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SEIZURES IN LAND AND NAVAL WARFARE DISTINGUISHED

BY MANLEY O. HUDSON

Professor of Law, Harvard University

Recent efforts to codify the international law of war have tended to differentiate more sharply between land warfare and naval warfare. But it is still frequently difficult to say where land warfare ends and naval warfare begins, and too little assistance is to be had from the few writers who have attempted to draw the line. The need of a clearly drawn line is evident when the capture of private property is being considered, for very different considerations apply in the two kinds of warfare. If a capture is governed by naval law, perplexing problems of prize court procedure may arise; but a seizure governed by land law is free from all necessity for prize court adjudication and confers a title which without more may be asserted in a neutral country. The applicability of the Hague Conventions may also depend on whether a seizure is governed by the law of land, or by that of maritime, warfare—the second Convention of 1899 and the fourth Convention of 1907 are strictly applicable only in land warfare, and the sixth and ninth Conventions of 1907 are applicable only in maritime warfare. Some general lines must, therefore, be drawn.

1 See Annuaire de l'Institut de Droit International, 1913, p. 182.

· The Thalia (1905), Takahashi, Russo-Japanese War, pp. 605, 617. But see the fourth voeu expressed by the 1907 Hague Conference, in which the Conference expressed the opinion that “the Powers may apply, as far as possible, to war by sea the principles of the Convention relative to the laws and customs of war on land.”

During the recent war, the question was more important with reference to the second Convention of 1899. Many of the belligerents had not ratified the fourth Convention of 1907, and by Article 2 it was applicable between the Powers which had ratified "only if all the belligerents are parties to the convention." But the second Convention of 1899 had been ratified by all the belligerents except Liberia and San Marino, omitting from the list of belligerents some of the new states which were signatories of the Treaty of Versailles, viz., Hedjaz, Poland and Czecho-Slovakia. The insignificance of Liberia and San Marino as belligerents in the war might justify ignoring them for the purpose of meeting the provision in Article 2 of the 1899 Convention that the annexed regulations "cease to be binding from the time when, in a war between contracting Powers, a non-contracting Power joins one of the belligerents.” Sir Samuel Evans in The Moewe (1914), 1 British and Colonial Prize Cases, 60, (1915) Probate 1, and the German Prize Court in The Fenix (1914), Entscheidungen des Oberprisengerichts 1, were willing to disregard the belligerency of Serbia and Montenegro in applying the sixth Convention of 1907. See also The Blonde (1922) 1 A. C. 313, 325; Garner, International Law and The World War, I, pp. 25 ff.

But the question then arises as to the extent to which the 1899 Convention has been superseded by the 1907 Convention. On this point, Article 4 of the 1907 Convention is not as clear as it might be, for it does not sufficiently definitely provide for the continuance of the 1899 Convention between all Powers which have ratified the 1899 Convention, even though some of them engaged in a war may also have ratified the 1907 Convention. The Conference 3 It is sometimes stated that the lower Danube had been neutralized by the Treaty of Berlin of 13 July, 1878. See Bonfils, Manuel de Droit International Public (7th ed.), p. 1133; Sec. 3 of the German Prize Code as in force on 1 July, 1915. But Article 52 of that treaty only forbids the erection of fortifications and the navigation of the river by vessels of war, 69 British and Foreign State Papers, 749, 765.

The question has arisen during the past war with reference to boats seized on inland rivers in Europe, and the extent to which military or naval operations on a river are to be governed by land or maritime law has given rise to some controversy. On large highways like the Danube, the seizure of river boats has raised the question in an interesting way, and the decision of Mr. Walker D. Hines, as Arbitrator under Article 300 of the Treaty of St. Germain, has established an interesting precedent. The question arose, during the recent war, also, in connection with British operations in German South-West Africa, and Italian operations along the Austrian coast.

CONVENTIONAL STATEMENTS AS TO THEATRE OF OPERATIONS

“International law as applied to warfare is a body of limitations, and is not a body of grants of power."For this reason, descriptions of the theatre of naval operations are usually exclusive and not inclusive-they simply exclude naval operations in the territorial waters of neutral states. The United States Naval Instructions of 1917 provide that “enemy vessels are liable to capture outside of neutral jurisdiction.” 5 The provision in some naval codes is that capture may be effected "in any waters except the territorial waters of a neutral state.” 6 The effect of such provisions is usually interpreted to be that capture may be effected either on the high seas or in the territorial waters of the belligerents. But the recent Italian rules restrict this to the high seas and “interior waters open to maritime navigation,” ? may have envisaged this result, Actes et Documents, I, 77, and it has been contended for by M. Fauchille, in 22 Revue Generale de Droit International Public, 106. Professor Garner's conclusion on this point seems to give insufficient attention to Article 4 of the 1907 Convention. Garner, International Law and the World War, I, p. 20. The editorial comment in 9 American Journal of International Law, 193, is more adequate.

