THE NAVY AND MERCHANT VESSELS.

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States commander should not, if he overtakes the vessel on the high seas, treat it as piratical.

By the statement of the situation, the commander of the United States war vessel does meet the seized vessel, the Robin, on the high seas.

He may not treat the case as one of piracy, but it certainly is an offense which comes within his jurisdiction. This is a case of a merchant vessel which needs his protection and the regulation of the service would apply.

U. S. Navy Regulations, 1900, 309, prescribe that,

So far as lies within their power, commanders-in-chief and captains of ships shall protect all merchant vessels of the United States in lawful occupations and advance the commercial interests of this country, always acting in accordance with international law and treaty obligations.

The Robin has been seized within the jurisdiction of the State X and is now upon the high seas. It is evident that State X is not in full control of the port in which the Robin was seized. From the nature of the case, also, the insurgents who seized the Robin, while not pirates, are not a responsible body and can not be dealt with as such by the United States. As they are not belligerents the seizure of the Robin can not be permitted under the right of angary. Nor does the promise to make compensation to the owners in any way change the case, as the insurgents who seized the Robin are not a responsible body at the time and their future responsibility is uncertain. That the seizure is not with the approval of the owners is evident from the request of the owners that the vessel be recovered by the United States war vessel.

In 1885, in Colombia, certain vessels belonging to neutrals were taken by insurgents in a manner somewhat similar to that in the case of the Robin. At this time Mr. Wharton, Solicitor for the Department of State, gave his opinion as follows:

When vessels belonging to citizens of the United States have been seized and are now navigated on the high seas by persons not representing any government or belligerent power recognized by the United States, such vessels may be captured and rescued by their owners, or by United States cruisers acting for such owners: and all force which is necessary for such purpose may be used to make the capture effectual. (U. S. Foreign Relations, 1885, p. 212.)

1

From the above, which is an accepted precedent, it is evident that the commander of the United States war vessel would be justified in seizing the United States merchant vessel which the insurgents had taken.

Conclusion. The commander of the cruiser of the United States is justified in making a capture of the Robin. What disposition shall he make of the captured vessel? While the naval officer is justified in making the capture, he has not authority, except in extreme instances, to dispose of or determine the fate of a captured vessel. That authority belongs to another branch of the Government. He should therefore send in the captured vessel, if possible, to a port of his own country with a report of the case. If distance or other circumstances prevent such action, he should take the vessel under his authority to some port near by and obtain instructions from his home Government as to the further disposition. of the vessel.

The question of damages from State X on account of seizure of the Robin within that State's jurisdiction is a matter for diplomatic negotiation.

SITUATION III, (c).

There is an insurrection in State X.

(c) State X charters a United States merchant vessel to transport troops to the seat of insurrection. When the vessel is about to land these troops it is captured by the insurgents. The captain of the United States merchant vessel appeals for assistance to the commander of a United States war vessel near by.

(1) What action, if any, should he take?

(2) How would he act if the troops of State X had been landed before the capture of the vessel?

SOLUTION.

(1) The commander of the United States war vessel should reply that "while the United States would not interfere to prevent an American vessel from voluntarily carrying arms and troops in the service of a government trying to put down an insurrection, it would leave the vessel and its crews so voluntarily entering into such service to the consequences of establishing such a relation."

FOREIGN VESSEL AS TRANSPORT.

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(2) Provided the merchant vessel has fulfilled its charter contract and is no longer in the service of State X after landing the troops, the commander of the United States war vessel should extend to the merchant vessel full protection.

NOTES ON SITUATION III, (c).

Nature of the relations.-The fact of the insurrection is admitted. State X enters into a contract with the merchant vessel of the United States to transport troops to the seat of the insurrection.

As there is no belligerency from the point of view of international law, this becomes a simple commercial contract in which certain service is rendered under a certain agreement. The nature of the service is a question of importance.

It has been held by the Supreme Court of the United States that a recognition of belligerency is not necessary in order to bring into operation the neutrality laws of the United States. (166 U. S., 49.)

"It may be said to be established that the parties to a conflict that has attained the proportion of an insurrection shall observe, as far as possible, the rules of civilized warfare." (Insurgency, Lectures, Naval War College, 1900, p. 13.)

It is generally admitted at the present time that insurgents are not criminals when pursuing public political ends, and also that insurgents are free to carry on legitimate hostilities, though it is maintained that the conduct of these hostilities should not unduly interfere with neutral commerce. Admiral Benham, at the time of the Brazilian revolt of 1893-94, maintained that while neutral commerce was liable to interruption during the actual continuance of active hostile operations in time of an insurrection, at other times ordinary commerce should not be interrupted because of such internal disturbances.

