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Government, by means of diplomatic measures, to pay an indemnity to the Prussian Government, and on obtaining the same, Frederick removed the attachment which had been placed on money owing to English creditors, and awarded the indemnity to those Prussian subjects who had been injured by the findings of the English prize court. The efficacy of the judgment in prize, however, was not affected by the negotiations between the two governments. 87
In conclusion, it may be said as to America that Wheaton, who was the official American negotiator for the adjustment of the difficulty arising out of the capture of American ships and cargoes by Denmark during the Danish-English War at the beginning of the nineteenth century, made these principles the foundation for the American claims and for the subsequent negotiations. He relied upon them, although he recognized the continuing force of the decrees of the Danish prize courts in the several instances as settling the question of the loss and transfer of property in the prize. This did not deter him, however, from insisting that the Danish Government should indemnify the United States as the representative of its injured citizens, because, according to the American point of view, justice had not been done its citizens, and the Danish Government was responsible, according to international law, for the damage occasioned. 88 This case is not to be confused with the controversy over the Bergen Prizes, mentioned in another connection.
Accordingly, nothing remains for the former English owners of the Appam but to await the decision of the German Prize Court, and to leave it to the British Government whether any claims may be brought through diplomatic channels against the Imperial German Government which is responsible for the judgment rendered by its court.
DR. ARTHUR BURCHARD.
87 Wheaton, p. 679; Tredelenburg, pp. 8, 16.
88 Ibid., pp. 681-682.
THE APPAM CASE
The arrival of the fine British passenger vessel Appam at Newport News on January 31, 1916, in charge of a German prize crew and with about four hundred and fifty British subjects, passengers and sailors, including the Governor of Sierra Leone and some other prominent officials, not only created a picturesque situation, but raised some very important problems of international law.
The activities of the British Navy had practically cleared the seas of German raiders and it was not until the arival of the Appam that the exploits of the German cruiser Moewe were revealed. This active and intrepid belligerent, escaping the blockade in the North Sea, had captured and destroyed some fifteen merchant vessels during a cruise lasting several months and finally returned unscathed to her home port in March, 1916. The Appam was, when captured off the West Coast of Africa, 1590 miles from Emden, the nearest German port, 130 miles from Punchello in the Madeiras, the nearest available port, 1450 miles from Liverpool, and 3051 miles from Hampton Roads. The Appam carried a gun, but she made no resistance to capture. The commander of the Moewe placed Lieutenant Berg, an officer of the German Naval Reserve, on board as commander, together with a crew of twenty-two men. Lieutenant Berg placed bombs in various portions of the vessel and informed the officers and crew that in case of any trouble the vessel would immediately be blown up. The German crew did not operate the vessel, but merely navigated her and acted as an armed guard under whose vigilant firearms the British crew and especially the engine room force were kept at work until the vessel came into the harbor of Hampton Roads, where she arrived on January 31, in first-class order, seaworthy and supplied with provisions. The prisoners brought in by the Appam were released by the United States Government. Berg reported to the Collector and filed with him a copy of his instructions from the commander of the Moewe. These brief instructions were a most
important factor in the case. They directed Berg “to bring this ship into the nearest American harbor, and there to lay up."
Subsequent to the arrival of the Appam the German Ambassador informed the State Department that the Appam was not an auxiliary cruiser, or a tender, but a prize, and claimed that she should be allowed to remain in an American port in accordance with Article XIX of the treaty with Prussia of 1799. The American Secretary of State in a careful and lucid opinion held that article of the treaty inapplicable and found no warrant in international law for the Appam's entrance into an American port.
On February 16th, sixteen days after the arrival of the Appam in Hampton Roads, the owner filed a libel to recover the vessel on the ground that she was in American waters in violation of the law of nations and the neutrality of the United States. The Prize Master and German Vice-Consul, appearing as claimants and respondents, claimed on behalf of the German Government that the Appam was brought there in reliance upon the treaty with Prussia and, moreover, that under general principles of international law she was entitled to stay an indefinite time in an American port. The institution of prize proceedings in the competent German court was also pleaded, and it was claimed that the American courts were without jurisdiction.