* Walker D. Hines, Determination in the Matter of Questions Arising as to Danube Shipping (1921), p. 8.

6 Instructions for the Navy of the United States Governing Maritime Warfare, 1917, p. 26.

Holland, Manual of Prize Law, 1888, p. 1; Russian Reglement des Prises Maritime, 27 March, 1895, Art. 16; Japanese Prize Regulations, 7 March, 1904, Art. 2; Roumanian Prize Code, Art. 24, 5 Bulletin de l'Institut Intermediaire International, p. 342. The Turkish law of 31 January, 1912, explicitly authorizes seizure of boats and cargoes by sea or land forces, 5 Bulletin de l'Institut Intermediaire International, p. 137. Cf. Chinese Prize Regulations of 30 October, 1917, 26 Revue de Droit International Public, 496; Cheng, Judgments of the High Prize Court of China, p. 136.

? Italian Rules Governing the Exercise of the Right of Prize, 25 March, 1917, Art. 5. A French translation is published in Fauchille et Basdevant, Jurisprudence Italienne en Matiere Des Prises Maritime, p. xlix.

adopting the restriction embodied by the Institute of International Law in the Oxford Manual of Naval Law of 1913.8

The purpose of such definitions of the theatre of naval operations is usually to emphasize the impropriety of captures effected in the territorial waters of neutrals, and beyond this emphasis little attempt is made to describe precisely the geographical limits of naval capture as distinguished from seizure in land operations. As it is used in naval codes, the term “territorial waters' seems to cover inland rivers, although in some instances it may be confined to marginal seas. The generalization is sometimes drawn from these definitions that naval capture is limited to property at sea or afloat,10 and the conclusion is drawn that any seizure of property afloat must be governed by naval law. But this conclusion is hardly warranted by the expressions found in the naval codes, and it affords little assistance in the effort to determine whether seizures of river boats engaged in inland navigation should be governed by the law of land or by the law of sea operations.

CAPTURE OF RIVER BOATS

The question as to the capture of river boats must have arisen many times during the past century, yet court adjudications on it seem to be rare.11 The countries having navigable rivers and large river fleets have not often been invaded, and in the cases where river boats have been seized there has usually been no necessity for court proceedings. If the law of maritime capture applies, the necessity for prize court proceedings would exist only for the satisfaction of neutrals, for between the belligerents it would seem to be unnecessary; 12 if the law of land warfare applies to the seizure, on the other hand, there is no necessity for court proceedings even when a title is asserted in a neutral country.13 Perhaps boats on most rivers so seldom have occasion to navigate in neutral waters or to enter neutral ports that prize court proceedings seem superfluous, even if proper.

s Annuaire de l'Institut de Droit International, 1913, p. 610. See also the Report of the International Law Association, 1920, p. 169.

• Cf. Oppenheim, International Law (2 ed.), I, p. 235.
10 See Baty and Morgan, War, p. 338; Rivier, Droit des Gens, II, p. 341.
11 Cf. United States v. 269} Bales of Cotton (1868), 1 Woolworth, 236, 259.

13 This position was ably stated in Secretary Lansing's note to the British Government concerning The Farn, a British vessel captured by a German cruiser and brought into an American port during the days of American neutrality, as follows: "In the opinion of this Government an enemy vessel which has been captured by a belligerent cruiser becomes as between the two governments the property of the captor without the intervention of a prize court. If no prize court is available this Government does not understand that it is the duty of the captor to release his prize, or to refuse to impress her into its service.” 9 American Journal of International Law, Spec. Supp., p. 364.

i3 O'Neil v. Central Leather Co. (1915) 87 N. J. Law 552; Oetjen v. Central Leather Co. (1918) 246 U. S. 297; Ricaud v. Am. Metal Co. (1918) 246 U. S. 304, 250 Fed. 853; Terrazas v. Holmes (Tex., 1920) 225 S. W. 848; Terrazas v. Donohue (Tex., 1920) 227 S. W. 206.

ENGLISH AUTHORITIES English and American courts have often been called upon, however, to consider the limits of the jurisdiction of prize and admiralty courts. While such cases are not decisive of the question at issue, since admiralty and prize courts may also have jurisdiction over booty taken on land,14 they may afford some guide to be followed in distinguishing between land and naval capture.

Questions arising out of the division of prize money among captors are municipal matters, not depending upon international law. The municipal law concerning land warfare may provide for a distribution of booty similar to that of prize money. The jurisdiction of English prize courts clearly extends to captures made by naval expeditions on enemy territory.1 An early Order in Council 16 provided for the disposition of enemy ships taken in ports, creeks, or roads within English territory. The English Prize Act of 1864 17 expressly provides for land expeditions of naval or naval and military forces; 18 but English courts have seldom been called upon to apply it to such expeditions.

