Hans Wehberg.

Capture in war on land and sea online

. (page 13 of 15)
Online LibraryHans WehbergCapture in war on land and sea → online text (page 13 of 15)
Font size
QR-code for this ebook


England there go sixty-five tons of the latter,
whilst in Germany it is only fifty-three tons of the
latter.

The fact must also be seriously considered that
the great dependence of English trade on America



176 CAPTURE IN WAR.

may be very unpleasant to Great Britain in case of
war at sea.

Of the total British imports, as lately as igoo,
more than a quarter came from the United States,
and even though of late the proportion has changed
to the advantage of England, the most essential
part of this danger is still present.

Germany is much more happily situated in this
respect, as she is not dependent in any particular
way on American products. The English Govern-
ment recognised this danger at the time of the
founding of the Morgan Trust, and liberally
supported the Cunard Line at that juncture so
as to make it independent of America. This is
especially noticeable, because the non-intervention
of the State in matters of trade and industry in
England in ordinary circumstances is proverbial.
But even in traffic with other countries the share of
the English flag is greater than the German. In
1902, England's participation in the seaborne
trade of other countries was greater than the
German in the case of

Russia by 4,727,522 tons.
France ,, 9,961,408 ,,
Holland „ 3,330,984 „

At the beginning of the last century England
was still in a position to export food-stuffs, whereas
now she can meet the demand by her own produce
only for about six or eight weeks. Three quarters
of the wheat and rye she uses, half the meat,



LAW OF PRIZE AT SEA. 177

a large portion of the vegetables and fruit, and the
entire supply of sugar, rice, sago, tea, coffee
and cocoa are brought from overseas. The whole
import of food-stuffs amounts yearly to fourteen
and a half million tons. Of this total nine and a
half millions are made up of the various kinds
of grain. Of wheat and rye the yearly consump-
tion is 5,700,000 tons, 4,370,000 tons being im-
ported, and only 1,360,000 tons produced in the
country. England furnishes approximately one
million tons of meat out of the yearly supply of
over two millions, whilst almost exactly a million
comes in the shape of cattle from abroad. In
181 5, England's demand for foreign bread-stuffs
was three per cent, to-day it is seventy-five per
cent. The English population increased in the
years 1865-1905 from twenty-nine to forty-two
millions, z'.e., by forty-five per cent., whereas the
rise of the import of wheat from thirty-five to one
hundred and twelve millions gives a percentage of
two hundred and twenty-two.

" If our commerce by sea is stopped now, we
perish by starvation " Boyd Kinnear confessed in
a supplement to the St. James's Gazette, as early as
October, 1886. England had to feel very bitterly,
notably in the Crimean War, the rise of the price
of wheat, and she grew in those days three times as
much wheat as now. Not a single English ship
was at that time captured by Russia, and yet the
price of wheat rose from fifty to seventy-five
shillings a quarter. Shortly before an outbreak

C.W, N



178 CAPTURE IN WAR.

of war there always arises a specially strong demand
for wheat.

All dealers in grain are bound on the outbreak
of war to buy up as much as possible of the avail-
able supply of cereals, in order to draw as great a
profit as possible later from the necessities of the
belligerents. It has been repeatedly discussed
whether the impending danger should not be
averted by the creation of stores of grain, such as
have long existed in Gibraltar and Malta, but
hitherto no conclusion has been reached.

In England, as almost everywhere else, the
number of workers who take to agriculture
grows constantly smaller. In 185 1 there were in
England and Wales, out of every 1,000 inhabi-
tants, 106 so employed, but now there are not
even thirty.

Added to which there are many branches of
manufactures — taken roughly, employing half the
population — devoted to the working up of raw
stuffs, and if their import was successfully prevented
many factories would have to close. An instance
of this was quoted above from the War of Secession.
For it stands to reason that by the sudden barring
of export and import, trade and industry are quickly
disturbed. Wilkinson, in his essay, " Does War
Mean Starvation ? " contended that in the event of
war the greater portion of the factories that work
up foreign raw material or supply articles of export
would have to be closed. At the same time the
great decrease in imports would entail a general



LAW OF PRIZE AT SEA. 179

rise in prices and a dearth of other necessities of
life as well. Captain Stewart Murray estimates
the number of workmen who would be without
bread in England during a war at not less than
thirteen millions. Cotton and silk notably England
obtains wholly from abroad, and whereas a
generation ago it was the first iron country in
the world, and only imported some 2 per cent, of
its ore, it has now to bring in some 50 per cent.

