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Review of regulations.—The British Orders in Council of August 4, 1914, referring to VI Hague Convention, 1907, showed a disposition to establish with Germany
You should inform Secretary of State that, for reasons stated in my telegram of 1st August, 4 I most earnestly trust that the orders already sent to Hamburg to allow the clearance of British ships cover also the release of their cargoes, the detention of which can not be justified.
3 See No. 143. 4 See No. 130.
No. 150.-Sir E. Goschen to Sir Edward Grey.
BERLIN, Aug. 3, 1914.
No. 156.-Sir Edward Grey to Sir E. Goschen.
LONDON, FOREIGN OFFICE, Aug. 4, 1914. I continue to receive numerous complaints from British firms as to the detention of their ships at Hamburg, Cuxhaven, and other German ports. This action on the part of the German authorities is totally unjustifiable. It is in direct contravention of international law and of the assurances given to your Excellency by the Imperial Chancellor. You should demand the immediate release of all British ships if such release has not yet been given.
1 Convention relative to the status of enemy merchant ships at the outbreak of hostilities.
(The United States has not ratified this convention. The provisions are contained in articles 1, 2, 3, 4.)
When a merchant ship belonging to one of the belligerent powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately, or after a reasonable number of days of grace, and to proceed, after being furnished with a pass, direct to its port of destination or any other port indicated.
The same rule should apply in the case of a ship which has left its last port of departure before the commencement of the war and entered a port belonging to the enemy while still ignorant that hostilities had broken out.
A merchant ship unable, owing to circumstances of force majeure, to leave the enemy port within the period contemplated in the above article, or which was not allowed to leave, can not be confiscated.
The belligerent may only detain it, without payment of compensation, but subject to the obligation of restoring it after the war, or requisition it on payment of compensation,
Enemy merchant ships which left their last port of departure before the commencement of the war, and are encountered on the high seas while still ignorant of the outbreak of hostilities can not be confiscated. They are only liable to detention on the understanding that they shall be restored after the war without compensation, or to be requisitioned, or even destroyed, on payment of compensation, but in such case provision
by reciprocal agreement ten “days of grace” (p. 19). The correspondence seems to indicate a willingness on the part of both belligerents to adopt this period but through a misunderstanding this was not adopted (p. 22).
With Austria-Hungary, however, a satisfactory agreement was made by Great Britain and ten days were allowed from the declaration of hostilities (p. 23).
Great Britain, considering that Turkey was not a party to the Hague Convention relative to the Status of Enemy Merchant Vessels at the Outbreak of War did not extend to Turkish vessels the advantages of the order in council of August 4, 1914 (p. 24 note).
The same position was assumed by Great Britain in regard to Bulgaria (p. 25).
The declaration of war between Germany and France, August 3, 1914, contained a proposal for a reciprocal agreement in regard to days of grace (p. 26). These two States allowed a seven-days period of grace (p. 26).
France and Austria reached a similar reciprocal agreement (p. 27).
Italy decreed the sequestration of enemy merchant vessels unless apparently intended for conversion into vessels of war. Vessels of the latter class were to be captured and placed in the prize court (p. 27). The proceeds of sale or use of vessels which had been sequestrated might be used to pay indemnity in case the enemy acted contrary to "the principles of the rights of war generally recognized and admitted” (p. 31).
Naval War College proposal, 1906.-In general the principle of reciprocity has received approval since July, 1914, and the practice in many instances has been similar to that proposed by the United States Naval War College in 1906 in the following words:
1. Each State entering upon a war shall announce a date before which enemy vessels bound for or within its ports at the outbreak of
must be made for the safety of the persons on board as well as the security of the ship's papers.
After touching at a port in their own country or at a neutral port, these ships are subject to the laws and customs of maritime war.
ARTICLE 4. Enemy cargo on board the vessels referred to in articles 1 and 2 is likewise liable to he detained and restored after the termination of the war without payment of compensation, or to be requisitioned on payment of compensation, with or without the ship.
The same rule applies in the case of cargo on board the vessels referred to in article 3.
war shall under ordinary conditions be allowed to enter, to discharge cargo, to load cargo, and to depart, without liability to capture while sailing directly to a permitted destination. If one belligerent State allows a shorter period than the other, the other State may, as a matter of right, reduce its period to correspond therewith.
2. Each belligerent State may make such regulations in regard to sojourn, conduct, cargo, destination, and movements after departure of the innocent enemy vessels as may be deemed necessary to protect its military interests.
3. A private vessel suitable for warlike use, belonging to one belligerent and bound for or within the port of the other belligerent at the outbreak of war, is liable to be detained unless the Government of the vessel's flag makes a satisfactory agreement that it shall not be put to any warlike use, in which case it may be accorded the same treatment as innocent enemy vessels. (International Law Topics and Discussions, 1906, p. 46.)
Recent action on days of grace is shown below:
GREAT BRITAIN AND GERMANY.
Order in council relating to the detention of German ships in British ports
or in any ports of any native State in India, or in any of His Majesty's protectorates, or in any State under His Majesty's protection or in Cyprus."
1914. No. 1248.
At the Court at Buckingham Palace, the 4th day of August, 1914. Present: The King's Most Excellent Majesty in council.
His Majecty being mindful, now that a state of war exists between this country and Germany, of the recognition accorded to the practice of granting “days of grace" to enemy merchant ships by the convention relative to the status of enemy merchant ships at the outbreak of hostilities, signed at The Hague on the 18th October, 1907, and being desirous of lessening, so far as may be practicable, the injury caused by war to peaceful and unsuspecting commerce, is pleased, by and with the advice of his privy council, to order, and it is hereby ordered as follows:
1. From and after the publication of this order no enemy merchant ship shall be allowed to depart, except in accordance with the provisions of this order, from any British port or from any ports in any native State in India, or any of His Majesty's protectorates, or in any State under His Majesty's protection or in Cyprus.