In the recent war the general question was raised in the case of The Roumanian, 19 in which oil from British vessels was seized after having been unloaded on a wharf in England. In the course of his judgment in the Privy Council, Lord Parker of Waddington dealt with the limits of maritime prize and stated that “the test ashore or afloat is not an infallible test as to whether goods can or cannot be seized as maritime prize”; and although he thought that the local situation of the goods at the time might be of importance, he concluded that "it is the seizure as prize and not the local situation of the goods seized which confers jurisdiction" on a prize court.20

14 Banda and Kirwee Booty (1866) L. R. 1 Adm. and Ecc. 109. The jurisdiction of prize courts in Germany seems more narrowly confined. Huberich & King, The Development of German Prize Law, 18 Columbia Law Review 503, 511.

15 Lindo v. Rodney (1782) 2 Douglas 613. Cf. The Thorshaven (1809) Edwards Adm. Rep. 102. In The Rebeckah (1799) 1 Christopher Robinson 227, the capture was made by naval forces from a land garrison.

16 In 1665-6, reproduced in 1 Christopher Robinson 231. 17 27 & 28 Vict. c. 25, $ 34. Cited by counsel in The Anichab (1919) Probate 329, 331.

18 The Feldmarschall (1920) Probate 289, will doubtless be a leading case on the law of joint captures by land and sea forces. See also The Dordrecht (1799) 2 Christopher Robinson 55; The Stella del Norte (1805) 5 Christopher Robinson 349.

19 (1915) Probate 26, (1916) 1 A. C. 124. Also reported in (1914) 1 British & Colonial Prize Cases, 75, 536. Cf. The Achaia (No. 2) (1915), 1 British and Colonial Prize Cases, 635; The Bawean (1918) Probate 58; The Batavier II (1918) Probate 66.

20 In The Geertruida (1917) Entscheidungen des Oberprisengerichts in Berlin, p. 302, & claim presented by the owner of a Dutch vessel sunk by a submarine was dismissed by the German prize court because its jurisdiction was held to be limited to cases where there had been a seizure as prize. But on the necessity of possession as a condition of prize court jurisdiction, see The Elbing (1921) 2 British Year Book of International Law, p. 183, and the comment by A. Pearce Higgins in ibid., p. 182.

In the case of In re Craft Captured on Victoria Nyanza,21 Lord Sterndale upheld as "legal according to the law of prize" the captures of German vessels made by British naval forces on an inland lake, Victoria Nyanza, to which no access from the sea is available for any vessels, but which in size is second only to Lake Superior among the fresh-water lakes of the world. The Victoria Nyanza was partly in British and partly in German East Africa, and the report fails to state where on the lake the seizures were effected. The court found that “there is no general principle excluding all captures on inland waters from the operation of the law of prize."

In The Anichab,22 a number of lighters and other harbor craft which had been seized by the South African forces on taking German ports were condemned as prize. It was held to be immaterial that the seizure had been effected by land forces; but it is to be noted that naval forces had cooperated in the hostilities. Lord Sterndale thought it immaterial also that craft “used for navigation upon the seas, not the high seas necessarily, but upon the seas, either coastwise or on the high seas, were at the moment in the water or on the beach.” He decided that craft did not cease to be subject to seizure by being beached. Some of the craft had been put on cars and transported inland, some as far as three hundred miles, by the retreating German forces, where they were seized by land forces six months later. These were treated as property on land, taken by land forces in land operations, not in “hot pursuit," and hence not “the subject of maritime prize." All of the craft in this case had been used in a sea-port. The case involves no question of capture on inland rivers, though the actual taking seems to have been effected in the vicinity of a river which was not "passable"; but it does evidence a limit on the application of maritime law to a capture effected on land by land forces.

COURT DECISIONS IN THE UNITED STATES

American courts have more frequently had occasion to deal with captures made on inland waters. The first case seems to have been W. B. v. Latimer,23 where a vessel apparently ocean-going was seized as prize in a navigable stream in Delaware and condemned by a court of admiralty. The Delaware Court of Errors and Appeals expressed the opinion that the question "prize, or no prize, belongs to the jurisdiction of the admiralty whether the capture be on the high seas, in ports, rivers or within the body of a country.” The next case was Brown v. United States, 24 in which an

21 (1918) 3 B. & C. Prize Cases 295, (1919) Probate 83. The Lord President referred to the Kangani and the Hedwig von Weissman (1917) Lloyd's List Weekly Summary, 23 March, 1917, p. 2.

22 (1919) Probate 329, (1922) 1 A. C. 235. 23 (1788) 4 Dallas 1. 24 (1814) 8 Cranch 110. Cf. Johnson v. 21 Bales (1814) Van Ness Prize Cases, p. 21. Many seizures must have occurred on the Great Lakes during the War of 1812. In The

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