All these facts acquire enhanced importance
when one remembers that, in the absence of bind-
ing treaties, England's commercial relations with
civilised powers lack reciprocity, and that the bulk
of her export trade, therefore, tends more and more
towards foreign markets, subject to the most violent
fluctuations.

England should, moreover, remember the extra-
ordinary injury which the Boer War inflicted upon
her commerce, as a consequence of which the
collective share of other nations in her seagoing
trade has increased.

The abolition of the law of prize would, therefore,
be overwhelmingly advantageous to England. This
view is also that of v. Halle.^ He even expresses
the opinion that without simultaneous abolition of
the law of blockade all countries except England
would only be hampered in their conduct of war,
while private individuals would be none the safer.
Yet this is only an exaggeration of an idea that is

^ " Handelsmarine und Kriegsmarine," p. 67.

N 2



i8o CAPTURE IN WAR.

right in itself. Even a practical man like Admiral
Valois^ is of opinion that the application of the law
of prize by the weaker Powers would very greatly
injure England. Japan, for that matter, is in a
similar position to England, whilst America,
France, and Germany would not derive much
advantage from the abrogation of the law.

Thus the upshot is that the very country that
upholds the right would reap the greatest advan-
tage from its abolition. This fact is very peculiar,
and one can well understand Frhr. v. Schleinitz's
proposal,^ like that of Hautefeuille in 1868, that
several countries should mutually pledge them-
selves jointly to treat as an immediate casus
belli any future failure by England or any
other Power to respect private property in naval
warfare.

In 1907 England^ sought to justify her adverse
attitude towards the American proposal for the
abrogation of the law of prize by pointing out that
the right could only be abolished simultaneously
with the right of blockade. As long as the latter
remained to the fore ships would constantly be
searched, and many contentions would arise as to
whether a blockade was effective. As a result of
such displays, the belligerent considering himself
aggrieved by the other would, of course, cease to
observe the inviolability of private property at sea.

^ " Deutschland als Seemacht," p. 76 ; so also, Niemeyer,
' Marine Rundschau," 1906, p. 1107.
2 " Deutsche Reme" for 1905, p. 184.
s Prot. III., pp. 788,832.



LAW OF PRIZE AT SEA. i8i

Even if it is true that there is a connection
between the right of blockade and that of prize,
I still think that the English dread is exaggerated,
and cannot justify the retention of the latter
right.



CHAPTER XIII.
SUGGESTIONS FOR REFORM.

Manifold proposals have already been made for
the amendment of the law of prize. Before these
are discussed it must be pointed out that only with
difficulty can private insurance fully make good
the losses and damage to ship and cargo resulting
from war at sea. Hence it has been proposed that
insurance against naval war should remain a private
transaction only until the premiums rise to 2\ per
thousand. From that point on, the State should
intervene and receive a premium of 2^ per thousand
for taking over the risk.

Speaking generally, marine insurance presents
such a tremendous risk that even in the eighteenth
century several adventurers combined jointly to
sustain the dangers which one alone could not
easily meet. With this is also connected the fact
that re-insurance is found hand in hand with marine
insurance at the very beginning. In time of war
the risk grows so vastly that the greatest private
companies cannot always bear the loss.

I. In 1875 Lorimer proposed, in two letters to
the Times, a system of State insurance, and justified
his view as follows : " If the conduct of war should



SUGGESTIONS FOR REFORM. 183

demand that private belongings be violated with-
out fault on the part of their owners, the State
which has undertaken the war must in equity itself
bear the risk by insuring the owner against the
results of the said war." ^ This proposal is so far not
reasonable that individuals can at most only claim
compensation for damage, and that, on the other
hand, there can be no question of insurance, seeing
that on the strength of the Lorimer proposal there
is a total lack of the necessary condition of
insurance companies, viz., the premiums. But this
inexactitude in the method of expression should
for that matter carry no weight in considering the
value of the proposal. What Lorimer meant is
clear : the State is to recoup all shipowners for the
loss resulting from the law of prize. Gessner
objected that recognition of such a duty of com-
pensation on the part of the State would call into
being endless speculation in purposely permitting
the enemy to capture the speculator's ship, as Baron
V. Marschall insisted in 1907.^ But assent cannot
be given to that objection. The State would,
doubtless, only repay the definite loss, i.e.^ the value
of the ship and cargo, not the loss of present and
future profits, e,g.^ from valuable transactions.
Before new ships take the place of those lost there
is time for other lines to attract trade to themselves.

' Cf. Briiders, " Zeitschr. fiir d. ges. Versicherungswissen-
schaft," 1902, p. 142: "The immediate obligation to inter-
vene in full measure against the results of war rests with
the State, i.e.^ the citizens collectively."