The case was fully tried and argued before the United States District Court, which held that the court had jurisdiction and that the Appam, having come into an American port in violation of American neutrality, should be released to her former owners. The case was appealed by the respondents to the Supreme Court of the United States. The holding of that court was that the decisive questions in this case resolved themselves into three:
1. Was the use of an American port, under the circumstances shown, a breach of this nation's neutrality under the principles of international law?
2. Was such use justified by existing treaties? 3. Was there jurisdiction over the Appam and her cargo in a Court of Admiralty of the United States?
All of these questions were answered in favor of the owners of the vessel and cargo; the judgment of the District Court was affirmed,
and the interesting and important questions involved set at rest so far as the United States was concerned. The opinion of the court is unanimous and the reasons for its decision are precisely and pithily set forth by Mr. Justice Day. I can here do little more than amplify some of the reasoning of the decision.
A very elaborate argument in both courts turned upon three questions:
(a) The rule of international law as to the treatment to be accorded to prizes in neutral ports prior to condemnation.
(6) The effects of the Prussian treaty upon the status of such ships in American ports, and
(c) The jurisdiction of the courts of the United States to pass upon the question and their power to release the vessel to the former owners.
It was contended by the German Government that under the general rules of international law any nation might permit a belligerent to send prizes into its ports for sequestration and that such prizes might remain indefinitely in such ports without interference from the local jurisdiction. It was admitted that a nation might by proclamation prior to the outbreak of hostilities announce that its ports would not be open to receive prizes, but it was claimed that in any other event prizes should be accorded asylum.
It appears to me that the German contentions ignored the development of international law in this respect, and especially the position assumed by the United States in developing the rights and duties of a neutral. The whole question was fully discussed at the Hague Conference of 1907 and the result was the provisions of Articles 21, 22 and 23 of Convention XIII. These articles read as follows:
ARTICLE 21. A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions. It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral Power must order it to leave at once; should it fail to obey, the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew.
ARTICLE 22. A neutral Power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in Article 21.
ARTICLE 23. A neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought
there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports. If the prize is convoyed by a warship, the prize crew may go on board the convoying ship. If the prize is not under convoy, the prize crew are left at liberty.
It is clear that had all the Powers ratified these three articles, the United States would have had it in its power to allow vessels to be sequestrated in its ports, but this, it would seem, on the face of Article 23, would have required positive action preliminary to the outbreak of hostilities. The action of the United States, however, in regard to this convention was highly significant and emphatically indicates the policy of this nation on the question. The American delegates in their report to the Government stated as to Article 23:
This is objectionable for the reason that it involves a neutral in participation in the war to the extent of giving asylum to a prize which the belligerent may not be able to conduct to a home port. This article represents the revival of an ancient abuse and should not be approved.
The delegates, therefore, refused to approve Article 23, but approved Articles 21 and 22. These articles were ratified by the Senate of the United States and the act of ratification states: “That the United States adheres to the said Convention, subject to the reservation and exclusion of its Article 23."
This demonstrates the view of the Executive and of the Senate, that is, of the treaty-making power, as to the rule approved by the Government of the United States. This action of the treaty-making power is in accordance with the precedents of the United States and with the spirit shown by our government since its foundation in protecting its neutral rights. The rule, however, preventing a belligerent from using a neutral port as a place of deposit for its spoils is an ancient one. It may be found in old French ordinances of the sixteenth and seventeenth centuries. In 1658 the States General of Holland declared in favor of the rule, and “That if any one should act to the contrary, the prize should be restored to the former owner as though it had never been taken."
The distinction found in Article 21 of the Hague Convention is nevertheless always made that a vessel taking refuge from the weather, or when short of provisions, may seek temporary shelter in a neutral port. This is based upon grounds of humanity.