And even assuming that the right of angary exists, no text writer has suggested that it applies to a case like the present one where no urgent military necessity exists."

Sir Samuel Evans in rendering judgment in the case expressed the opinion, however, that a belligerent may take by requisition not only neutral ships but other property upon compensation, and he cited many instances where in former wars such things as planks, sail charts, pitch, hemp, copper sheets, and foodstuffs belonging to neutrals had been handed over to the government pursuant to an order or declaration of the crown. As to the right of a belligerent government to requisition such goods while still in the custody of the prize court and before a final decree of condemnation had issued, there was an abundance of judicial precedent.

Upon appeal, however, the privy council overruled Sir Samuel Evans' decision on the latter point. The primary duty of the prize court (as indeed of all courts having the custody of property the subject of litigation), said their lordships, "is to preserve the res for delivery to the persons who ultimately establish their title."

After a lengthy consideration of the whole question the privy council came to the following conclusion:

"A belligerent power has by international law the right to requisition vessels or goods in the custody of its prize court pending a decision of the question whether they should be condemned or released, but such right is subject to certain limitations. First, the vessel or goods in question must be urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security. Secondly, there must be a real question to be tried, so that it would be improper to order an immediate release. And, thirdly, the right must be enforced by application to the prize court, which must determine judicially whether, under the particular circumstances of the case, the right is exercisable."

§ 119. Requisition by the United States and Great Britain of Dutch Merchant Vessels. In January, 1918, a temporary agreement was entered into between the American and Dutch governments under which the latter agreed to place at the disposition of the government of the United States a certain number of Dutch merchant vessels then lying idle in American ports because of the refusal of the American governinent to issue

1 Trehern, Cases, II, 26.

REQUISITION OF DUTCH SHIPS

175

licenses to them to depart with their cargoes, this because there was reason to believe that a portion of their cargoes would ultimately find their way to Germany. Under the arrangement the American government agreed to permit certain quantities of food, said to be needed by the people of Holland, to be shipped to the Netherlands, in return for which a certain number of Dutch vessels would be placed at the disposal of the United States for the transportation of food and other supplies for the Belgian relief commission and for the people of Switzerland.

In consequence, however, of the refusal of the German government to promise immunity to such vessels the Dutch government declined to carry out the terms of the agreement.1 Thereupon the President of the United States, by a proclamation of March 20, 1918, issued in pursuance of authority conferred by an Act of Congress of June 15, 1917, "in accordance with international law and practice" and in virtue of his powers as commander-in-chief of the army and navy, authorized the secretary of the navy to take over on behalf of the United States the possession of and to employ all such vessels of Netherlands registry lying within the territorial waters of the United States as might "be necessary for essential purposes connected with the prosecution of the war against the Imperial German government."

About the same time a number of Dutch vessels were taken over by the British government, the aggregate tonnage requisitioned by the two governments amounting approximately to 1,000,000 tons.

The "imperative military needs" of the United States, said the President in his proclamation, "required the immediate utilization of such vessels," and he added that "full compensation" would be made to the owners "in accordance with the principles of international law" and that "suitable provision would be made to meet the possibility of ships being lost through enemy action." 2 Mr. Balfour defended the British seizures on the ancient right of angary which he said was not obsolete and upon the general right of sovereignty over all persons and property within British jurisdiction and he gave similar assurances

1 As to the details cf. Scott, 12 Amer. Jour. of Int. Law, pp. 340 ff. Cf. also United States Official Bulletin of March 21 and April 12, 1918.

2 Text in Supp. to 12 Amer. Jour. of Int. Law, p. 259.

to those of President Wilson in regard to compensation and restoration of the vessels. The Dutch government formally protested against the action of the American and British governments as being in violation of the traditional friendship between the Netherlands on the one hand and the two requisitioning powers on the other and contrary to the ideals of right and justice, although it appears not to have contested the legality of the act of requisition. The American secretary of state returned a reply to the Dutch protest in which he asserted that the legal right of the United States was so well founded as to render unnecessary the citation of precedent and authority; he denied that the threatened action of Germany had anything to do with the refusal of the Dutch government to carry out its agreement to place a certain number of its vessels at the service of the United States and pointed out that the President had refrained for months after the outbreak of war from exercising his legal right to requisition the Dutch ships, in the hope of reaching a satisfactory agreement with the Dutch government. Finally, he added, the Dutch government still had left available ample tonnage for its own needs; shipping for these needs would not be detained in the United States; bunkering facilities would be afforded; adequate compensation would be paid the owners for the use of their ships requisitioned; those lost would be replaced, and a specified quantity of food and other necessities would be furnished to the people of Holland.1 The British government returned a somewhat similar reply and again reaffirmed its earlier contention that the seizures were entirely within the sovereign rights of the British Empire.2 It would seem that if the right of requisition is allowable at all under international law, the manner in which it was exercised by the United States and Great Britain in this case was not objectionable.3 § 120. The Right of Vessels in Their Ports. The right of a belligerent