''■ Trot. III., p. 906.



i84 CAPTURE IN WAR.

An owner would thus think twice before he let a
ship of his be captured, just to receive the full
value of a fresh ship, but no compensation for the
lost connection or orders. The State, moreover,
would make no compensation if it could prove the
deliberate intention of bringing about a capture.
Strict enactments with a view to the punishing
of anyone who causes an insured vessel to sink
or run ashore, such as the Germans have in
Sec. 265 of the Criminal Code, would have their
effect.

Recently it has been justly pointed out that
owners of cargoes from foreign countries could
ship the same under British colours and interpolate
some sort of an owner in the cargo-note in order to
throw the risk on the English Government, and
that it would further easily be possible to claim
compensation for any mishaps arising from the
dangers of the sea by asserting that they were
brought about by the war. From the standpoint
of the law of nations, Klobukowski ^ replied to
Lorimer's proposal that the undertaking of such a
pledge was the business of an individual State and
not of international law. That is right, but did
Lorimer really regard his theory as within the
bounds of the law of nations ? Bluntschli ^
advances the opinion that no country in the world
ever acknowledged a legal obligation to replace loss
incurred by its subject owing to a war. This is

1 P. 69.

2 3u1., p. 154.



SUGGESTIONS FOR REFORM. 185

inexact^ as, after the war of 1870-71, shipowners
had the damage caused them by the enemy repaid
to them by the Empire out of the war indemnity.
At that time Art. 13 of the Peace of Frankfort
provided that France was to pay compensation to
the Empire for the ships captured. A sum of
2,8000,000 thalers was assigned for the purpose
out of the Imperial Liquidation Fund ^ for Ship-
owners, out of which two millions fell to them,
700,000 to the cargo-owners, and 100,000 to the
crews. Besides this, three millions were paid for
the hire and keep of crews of German ships shut
up in foreign harbours. Nevertheless, a claim on
the part of owners for compensation for the same
in home ports was not allowed. The reason then
adduced was that detention in a foreign port was
much more detrimental than being laid up in a
home port. For one thing, the vessel at home
enjoyed legal protection, and, besides, the crew
could be dismissed. These two reasons are not
quite convincing. The shipowner might well be
glad that the Empire made itself responsible. It
should be noted that no insurers who had suffered
loss by paying insurance due to the capture of
German ships got anything. It was rightly
pointed out^ that they had made a speculation of
war and, therefore, must bear the loss.

1 Remember, too, the contributions and requisitions in
land warfare : see above.

* Peters, II., p. 185.

' Girtanner holds differently, " Assekur-Jahrbuch," 1900,
pp. 130, 131 ; also Plass, p. 477.



i86 CAPTURE IN WAR.

It is of interest to mention in this connection
that with regard to the Turkish boycott of Austrian
goods in the winter of 1908-9, the project of the
Austrian Government's compensating the affected
industries was mooted.

A proposal put forward by Renault in 1907/ at
the Hague, touching " participation by the State in
losses by capture," to which Austria had suggested
amendments, was not adopted.

The proposal that the State be bound to com-
pensate has often been made also in the form that
the cost of insuring against war risk should be
repaid to the owner or merchant.

II. The question of a real Government insurance
against war at sea — no mere duty of replacing loss
— was first mooted in Portugal in 1375, in Ham-
burg in 1622, and in Holland in 1629. In quite
recent days England had this proposal sifted by a
Royal Commission.'-^ Although this Commission
arrived at no decision, in the course of its proceed-
ings it made various very interesting suggestions.
One of them starts from the principle that Govern-
ment war insurance should be free of compulsion,
but admission to it be open to shipowners. All
ships are to be insured that are plying between
England and foreign ports, and all cargoes owned
by Englishmen that come into port in English
ships. On the other hand, such ships are not
to be insured as ply between neutral ports, or

1 Prot. III., pp. 794, 809, 905 etseq., 1149.

2 cf. Manes in " Tag " of July 21st, 1908.



SUGGESTIONS FOR REFORM. 187

between a neutral and a colonial port. In the
same way cargoes carried in English ships from
England to the colonies and neutral ports are
excluded. The State insurance office would be in
close connection with the Marine Department of
the Board of Trade, and entitled to impose
regulations on merchant ships with regard to their
sailing. Those failing to obey the instructions of
the insurance office were to lose the right to com-
pensation. All damage was to be made good
which was inflicted on the ship and cargo by the
enemy, or by the Government for purposes of
defence. The amount of the compensation was to
be fixed by a mixed committee. Further, the
cost of such Government war insurance is put
by the Commission at twenty-five millions sterling
in a single year.

