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Kirkenes, and was to be delivered to V. V. W. Van Drich and Stoomboot en Transport on der Nemingen, both neutrals, but it is contended that Section 3 of the Order in Council, dated March 11, 1915, warranted interference with the ship and her cargo by his Majesty's Navy on the voyage to Rotterdam. The President's directions as to freight were that "the fair freight must be paid to them, having regard to the work which they did," the principle which he had laid down in the Juno (1 Trehern 151) being, in his opinion, applicable. The claim for detention is in truth a claim for damages. for interfering with the completion of the chartered voyage, for it is admitted that delivery was taken at Middlesborough with reasonable dispatch. That part of the claim which relates to the ship's being ordered to call at Leith, and the claim for expenses incurred there, are claims for damages for putting in force the above-named Order in Council, for it is not suggested that the order to call at Leith and thence to proceed to Middlesborough was in itself an unreasonable way of exercising the powers given by the Order. The small claim for fees at Middlesborough seems to relate to an outlay incident to the earning of the freight which has been paid, and was covered by it, but, if it is anything else, it also is a claim for damages of the same kind. "Damages" is the word used by the President in his judgment, and, although it was avoided and deprecated in argument before their Lordships, there can be no doubt that it and no other word is the right word to describe the nature of the claims under appeal.
It is impossible to find in the express words of the Order any language which directs that such damages should be allowed, nor are the principles applicable which have been followed in the Anna Catharina (6 Ch. Rob. 10) and elsewhere as to allowance of freight and expenses to neutral ships, whatever be the exact scope and application of those cases. Again, with the fullest recognition of the rights of neutral ships, it is impossible to say that owners of such ships can claim damages from a belligerent for putting into force such an Order in Council as that of March 11, 1915, if the order be valid. The neutral exercising his trading rights on the high seas and the belligerent exercising on the high seas rights given him by Order in Council or equivalent procedure, are each in the enjoyment and exercise of equal rights, and, without an express provision in the order to that effect, the belligerent does not exercise his rights.
subject to overriding right in the neutral. The claimant's real contention is, and is only, that the Order in Council is contrary to international law and is invalid.
Upon this subject two passages in the Zamora (1916 2 A. C., 77) are in point. The first is at page 95, and relates to Sir William Scott's decision in the Fox (Edw., 311):
The decision proceeded upon the principle that, where there is just cause for retaliation, neutrals may by the law of nations be required to submit to inconvenience from the act of a belligerent Power greater in degree than would be justified had no just cause for retaliation arisen, a principle which had already been laid down in the Lucy.
Further, at page 98, are the words:
An order authorizing reprisals will be conclusive as to the facts which are recited as showing that a case for reprisals exists, and will have due weight as showing what, in the opinion of his Majesty's advisers, are the best or only means of meeting the emergency; but this will not preclude the right of any party aggrieved to contend, or the right of the Court to hold that these means are unlawful as entailing on neutrals a degree of inconvenience unreasonable, considering all the circumstances of the case.
It is true that in the Zamora the validity of a retaliatory Order in Council was not directly in question, but those passages were carefully considered and advisedly introduced as cogent illustrations of the principle, which was the matter then in hand. Without ascribing to them the binding force of a prior decision on the same point, their Lordships must attach to them the greatest weight and, before thinking it right to depart from them, or even necessary to criticize them to any great length, they would at least expect it to be shown either that there are authoritative decisions to the contrary, or that they conflict with general principles of Prize Law or with the rules of common right in international affairs.
What is here in question is not the right of the belligerent to retaliate upon his enemy the same measure as has been meted out to him, or the propriety of justifying in one belligerent some departure from the regular rules of war on the ground of necessity arising from prior departures on the part of the other, but it is the claim of neutrals to be saved harmless under such circumstances from inconvenience or damage thereout arising. If the statement above quoted from the Zamora be correct, the recitals in the Order in
Council sufficiently establish the existence of such breaches of law on the part of the German Government as justify retaliatory measures on the part of his Majesty, and, if so, the only question open to the neutral claimant for the purpose of invalidating the order is whether or not it subjects neutrals to more inconvenience or prejudice than is reasonably necessary under the circumstances.
Their Lordships think that such a rule is sound, and, indeed, inevitable. From the nature of the case the party who knows best whether or not there has been misconduct calling such a principle into operation, is a party who is not before the court, namely, the enemy himself. The neutral claimant can hardly have much information about it, and certainly cannot be expected to prove or disprove it. His Majesty's Government, also well aware of the facts, has already by the fact as well as by the recitals of the Order in Council solemnly declared the substance and effect of that knowledge, and an independent inquiry into the course of contemporary events, both naval and military, is one which a Court of Prize is but illqualified to undertake for itself.
