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While a state of war exists between the United States and foreign state X, it is found that a submarine telegraphic cable owned by a neutral company and connecting hostile state X with neutral state Y is used for the transmission of dispatches hostile to the United States.
The United States naval officer in command of the fleet cruising near protests to neutral state Y against such use of the cable.
The authorities of state Y claim that they have no responsibility.
It is not possible for the United States vessel to interrupt the cable within the three-mile limit of hostile state X. The cable is, however, grappled beyond the threemile limit in the high sea, and by order of the commanding officer is cut.
The neutral owners claim damages from the United States for injury to the cable and for interruption of service, alleging among other reasons in support of the claim that the act of the commanding officer in cutting the cable was contrary to Article V of the Naval War Code of the United States.
Was the action of the officer proper?
1. The action of the officer in protesting against the hostile use of the cable connecting enemy state X and neutral state Y was proper action. Such action is desirable whenever possible without undue risk, of which risk the officer himself must judge. This does not imply an obligation to give such official protest or responsibility in case such protest is not made.
2. The authorities of a neutral state may assume or decline to assume responsibility for a cable connecting the neutral with a belligerent state.
3. The cable service is to be considered, when hostile, in the category of unneutral service and the penalties. should be determined accordingly.
4. The neutral owners have no ground for claim for damages for injury to the cable or for interruption to service.
5. The Naval War Code of the United States makes no provision for such a case, but practice and general principles justify the action of the officer in cutting the cable anywhere outside of neutral jurisdiction.
NOTES ON SITUATION I.
SUBMARINE CABLES IN TIME OF WAR.
The protest. The propriety of the first act of the commanding officer in entering a protest against the use of the cable can be affirmed; the question of his obligation to do so must depend upon the policy of the United States and the urgency of cutting off the communication. It is sufficient to say that at the present time neither international law nor national policy makes such a protest obligatory.
The action of Brazil in 18981 and the occasional action of other neutral countries show a drift toward the assumption of governmental authority over such cable service as in time of war may involve violation of the strict neutrality of neutral territory. The development of this tendency to assume authority would give a basis for judgment of the obligation to give notification before cutting a cable.
The rule in regard to obligation might be stated as follows: In proportion as the neutral government assumes responsibility for the communication by cable between its territory and belligerent territory, in that proportion is it the obligation of the belligerent to notify the neutral (whenever possible without serious danger to the belligerent himself) that the belligerent proposes to interrupt freedom of communication by cable. The cable should then be used only under such restrictions as may be
Neutrality Regulations, Brazil, April 29, 1898, Art. V: "It is prohibited citizens or aliens residing in Brazil to announce by telegraph the departure or near arrival of any ship, merchant or war, of the belligerents, or to give to them any orders, instructions, or warnings, with the purpose of prejudicing the enemy." (Proclamations and decrees during the war with Spain, p. 14.)