Now, as regards my attitude towards the question
of State war insurance, not to say State obligation
to compensate, I consider it the duty of Govern-
ments, as long as they uphold the right of prize, to
protect trade against the dangers of naval war.
Whether, on the part of the State, compensation
for loss or insurance is preferable, is a question
which cannot be answered within the narrow
limits of this essay. To do so needs such
earnest study as the English Commission gave it,
setting forth the results in 1,034 closely printed
pages. The majority of the witnesses expressed
themselves at the time in favour of compensation.

III. Another suggested reform has always found



i88 CAPTURE IN WAR.

many advocates, being based on the principle that
with the mere seizure the aim of the law of prize
has been attained, and so ship and cargo will have
to be given back later. Even Christian Wolf
expresses this view in a quite general way. He
considers that every belligerent may seize the
enemy's chattels so as to force his opponent to
peace, but that on the conclusion of the war he
must restore them all. The same standpoint was
taken up by the Russian Professor Kachenovski, in
his work " Prize Law." He understands by the
immunity of private property not the complete
freedom of commercial traffic, but the substitution
of temporary detention, not outlasting the war,
for the quite unnecessary confiscation of private
vessels. The more recent writers also, such as
Heffter, de Boeck, Bonfils, Bluntschli, Ropcke,
and Hammann, call for a reform of that nature.
Admiral Valois^ raised against this proposition the
objection that in view of the large profit which
commercial enterprises usually brought in, a mere
passing retention would not have a deterrent effect.
As a matter of fact, it cannot be denied that such a
revision of the law of prize would rob it of much
of its harmfulness.

Renault, in 1907,^ drew attention to the great
difference in this respect in the situation of countries
with numerous harbours as compared to the
countries with only a few. That is, perhaps, really

* Ibid., p. 74.

2 Prot. III., p. 481.



SUGGESTIONS FOR REFORM. 189

the most valid objection to this proposed reform.
The countries which could not rapidly take a ship
into port, and must therefore sink it, would have
to pay compensation after the war, and that
necessity would naturally fall less heavily on those
with numerous anchorages. Van den Heuvel's
suggestion,^ however, that the argument that all
principles of naval warfare have a different effect
on different countries, does not overcome this
objection. The proposition has, moreover, the
disadvantage that the estimating of the amount of
compensation would lead to many disputes, which
would be too great a burden thrown on the
International Prize Court.

In spite of these objections we must hold to the
contention that war is not directed against indi-
viduals, and that where a necessity of war, even
though wrongly alleged, dictated the capture,
compensation must ensue.

A proposal tending in this direction,^ made
by Belgium, and supported by Holland and other
Powers, at the second Hague Peace Conference,
viz., " Substitution of sequestration for confisca-
tion," was not adopted. By this proposal the
capturing Power was to be entitled, under certain
conditions, to sink or to sell the enemy's merchant
ships, and always to be allowed to apply them to
meeting its own needs. After the conclusion of

1 Ibid.

2 Prot. I., p. 249 ; III., p. 806 et seq,, 840 et seq., and 1 145
et seq.



igo CAPTURE IN WAR.

peace the ships were to be restored, and that usually
at the very place where they originally lay. There
should be no obligation to compensate for the use or
the sinking of them, provided that the captor Power
and its representatives acted according to law. It
was further laid down that the proceeds from the
sale of ships or merchandise should be handed over.
It was also provided that on the conclusion of
peace the country to which the injured merchants
belonged might take over the entire liability of the
other country for compensation. Among the
amendments to the Belgian proposal which
Holland brought forward, the peculiar clause which
provided that the capturing Power should be
entitled to demand from the owner of the ships
which it held captive the amount of the cost of
such detention as a species of contribution, was
particularly noteworthy as wholly misinterpreting
the idea of compensation. It was also proposed
by Holland that in case of the sinking of a vessel
the owners of the neutral merchandise on board
that vessel should be compensated " at the earliest
opportunity," and not merely " at the conclusion
of hostilities." Holland also wanted, as a corollary
to another proposition brought forward by herself,
and already mentioned, to bar compensation for
sinking or loss, provided that the vessel had no
guarantee from its country of origin that it should
not be used for military purposes.

