the steamer was insignificant. He states that he advised him that steamer had been damaged, but that he not then had an opportunity to ascertain the extent of the damage. The seaman who was struck by a fragment of shell sustained severe flesh wounds.

"If the ship had intended to ram the submarine, she would not have stopped her engines and this must have been evident to the submarine commander. Naval authorities here agree that there could have been no danger of the ship ramming the submarine until it was headed straight for the submarine and was under power, and even then the submarine could have so maneuvered as to avoid collision. The Petrolite was two miles away from the submarine. The engines and funnel of the Petrolite were at the stern, and from the general appearance of the ship no experienced naval officer could have believed that it had opportunity or sufficient speed to attack even if it had been steaming directly toward the submarine. The conduct of the submarine commander showed lack of judgment, self-control, or wilful intent amounting to utter disregard of the rights of a neutral. "According to the sworn statements of the captain of steamer and a seaman who accompanied him to the submarine, the commander of the latter stated that he mistook the steamer for a cruiser. This statement is at variance with the statement in the Austro-Hungarian Government's note that the captain of the submarine asserted a false maneuver on the part of the steamer prompted the submarine to continue fire.

"The captain of the steamer swears that he informed the commander of the submarine that he had only sufficient provisions to reach the port of Algiers, and that he would deliver provisions only under compulsion. He states positively in his affidavit and in conversation with officials of the Department that he did not give provisions readily nor did he say it was the duty of one seaman to help another, and that he refused payment because he felt that he was being compelled to deliver food in violation of law. The statement of the captain of the Petrolite is entirely at variance with the report of the submarine commander. The correctness of the captain's opinion that the wounded seaman was held as hostage to guarantee the delivery of food seems clear.

Obviously the commander of the submarine had no right to order the seaman to remain on board. The fact that this order was given showed that the commander insisted that food was to be delivered to him, otherwise the seaman would naturally have accompanied the captain back to his vessel. The outrageous conduct of the submarine commander and all the circumstances of the attack on the Petrolite warranted the captain in regarding himself as being compelled in order to avoid further violence to deliver food to the commander of the submarine.

"In the absence of other and more satisfactory explanation of the attack on the steamer than that contained in the note addressed to you by the Foreign Office, the Government of the United States is compelled to regard the conduct of the commander of the submarine in attacking the Petrolite and in coercing the captain as a deliberate insult to the flag of the United States and an invasion of the rights of American citizens for which this Government requests that an apology be made; that the commander of the submarine be punished; and that reparation be made for the injuries sustained, by the payment of a suitable indemnity.

"Please communicate with Foreign Office in sense of foregoing.

"You may add that this Government believes that the AustroHungarian Government will promptly comply with these requests, in view of their manifest justness and the high sense of honor of that Government which would not, it is believed, permit an indignity to be offered to the flag of a friendly power or wrongs to its nationals by an Austro-Hungarian naval officer without making immediate and ample amends.1

"LANSING."

(White Paper, communicated by the Department of State.)

1 The case of the Petrolite is still unsettled (November, 1916).

PREEMPTION

In the course of the opinion in the case of the Zamora (see p. 502) Lord Parker, speaking for the Judicial Committee of the Privy Council, said: "Some stress was laid in argument on the cases cited in the judgment in the court below upon what is known as 'the right of preëmption,' but in their Lordships' opinion these cases have little, if any, bearing on the matter now in controversy. The right of preëmption appears to have arisen in the following manner: According to the British view of international law, naval stores were absolute contraband, and if found on a neutral vessel bound for an enemy port were lawful prize. Other countries contended that such stores were only contraband if destined for the use of the enemy government. If destined for the use of civilians they were not contraband at all. Under these circumstances the British Government, by way of mitigation of the severity of its own view, consented to a kind of compromise. Instead of condemning such stores as lawful prize, it bought them out and out from their neutral owners, and this practice, after forming the subject of many particular treaties, at last came to be recognized as fully warranted by international law. It was, however, always confined to naval stores, and a purchase pursuant to it put an end to all litigation between the Crown on the one hand and the neutral owner on the other. Only in cases where the title of the neutral was in doubt and the property might turn out to be enemy property was the purchase money paid into court. It is obvious, therefore, that this 'right of preëmption' differs widely from the right to requisition the vessels or goods of neutrals, which is exercised without prejudice to, and does not conclude or otherwise affect the question whether the vessel or goods should or should not be condemned as prize." (Times Law Reports, vol. XXXII, P. 444.)