In case of State X there is no belligerency in the sense in which the word is used in international law. There is, however, an insurrection, which is held to bring into operation certain of the laws applying to a state of belligerency so far as the parties to the struggle are concerned. Just how far third states and the citizens of other states

are affected by the existence of insurrection in a given state is not yet determined.

Bluefields, 1894.-An instance somewhat similar to the one under consideration occurred in 1894, at the time of the Bluefields insurrection. The conditions, as shown from the official correspondence, were as follows:

Mr. Baker to Mr. Gresham.

LEGATION OF THE UNITED STATES,

Managua, August 8, 1894—(Received September 4).

SIR: On the evening of August 2 Mr. Gustavo Guzman came to this legation bearing, as he informed me, a verbal message from the President, to the following effect:

First. That this Government had sent a large number of troops to San Juan del Norte, where they had just arrived, on their way to Bluefields. Second. That this Government had chartered the steamboat Yulu, a boat owned by the Emory Company of Boston, flying the United States flag, to transport these troops from San Juan del Norte to Bluefields.

Third. That now the captain and crew of the Yulu, all Americans, refuse to carry the soldiers, for the reason that Commander O'Neil, of the U. S. S. Marblehead, had issued a proclamation forbidding vessels under the flag of the United States from "carrying bodies of armed men or military supplies” for either "party" to the controversy in the Mosquito territory.

Fourth. The President, therefore, requested that I, as United States minister, issue an order to the captian and crew of the steamer Yulu, assuring them that they run no risk in disobeying the warning of Commander O'Neil.

I could not believe it to be my duty to comply with this request; but, at the suggestion of Mr. Guzman, I gave him the accompanying telegram, marked "Inclosure No. 1," which he had liberty to send if he so desired. Inclosure No. 2 is a copy of the proclamation of Commander O'Neil referred to.

The Nicaraguan Government had chartered, as I learn, the steamer Yulu, belonging to a company of Americans, to carry troops from Grey Town to Bluefields. The President desires to know if this is contrary to your order commanding the neutrality of American citizens. Consul Braida, Grey Town.

(Foreign Relations U. S., 1894, p. 321.)

Please answer, in care of

LEWIS BAKER, United States Minister.

COMMANDER O'NEILS NOTICE.

[Inclosure.]

U. S. S. MARBLEHEAD,

Off Bluefields, Nicaragua, July 14, 1894.

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To the owners, agents, and captains of vessels under the flag of the United States trading in these waters:

In view of the fact that there is in effect a revolution going on in the Mosquito Reserve between the chief of the said reserve and his followers and the provisional council, which in a measure through its president represents, or assumes to represent, the Government of Nicaragua, these parties being in hostile attitude to each other, and the former being at present in possession at Bluefields, you are hereby cautioned and counseled not to interfere with nor take part in the affairs of either faction by permitting vessels under your charge to engage in any military operations, that is, not to carry bodies of armed men or military supplies, knowing them to be such, for either party, nor to assist in any hostile demonstration; and should either party attempt to coerce you to do so, or interfere with you in the peaceful pursuance of your legitimate business, you are advised to utter a vigorous protest, to show this notice, and to communicate the facts of the case to me. CHARLES O'NEIL,

Commander, United States Navy.

(Foreign Relations, U. S., 1894, Appendix I, p. 321.)

It will be observed that Commander O'Neil had not, as was intimated by the Nicaraguan representative, forbidden vessels under the United States flag "to carry bodies of armed men or military supplies, knowing them. to be such, for either party, nor to assist in any hostile demonstration." What he actually did was to caution and counsel "owners, agents, and captains of vessels under the flag of the United States" against such action. Subsequent events showed the wisdom of the notice issued as cautionary by Commander O'Neil. The sworn statement of the purser of the steamship Yulu, before Consular Agent Seat, is as follows:

Affidavit of N. L. Latson.

UNITED STATES CONSULAR AGENCY,

Bluefields, Nicaragua, September 22, 1894. This day, before me, the undersigned authority, personally came and appeared Norman L. Latson, to me known, and on his oath declares that heretofore, to wit, on or about the 3d day of August, 1894, affiant was purser on board the American steamship Yulu, which arrived off Bluefields on the 3d day of August, 1894, having on board 500 or thereabouts Nicaraguan soldiers and officials, among whom were Mr. José Madriz, Nicaraguan minister of foreign affairs; General Portocarrero, judge-advocate, and Carlos