit,

Naval War Code of the United States.

Proclamations and decrees during the war with Spain, p. 14.

during the continuance of the war, a new cable to be laid within its jurisdiction for military purposes which should connect its shores with one of the belligerents.'

Another phase of cable control is seen in the action of the company in sealing the cable at Hongkong to avoid all complications. This opens the question of responsible sealing as a means of avoiding injury to cable property, which in itself is of the greatest benefit to the world. If actually sealed by a responsible party the cable has nothing in its nature to render it necessarily confiscable. All that a belligerent wishes in regard to hostile cables is that they shall not be used at all or shall not be used for hostile purposes after the belligerent has once been in position to prevent such use. Outside of neutral jurisdiction a belligerent might of course with propriety cut a cable connecting a blockaded port of the enemy.

There is equally no question that the belligerent has no right to demand that all cables connecting the enemy state with neutrals shall be sealed or otherwise controlled, provided he is in no position to enforce his demands by himself interrupting the cable.

The grounds for cutting the cable. In the case submitted the neutral state Y, as it is competent to do, declines to assume any responsibility. This places the cable upon the basis of private property.

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(a) Cables in time of blockade.-In this case there is no statement that a blockade exists and that the service of the cable is interrupted on that account. In regard to such interruption there would be no question. Fauchille maintains that when a port is blockaded so that a neutral can not communicate with it, there is no doubt that the blockading belligerent can interrupt the cable as he would a dispatch boat. This position is generally admitted.

(b) Cables as contraband.-To bring such use of submarine telegraphic cable under the category of contraband is inconvenient and in many respects unfortunate. The tendency is to limit contraband to goods and

See Wilson, Submarine Telegraphic Cables, p. 18, Naval War College Lectures, 1901. Also, For. Rel. 1898, p. 976; 22 Opin. Attys. Gen., pp. 13, 315.

2 Du Blocus Maritime, p. 248.

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INTERRUPTION OF SUBMARINE CABLE SERVICE. 11

to determine their category as contraband or noncontraband by their nature and destination. To regard a cable between an enemy and a neutral as contraband because of its possible hostile use is to resort to a position making needful a course of reasoning unnecessarily complex and confusing. The action of the officer, if justifiable at all, may rather be justifiable on other grounds than that of violation of blockade or of seizure as contraband.

(c) Cables and unneutral service.-The difference between the carriage of contraband and the aid afforded by the transmission of information was early recognized. Lord Stowell, in the case of the Atalanta in 1808, said:

"If a war intervenes and the other belligerent prevails to interrupt that communication (between mother country and colony), any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state, and is justly to be considered in that character. Nor let it be supposed that it is an act of light and casual importance. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of stores is necessarily an assistance of limited nature; but in the transmission of dispatches may be conveyed the entire plan of the campaign that may defeat all the projects of the other belligerent in that quarter of the world. The practice has been, accordingly, that it is in considerable quantities only that the offense of contraband is contemplated. The case of dispatches is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature."

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This opinion of the great English jurist, rendered early in the nineteenth century, shows that the transmission of dispatches of varying character can not properly be

16 C. Rob., 440, 454.

put in the same category with contraband because so different in nature and results.

Dana, in note 228 to Wheaton, speaking of the carrying of hostile persons or papers in contrast to contraband,

says:

"But the subject now under consideration is of a different character. It does not present cases of property or trade, in which such interests are involved, and to which such considerations apply, but simply cases of personal overt acts done by a neutral in aid of a belligerent. Suppose a neutral vessel to transmit signals between two portions of a fleet engaged in hostile combined operations, and not in sight of each other. She is doubtless liable to condemnation. It is immaterial whether these squadrons are at sea or in ports of their own country or in neutral ports, or how far they are apart or how important the signals actually transmitted may be to the general results of the war, or whether the neutral transmits them directly or through a repeating neutral vessel. The nature of the communication establishes its final destination and it is immaterial how far the delinquent carries it on its way. The reason of the condemnation is the nature of the service in which the neutral is engaged."

Hall' says:

"With the transport of contraband merchandise is usually classed analogically that of dispatches bearing on the conduct of the war, and of persons in the service of a belligerent. It is, however, more correct and not less convenient to place adventures of this kind under a distinct head, the analogy which they possess of the carriage of articles contraband of war being always remote. They differ from it in some cases by involving an intimacy of connection with the belligerent which cannot be inferred from the mere transport of contraband of war, and in others by implying a purely accidental and almost involuntary association with him. They are invariably something distinctly more or something distinctly less than the transport of contraband amounts to.

Int. Law, 4th ed., p. 697.

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When they are of the former character they may be undertaken for profit alone, but they are not in the way of mere trade. The neutral individual is not only taking his goods for sale to the best market, irrespectively of the effect which their sale to a particular customer may have on the issue of the war, but he makes a specific bargain to carry dispatches or persons in the service of the belligerent for belligerent purposes; he thus personally enters the service of the belligerent, he contracts to perform acts intended to affect the issue of the war, and he makes himself in effect the enemy of the other belligerent."

Lawrence, in his third edition,' says:

"In truth, between the carrying of contraband and the performance of what we may term unneutral service there is a great gulf fixed."

And again, after further discussion

"We are now in a position to distinguish clearly between the offense of carrying contraband and the offense of engaging in unneutral service. They are unlike in nature, unlike in proof, and unlike in penalty. To carry contraband is to engage in an ordinary trading transaction which is directed toward a belligerent community simply because a better market is likely to be found there than elsewhere. To perform unneutral service is to interfere in the struggle by doing in aid of a belligerent acts which are in themselves not mercantile but warlike." The acts generally regarded as in the category of unneutral service have been enumerated as:

(1) The carriage of enemy dispatches.

(2) The carriage of certain belligerent persons.

(3) Aid by auxiliary coal, repair, supply, or transport ships.

(4) Knowing cooperation in the transmission of certain messages and information to the belligerent.

Knowing cooperation in the transmission of certain messages for the belligerent renders the ship liable to penalty. Such an act as the repetition of signals would fall in this class.

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