Still less would it be proper for such a Court to inquire into the reasons of policy, military or other, which have been the cause and are to be the justification for resorting to retaliation for that misconduct. Its function is, in protection of the rights of neutrals, to weigh on a proper occasion the measures of retaliation which have been adopted in fact, and to inquire whether they are in their nature or extent other than commensurate with the prior wrong done, and whether they inflict on neutrals, when they are looked at as a whole, inconvenience greater than is reasonable under all the circumstances. It follows that a Court of Prize, while bound to ascertain, from the terms of the order itself, the origin and the occasion of the retaliatory measures for the purpose of weighing those measures with justice as they affect neutrals, nevertheless ought not to question, still less dispute, that the warrant for passing the order, which is set out in its recitals, has in truth arisen in the manner therein stated.
Although the scope of this inquiry is thus limited in law, in fact their Lordships cannot be blind to what is notorious to all the world and is in the recollection of all men, the outrage, namely, committed by the enemy upon law, humanity and the rights alike of belligerents and neutrals, which led to, and, indeed, compelled the adoption of some such policy as is embodied in this Order in Council. In con
sidering whether more inconvenience is inflicted upon neutrals than the circumstances involve, the frequency and the enormity of the original wrongs are alike material, for the more gross and universal those wrongs are, the more are all nations concerned in their repression, and bound for their part to submit to such sacrifices as that repression involves.
It is right to recall that, as neutral commerce suffered and was doomed to suffer gross prejudice from the illegal policy proclaimed and acted on by the German Government, so it profited by and obtained relief from retaliatory measures if effective to restrain, to punish and to bring to an end such injurious conduct. Neutrals, whose principles or policy lead them to refrain from punitory repressive action of their own, may well be called on to bear a passive part in the necessary suppression of courses which are fatal to the freedom of all who use the seas.
The argument principally urged at the Bar ignored these considerations and assumed an absolute right in neutral trade to proceed without interference or restriction, unless by the application of the rules heretofore established as to contraband traffic, unneutral service, and blockade. The assumption was that a neutral, too pacific or too impotent to resent the aggressions and lawlessness of one belligerent, can require the other to refrain from his most effective or his only defence against it, by the assertion of an absolute inviolability for his own neutral trade, which would thereby become engaged in a passive complicity with the original offender.
For this contention no authority at all was forthcoming. Reference was made to the Orders in Council of 1806 to 1812, which were framed by way of retaliation for the Berlin and Milan decrees. There has been much discussion of these celebrated instruments on one side or the other, though singularly little in decided cases or in treaties of repute, and, according to their nationality or their partisanship, writers have denounced the one policy or the other, or have asserted their own superiority by an impartial censure of both. The present order, however, does not involve for its justification a defence of the very terms of those Orders in Council. It must be judged on its merits, and, if the principle is advanced against it that such retaliation is wrong in kind, no foundation in authority has been found on which to rest it.
Nor is the principle itself sound. The seas are the highway of
all, and it is incidental to the very nature of maritime war that neutrals, in using that highway, may suffer inconvenience from the exercise of their concurrent rights by those who have to wage war upon it. Of this fundamental fact the right of blockade is only an example. It is true that contraband, blockade, and unneutral service are branches of International Law which have their own history, their own illustrations, and their own development. Their growth has been unsystematic, and the assertion of right under these different heads has not been closely connected or simultaneous. Nevertheless, it would be illogical to regard them as being in themselves disconnected topics, or as being the subject of rights and liabilities which have no common connection. They may also be treated, as in fact they are, as illustrations of the broad rule that belligerency and neutrality are states so related to one another that the latter must accept some abatement of the full benefits of peace in order that the former may not be thwarted in war in the assertion and defence of what is the most precious of all the right of nations, the right to security and independence. The categories of such cases are not closed. To deny to the belligerent, under the head of retaliation, any right to interfere with the trade of neutrals beyond that which, quite apart from circumstances which warrant retaliation, he enjoys already under the head of contraband, blockade and unneutral service, would be to take away with one hand that which has formally been conceded by the other. As between belligerents acts of retaliation are either the return of blow for blow in the course of combat, or are the questions of the laws of war not immediately falling under the cognizance of a Court of Prize. Little of this subject is left to Prize Law beyond its effect on neutrals, and on the rights of belligerents against neutrals, and to say that retaliation is invalid as against neutrals, except within the old limits of blockade, contraband and unneutral service, is to reduce retaliation to a mere simulacrum, the title of an admitted right without practical application or effect.
Apart from the Zamora, the decided cases on this subject, if not many, are at least not ambiguous. Of the Leonora (1918, p. 182), decided on the later Order in Council, their Lordships say nothing now, since they are informed that it is under appeal to their Lordships' Board, and they desire on the present occasion to say no more, which might affect the determination of that case, than is indispensable to the disposal of the present one.
Sir William Scott's decisions on the retaliatory Orders in Council