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In cases where vessels are engaged in unneutral service the ordinary penalty is the forfeiture of the vessel so engaged. It is held that
"Submarine telegraphic cables between a belligerent and a neutral state may become liable to censorship or to interruption beyond neutral jurisdiction if used for hostile purposes. A neutral vessel engaged in laying, cutting, or repair of war telegraph cables is held to be performing unneutral service."
Capt. C. H. Stockton, U. S. N., says: "Besides the contraband character of the material of a telegraph cable, in use or en route, as an essential element of belligerent communication which renders it liable to seizure anywhere out of neutral territory, there is another phase of this question, and that is in regard to the nature of the service afforded by such a communication by a neutral proprietor to a belligerent.
"This service is in the nature of both an evasion of a blockade, and, what has been termed of late years, of unneutral service. It does not matter in this phase whether the cable be privately or state owned so far as the technical offense is concerned, though the gravity and consequences are naturally much more serious in the latter case. Let us take, as an instance, the case of a blockaded or besieged port, as Havana and Santiago were during the late hostilities. The communication of information, or of dispatches, or of means of assistance which can be made by such means, is an unneutral service, and would resemble also the violation of blockade by a neutral vessel carrying dispatches, the capture of which on the high seas outside of territorial jurisdiction would be a justifiable and indisputable act of war.
"Extend this to a country or port not blockaded or besieged, and you would yet find the cable, owned, let us presume, by a neutral, the means of performing the most unneutral kind of service, of a nature which, done by a ship, would most properly cause its seizure, condemnation, or destruction by the offended belligerent. * "When possible, cable communication generally should, of course, be kept open for commercial or other
Wilson & Tucker Int. Law, p. 310.
INTERRUPTION OF SUBMARINE CABLE SERVICE. 15
innocent intercourse, and in many cases a government censorship can meet the circumstances and requirements of the war and prevent injury to a belligerent.'
Whatever may have been the opinion of the officer as to the ground upon which he was cutting the cable, it was certainly not an act justified by the principles governing the rules in regard to contraband unless the interpretation be forced.
After the notification by the officer no innocent trade basis could be claimed, and whatever element of contraband there may have been before notification disappeared when the official protest was made.
If ship and cargo is liable to seizure for violation of blockade after official notification, then the cable is liable to interruption by analogy, but it is far better to put the use of the cable under such circumstances under its proper category, that of unneutral service, where the intent of the act rather than accidental circumstances is the determining factor in the treatment of the cable.
There remains possible, after one of the belligerents. is in position to take control of or interrupt a cable connecting a neutral and the other belligerent, the control or censorship of the cable by the neutral in a manner satisfactory to the first belligerent, the complete discontinuance of the cable service by sealing or otherwise, either by the neutral government or by the owners. None of these courses was followed.
The officer was fully justified in cutting the cable upon the ground that it was rendering an unneutral service.
The claim for damages.-The claim that the officer was acting in a manner contrary to article 5 of the Naval War Code of the United States can not be sustained. This code provides that in time of war, irrespective of their ownership, "submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy." While the code does not specify further what shall be the treatment of a cable connecting an enemy of