2. In the event of one of His Majesty's principal secretaries of state being satisfied by information reaching him not later than midnight on Friday, the 7th day of August that the treatment accorded to British merchant ships and their cargoes which at the date of the outbreak of hostilities were in the ports of the enemy or which subsequently entered them is not less favorable than the treatment ac
1 A similar order in council was issued by the Canadian Government on August 5, 1914, as regards Germany, and on August 14, 1914, as regards Austria-Hungary.
corded to enemy merchant ships by articles 3 to 7 of this order, he shall notify the lords commissioners of His Majesty's treasury and the lords commissioners of the Admiralty accordingly, and public notice thereof shall forth with be given in the London Gazette, and articles 3 to 8 of this order shall thereupon come into full force and effect.
3. Subject to the provisions of this order, enemy merchant ships which
“(1) At the date of the outbreak of hostilities were in any port in which this order applies; or
“(2) Cleared from their last port before the declaration of war, and after the outbreak of hostilities, enter a port to which this order applies, with no knowledge of the war: shall be allowed up till midnight (Greenwich mean time) on Friday, the 14th day of August, for loading or unloading their cargoes, and for departing from such port:
Provided, That such vessels shall not be allowed to ship any contraband of war, and any contraband of war already shipped on such vessels must be discharged.
4. Enemy merchant ships which cleared from their last port before the declaration of war, and which with no knowledge of the war arrive at a port to which this order applies after the expiry of the time allowed by article 3 for loading or unloading cargo and for departing, and are permitted to enter, may be required to depart either immediately, or within such time as may be considered necessary by the customs officer of the port for the unloading of such cargo as they may be required or specially permitted to discharge.
Provided, That such vessels may, as a condition of being allowed to discharge cargo, be required to proceed to any other specified British port, and shall there be allowed such time for discharge as the customs officer of that port may consider to be necessary.
Provided also, That, if any cargo on board such vessel is contraband of war or is requisitioned under article 5 of this order, she may be required before the departure to discharge such cargo within such time as the customs officer of the port may consider to be necessary; or she may be required to proceed, if necessary under escort, to any other of the ports specified in article 1 of this order, and shall there discharge the contraband under the like conditions.
5. His Majesty reserves the right recognized by the said convention to requisition at any time subject to payment of compensation enemy cargo on board any vessel to which articles 3 and 4 of the order apply.
6. The privileges accorded by articles 3 and 4 are not to extend to cable ships, or to seagoing ships designed to carry oil fuel, or to ships whose tonnage exceeds 5,000 tons gross, or whose speed is 14 knots or over, regarding which the entries in Lloyd's Register shall be conclusive for the purposes of this article. Such vessels will remain liable on adjudication by the prize court to detention during the period of the war, or to requisition, in accordance, in either case, with the convention aforesaid. The said privileges will also not extend to merchant ships which show by their build that they are intended for conversion into warships, as such vessels are outside the scope of the said convention, and are liable on adjudication by the prize court to condemnation as prize.
7. Enemy merchant ships allowed to depart under articles 3 and 4 will be provided with a pass indicating the port to which they are to proceed, and the route they are to follow.
8. A merchant ship which, after receipt of such a pass, does not follow the course indicated therein will be liable to capture.
9. If no information reaches one of His Majesty's principal secretaries of state by the day and hour aforementioned to the effect that the treatment accorded to British merchant ships and their cargoes which were in the ports of the enemy at the date of the outbreak of hostilities, or v hich subsequently entered them, is, in his opinion, not less favorable than that accorded to enemy merchant ships by articles 3 to 8 of this order, every enemy merchant ship v hich, on the outbreak of hostilities, vas in any port to which this order applies, and also every enemy merchant ship which cleared from its last port before the declaration of var, but which, with no knowledge of the war enters a port to vhich this order applies, shall, together v ith the cargo on board thereof, be liable to capture, and shall be brought before the prize court forth ith for adjudication.
10. In the event of information reaching one of His Majesty's principal secretaries of state that British merchant ships v hich cleared from their last port before the declaration of war, but are met rith by the enemy at sea after the outbreak of hostilities, are allowed to continue their voyage without interference with either the ship or the cargo, or after capture are released with or vithout proceedings for adjudication in the prize court, or are to be detained during the war or requisitioned in lieu of condemnation as prize, he shall notify the lords commissioners of the Admiralty accordingly, and shall publish a notification thereof in the London Gazette, and in that event, but not other ise, enemy merchant ships which cleared from their last port before the declaration of rar, and are captured after the outbreak of hostilities and brought before the prize courts for adjudication, shall be released or detained or requisitioned in such cases and upon such terms as may be directed in the said notification in the London Gazette.
11. Neutral cargo, other than contraband of var, on board an enemy merchant ship which is not allowed to depart from a port to which this order applies, shall be released.
12. In accordance rith the provisions of Chapter III of the convention relative to certain restrictions on the exercise of the right of capture in maritime i ar, signed at The Hague on the 18th October, 1907, an undertaking must, shether the merchant ship is allowed to depart or not, be given in v riting by each of the officers and members of the cre v of such vessel, who is of enemy nationality, that he will not, after the conclusion of the voyage for which the pass is issued, engage while hostilities last in any service connected with the operation of the war.
If any such officer is of neutral nationality, an undertaking