Neutrals to Requisition Belligerent Action of Italy, Portugal, and Brazil. to requisition upon payment of com

1 See 12 Amer. Jour. of Int. Law, p. 352.

2 British State Papers, Misc. (1918), No. 5.

The right of requisition in such cases has been defended by high Dutch authority. Cf. for example General den Beer Poortugael's Het Internationaal Maritiem Recht, pp. 413 ff., from which various quotations are made by Scott in 12 Amer. Jour. of Int. Law, p. 353. But it is denied by the Dutch writer De Louter. See his Het Stellig Volkenrecht, Vol. II, p. 412.

REQUISITION OF BELLIGERENT SHIPS

177

pensation merchant vessels, whether enemy or neutral, found in his ports at the outbreak of war is well established by authority and practice. May a neutral government exercise a similar right in respect to the merchant vessels of a belligerent that have taken refuge in its ports to avoid capture by the enemy? This question was raised during the recent war by the action of the governments of Portugal, Italy, and Brazil in requisitioning German merchant vessels lying in their ports, while those countries were still officially at peace with Germany,1 although in the case of Italy and Germany diplomatic relations had been broken off. The German government does not appear to have protested against the Italian seizures, but an ultimatum was addressed to the Portuguese government demanding the restoration within forty-eight hours of the ships seized by it, and when the Portuguese government refused to comply with the demand, Germany declared war against Portugal. The German government regarded the seizure as a breach of neutrality and a violation of treaty stipulations between the two countries, in that the Portuguese government did not come to an agreement with the owners, in advance, as to the amount of compensation to be paid for the use of the ships. Again the German government charged that the purpose for which the seizures were made was not such as was contemplated by the treaty or by the general rules of international law governing the right of requisition.

The Portuguese government defended the seizure on the general principle of international law which allows a State to requisition for public use in case of emergency the property of any individual, whether citizen or alien, found within its jurisdiction, provided it makes compensation to the owners, and this the Portuguese government had solemnly agreed to do. In short, it had done nothing more than to exercise the right of

1 Of the thirty-seven German ships in Italian ports thirty-four were requisitioned by the Italian government in November, 1915, some months before the outbreak of war between the two countries, provision being made for monthly compensation to the owners, 23 Rev. Gén., 191, and 24 ibid., 351. According to the press despatches they were seized for use in the Italian merchant marine or for naval auxiliaries. All Austrian ships, some twenty-one in number, were similarly seized. (Clunet, 1915, p. 302.) But Italy was already at war with Austria, and under article 2 of the sixth Hague convention the right of the Italian government to requisition Austrian merchant vessels was incontestable.

VOL. 1-12

eminent domain in respect to the property seized, and this was an admitted inherent and sovereign right of all States. Moreover, the Portuguese government relied on article 2 of a treaty of commerce and navigation concluded between the two countries on November 30, 1908, which declared that ships as well as all other merchandise or property belonging to either party, found in the territory of the other, might be requisitioned for public use upon compensation previously agreed upon between the parties concerned. The only question, therefore, that could be raised was whether Portugal had exercised the right thus recognized in accordance with the procedure set forth in the treaty. As stated above, the German government denied that the commercial needs of Portugal were such as to require the requisition of so large a number of German ships and asserted that the real purpose of the seizure was to place the vessels at the disposition of Great Britain with whom the Portuguese government was in alliance, although at the time it was officially neutral. In the second place, the German government complained that the ships had been taken over by the Portuguese government before coming to an agreement with the owners in regard to the amount of the compensation to be paid, as was required by the treaty of 1908. To these complaints the Portuguese government replied that the number of ships seized was no greater than the urgent needs of its commercial marine and that they had been requisitioned without previous agreement with the owners because of the difficulty of negotiation and the necessity of immediate action, since the delays which such negotiations would have entailed would have given the crews an

The number of German ships seized by Portugal (decree of February 23, 1916) was reported to have been seventy-two. They were subsequently chartered to the British government on a rental basis of $7,000,000 per year.

In May, 1917, after having revoked its proclamation of neutrality issued at the outbreak of the war in Europe, the Brazilian government seized forty-two German merchant vessels which had taken refuge in the ports of Brazil. 45 Clunet, 166. Apparently there was no intention to confiscate the ships but only to requisition them for use in the coasting trade of Brazil. After the entrance of Brazil into the war against Germany many of the ships thus seized were leased to the French government (November, 1917). As in the United States the question of their ultimate disposition was not then determined.

1 Sir Edward Grey asserted in the House of Commons on March 14, 1916, that in fact Portugal, in view of her ancient alliance with Great Britain, was not strictly a neutral power.