1 Submarine Telegraphic Cables in the Time of War. Proceedings United States Naval Institute, Vol. XXIV, 3, p. 453.
2 Article 5, (b).
the United States with a neutral and used to transmit hostile messages, the United States has not, in practice, regarded the cutting of such a cable outside of neutral jurisdiction as in anyway forbidden. It is taken as a matter of general acceptance that cables will be cut in the high seas. Article XV of the cable convention of 1884 provided: "It is understood that the stipulations of this convention shall in nowise affect the liberty of action of belligerents." Lord Lyons, representing the British Government, stated that "Her Majesty's Government understands Article XV in this sense, that, in time of war, a belligerent, a signatory of the convention, shall be free to act in regard to submarine cables as if the convention did not exist." The procès verbal of this convention shows that this was the general opinion of the representatives present. The Belgian representative interpreted the article as giving by inference the right "to cut submarine cables even though they landed on neutral territory." This same representative also maintained that "the convention has no effect upon the rights of belligerent powers. These rights would be neither more nor less extensive after the signature than they are now." There can be little doubt that in the opinion of these representatives submarine cables beyond neutral jurisdiction might be cut by a belligerent and that it was the expectation of these representatives that this would be freely done in time of war. Captain Squier,. writing of "The Influence of Submarine Cables upon Military and Naval Supremacy," after reviewing the operations of the United States in the Spanish war of 1898, uses such expressions as follows: "It appears that the searching for deep-sea cables in the high seas in the time of war, without an accurate chart of the location of the cables, is a difficult and very doubtful operation; also that submarine cables must in general be interrupted near their landing places, where their exact location can be determined with certainty. * ** Since submarine cables are so important a factor in national defense, they should be protected both at their shore landings and 1 Proceedings of the United States Naval Institute, Vol. XXVI, 4, pp. 620-622.
PARLIAMENTARY COMMITTEE REPORT.
on the high seas by military and naval force. We should be able, at the earliest date, to manufacture upon American soil deep-sea cables of the first class; be able to lay, maintain, and repair them in time of peace or war, by ships flying the American flag, and be prepared to adequately protect them upon the high seas and at their landing places, by military and naval force." This position of Captain Squier was quoted with approval in England, June 20, 1901, before the interdepartmental committee on cable communications.'
The report of this interdepartmental committee on cable communications, appointed by Parliament on November 29, 1900, was made on March 26, 1902, and distinctly admits that a considerable proportion of the cables touching British territory would be cut in time of war between Great Britain and a foreign power. It is also admitted that this will be so even though proper precautions may protect cables within the three-mile limit. The report (p. 15) says:
"The experience of the Spanish-American war while it brings into prominence the important influence which submarine cable telegraphy exercises in maritime warfare, also shows how large a part is played by chance in cable-cutting operations. We are convinced, however, that there is no serious physical difficulty in cutting cables, and that on the outbreak of war cables may be cut either in shallow water without, or in deep water with, special appliances. While, therefore, it is generally advisable that cables should be landed at fortified positions, where such exist, in order that the instruments and operating stations may be under protection, we would point out that the importance of fortifying the shore ends may be easily exaggerated, because the attempt to break the cable will probably be made at a convenient distance from the shore, beyond the range of guns.
"10. Nevertheless, the great and increasing range of modern artillery will afford, in ordinary cases, fair security against hostile enterprises, up to the three-mile
1 Minutes of evidence, 3335–3338.
limit of territorial waters, and thus protect the cables in shallow water where they are most vulnerable.
"11. In the second place, strategic arrangements must be made on the assumption that a considerable proportion of cables will be interrupted during war time; and a variety of alternative routes must be provided to all important British possessions and naval stations.
"13. Cables between Great Britain and British possessions may (a) touch only on British soil; (b) touch on the territory of foreign states.
"14. The latter, again, will, in time of war, further subdivide themselves into belligerents and neutrals. It will be the interest of the belligerents to interrupt or control, by censorship, the telegraphic communications of their adversaries even to the degree of occasioning detriment to neutrals, and of incurring liability to make compensation to them for arbitrary interference with their cables.
"15. On the other hand, it will be the interest of neutrals to maintain their telegraphic communications, both with one another and with the belligerents, even to the possible detriment of the latter.
"16. If we could accept the assumption that cables would not be cut in time of war, it is clear that for strategic purposes the all-British route would be for the best. * * *
"17. But, as we have already stated, we think that our strategic arrangements must be made on the supposition that a considerable proportion of cables will be cut.
"We thus arrive at two principles leading to diametrically opposite conclusions. The more probable it is that cables will not be cut, the greater the value of an allBritish cable. The more probable it is that they can be cut, the greater the value of a cable touching on foreign territory."
On page 42 of this report, in the summary of recommendations, is the statement that, "In view of the probability of cable cutting a variety of alternative routes should be provided wherever it is essential to secure telegraphic communication in time of war."