It is to be regretted that the learned judge did not give his authorities in support of the statement that the British contention in regard to preëmption "at last came to be recognized as fully warranted by international law." In the case of the Neptune, which came before the International Claims Commission organized

in accordance with Article VII of the Anglo-American (Jay) Treaty of November 19, 1794, contrary opinions were expressed in arguments, which, as far as is known, have never been answered. (See Moore: International Arbitrations, vol. IV, p. 3843 ff.)

M. Kleen states: "The former custom of belligerents, practiced under the name of preemption, by which they take possession of innocent neutral goods for value but by force, claiming to act by reason of necessity or for the purpose of preventing the goods from falling into the hands of the enemy, is prohibited as contrary to the law of property and the law of nations.

"Only in cases where international law permits confiscation may it be replaced by preemption, out of consideration for extenuating circumstances."

In his subjoined historical account of the claim of preemption Kleen says: "Great Britain it was who in the eighteenth century reintroduced this method of exploiting (exploiter) neutral nations." (Translation from Richard Kleen: Lois et Usages de la Neutralité [Paris, 1900], pp. 704-05.)

It is true that the regulation adopted by the Institute of International Law at its Venice session, 1896, recognized a right of sequestration or preëmption, but the greatest authorities upon the subject of maritime law either were not present at the meeting or did not register their vote in favor of the proposal. It is with justice that Westlake says of the action taken: "The change was made in spite of strong opposition from the late Dr. Perels, who held an eminent position in international law both from his talents and from his being a director in the German ministry of Marine. And we are thus entitled to say that if the doctrine which had its origin in France has become widely spread, at least it cannot claim to be regarded as that of the whole continent." (International Law, Part II, War [Cambridge, 1913], p. 286.)1

1 For the discussion of preemption by the Institute, see Annuaire de l'Institut de Droit International, vol. XIII [1894–95), pp. 72-73, 123-24; vol. XV [1896], pp. 22227, 230-31.

§ 54. EXCEPTION OF HOSTILE SERVICE

SIMONSON'S CASE

United States and Mexican Claims Commission: Convention of July 4, 1868

A CLAIM was made for the value of some salt seized by the Mexican authorities.

Mr. Wadsworth, the United States Commissioner, said:

"The Government does not show any right in January, 1867, to confiscate salt sold to the parties in 1865, by one of the belligerents in firm possession at the time. Undoubtedly sales by a belligerent of his personal effects, fairly made, within his own or a neutral jurisdiction, will pass the title. In 1867 the Government sold the salt, and sold it to pay its troops. That was the trouble. I have observed that most seizures, sacks, and pillages were made by troops that had not been paid. That was the usual resource of the Spanish troops of Alva and the Duchess of Parma in the Netherlands. When their pay was behind and they could not wait any longer, they took a city and plundered it. The people called such an affair 'a Spanish fury.' In this case the city of Tehuantepec on the 7th of January, 1867, was sacked and burnt, and the population driven to the woods, Simonson's property going with the rest, and Woolwich's store suffering particularly. So the cargoes of salt were sold off in lots to pay the troops, and finally closed out to one purchaser. In my opinion the claimant is entitled not only to 1000 cagas, but one-half of 6666 cagas, at their value, with 6 per cent. interest."

It appeared that the salt was delivered by the imperialists to the claimant in repayment of money which he had advanced to them.

The Umpire, Sir Edward Thornton, held that under the circumstances the Mexican authorities were justified in seizing the salt in question, and that the Mexican Government could not be made responsible for the loss alleged to have been suffered by Simonson. (Taken textually from Moore: International Arbitrations, vol. IV, pp. 3724-25.)