IV. My own advocacy of the entire abrogation
of the law of prize at sea needs no further justifica-



SUGGESTIONS FOR REFORM. igi

tion after the enunciation of the principles already
maintained. In spite of all past failures one may,
believing in the continued evolution of all human
institutions, express the hope that at no very
distant date, under the firm guidance of North
America, the Powers will pursue the course laid
down for them not only by humane considerations,
but also by modern conceptions of the nature of
war.



BIBLIOGRAPHY/



V. Arnim, "Handelsangriff und Handelsschutz einst und

jetzt" in " Marine-Rundschau," 1907, p. 1404.
Askevold, Seebeuterecht, "Ethische Kultur," i. October,

1908.
Attlmayr, Das Internationale Seerecht. Vienna, 1903.
Aube, A terre et a bord. Paris, 1884.
V. Bar, Die Unverletzliclikeit des Privateigentums im Seek-

riege, "Die Nation," 1906, p. 134.
V, Bar, Die Haager Friedenskonferenz, "Marz," i. June,

1907.
Baumgarten-Meszleny, Kartelle und Trusts, Berlin, 1906.
Benedix, De praeda, Uratislaviae, 1874.
Bentwick, The Law of Private Property of War. London,

1907.
Bergbohm, Die bewaffnete Neutralitat 1780 — 1783. Berlin,

1884.
V. Bloch, Der Krieg. 4 volumes, Berlin, 1899.
Bluntschli, Das moderne Volkerrecht der zivilisierten

Staaten. Nordlingen, 1878.
Bluntschli, Das Beuterecht im Kriege und das Seebeute-
recht insbesondere. Nordlingen, 1878.
Boeck, Propriete privee ennemie sous pavilion ennemie.

Paris, 1882.
Boidin, Le lois de la guerre et les deux conferences de la

Haye. Paris, 1908.
Bonfils, Manual of Political Economy.
Borckenhagen, Zuni Studium der Seekriegsgeschichte,

"Marine-Rundschau," Vol. VL, p. 185.
Bry, Precis elementaire de droit international public. 5th

Edition. Paris, 1906.

* Some further indications appear in the text. Works
dealing purely with political economy and insurance law
have been consulted only with regard to Chapter 4.
c.w. o



194 BIBLIOGRAPHY.

Biisch, Ueber das Bestreben der Volker, einander in ihrem

Seehandel recht wehe zu tun. Hamburg, 1800.
V. Bulmerincq, Das Volkerrecht oder das internationale

Recht. Freiburg i. B., 1884.
Calvo, Le droit international theoretique et pratique, 3rd

edition, Vol. III. 1880.
Carpentier, Les lois de la guerre continentale. Paris, 1904.
V. Chlumecky, Der Krieg in Ostasien und die Reform des

Seekriegsrechtes auf der kiinftigen Haager Konferenz,

" Zeitschrift fiir das Internationale Privat- und Oeffent-

liche Recht der Gegenwart." Vol. XXXIII. , section 4.
V. Clausevvitz, Vom Kriege. Berlin, 1832.
Compin, Essai sur le blocus maritime en temps de guerre,

1899.
Daveluy, Studie iiber die Seestrategie. Berlin, 1906.
Depambour, Des effets de I'occupation en temps de guerre

sur la propriete et la jouissance des biens publics et

particuliers. Paris, 1900.
Despagnet, Cours de droit international public. 3rd Edition.

Paris, 1898.
Duboc, Le droit de visite et la guerre de course. 1902.
Dupuis, Le droit de la guerre maritime d'apres les doctrines

anglaises contemporaines. Paris, 1899.
Endres, Die volkerrechtlichen Grundsiitze der Kriegfiihrung

zu Lande und zur See. Berlin, 1909.
Erdmann, Eine Krisis in der Kriegsmarine. Leipzig, 1909.
Erichsen, Deutschlands wirtschaftliche Existenz und seine

Flotte. Kiel, 1900.
Ernst, L'oiuvre de la deuxieme conference de la paix.

Bruxelles, 1908.
Eyck, " Der englische Lordkanzler gegen das Seebeute-

recht," " Deutsche Juristen-Zeitung," i. October, 1906.
Ferber, Internationale Rechtsverhaltnisse der Kriegs- und

Handelsschitfe in Krieg und Frieden. Kiel, 1895.
V. Ferneck, Die Kriegskonterbande. Vienna, 1907.
Fitger, SchilTsbau- und Seeschiffahrt in den letzten Jahren.

Berlin, 1892
Fitger, Die Riickwirkung des ostasiatischen Krieges auf das

Volkerrecht. Berlin, 1904.


1 2 3 4 5 6 7 8 9 10 11 13 15

Online LibraryHans WehbergCapture in war on land and sea → online text (page 13 of 15)