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THE CASE OF THE "APPAM" AND THE LAW

OF NATIONS 1

At the time when the Emden and all other German ships had ended their careers on the high seas, and England thought herself safe from the inroads of German cruisers on the ocean, about the middle of January, 1916, the Liverpool liner Appam disappeared on a voyage from Dakar, West Africa, to Plymouth, England. This ship had left its port of departure on January 11th and was expected in Plymouth the 21st of that month. After four days, wireless communication with the vessel ceased suddenly, and as nothing was heard of the ship during the following days, it was given up for lost. It was admitted that it had either gone down in a severe storm which had been raging on the West African coast, or had been sunk by a German submarine which had extended its radius of action. These assumptions were confirmed by the British steamer Tregantle, which on the 16th of January passed a damaged life-boat having on its stern the name Appam. The risks on the Appam rose to 75% in London, and no hopes were had as to the fate of the passengers, among whom were the Governor of the British colony of Sierra Leone and his wife.

On the first of February, 1916, a ship entered the harbor of Norfolk, Virginia, which flew from its masthead the German battle flag. It was the Appam, now a German prize with a German prize crew on board. A German auxiliary cruiser, the Moewe, disguised as a tramp liner, sailed through the North Sea and on the very lanes of travel of English ships until she reached the high seas, where, unknown to the enemy, she preyed upon British merchant ships. Six larger vessels had been taken near the northwest African coast between the 11th and 13th of January, when the Appam appeared on the 15th of that month. The Moewe, disguised as a tramp, approached the British vessel, and when within range, the German battle flag rose on the Moewe, and the guns stood in position. The Appam, which possessed 1 Translated from the German by Carlyle Reginald Barnett, of New York City.

only one three-inch gun, soon surrendered. The Moewe placed 138 people whom she had taken off destroyed prizes, as well as a prize crew of 22 men under the command of Lieutenant Berg, on board the Appam, and with these and 20 other Germans who had been captured in Africa and were being taken to detention camps in England, the Appam was taken across the Atlantic Ocean, a voyage of 3400 miles, without being seen by the British cruisers engaged in patrolling the Atlantic coast of the United States. Thus, on February first, the Appam, under the guidance of 42 Germans, with some 400 Englishmen, sailed into Norfolk harbor, flying the German flag.

The case of the Appam attracted notice not only because of the unheard of boldness which caused this British ship to be taken as a German prize into an American harbor, but also because of the complicated legal questions which stamped this as one of the most remarkable cases of international law. The matter became more involved because of the efforts of the British Government and the former English owners to regain possession of the Appam. The British Government sought to attain its end through diplomatic channels and asked, through its Ambassador at Washington, that the American Government should free the ship, return the Appam to England, and intern the German prize crew on the basis of Article 21 of the XIII Hague Convention of 1907. The former English owners, the Elder Dempster Company, Ltd., and the parent line of this company, the British and African Steam Navigation Company of London, instituted legal proceedings, and a libel was filed in the United States District Court at Norfolk, Va.2 Without entering into any criticism of the conduct of the American Government in regard to the British diplomatic action, or of the District Court on the commencement of legal proceedings in regard to the Appam, an objective consideration of the case assumes various aspects, which will be discussed in detail in the following pages.

I

As is well known, efforts have been made in recent times to improve the existing chaotic conditions of international public maritime law

2 Since this article was written, this case has been decided by the Supreme Court of the United States, which has ordered the Appam returned to her British The decision is printed infra, p. 443. — ED.

owners.

which boasts of but very few generally recognized rules. To this end, a series of legal rules in more or less codified form were agreed upon at the Hague Peace Conferences of 1899 and 1907, the last in particular, and at the London Naval Conference of 1908-9. If these had been recognized and obeyed in place of the former imperfect body of maritime law, they would have made a most important series of legal principles covering the law of the sea. These agreements, however, as between sovereign states, do not become valid and binding by a majority vote of the conferences, but are only valid as to those states which submit to them by means of an international declaration with the Netherlands as "Trustee" for the Hague Conventions, and with Great Britain as "Trustee" for the London Naval Convention, and only then when all belligerent nations are parties to the compact. The XIII Convention of the Second Hague Conference of October 18, 1907, contains the following in Articles 28-30, in reference to the rights of neutrals in case of a naval war: The stipulations of this agreement are to hold good only as to the parties thereto and then only finds acceptance if all the Powers engaged in war are parties to it, and that ratifications of the same are deposited with the Government of the Netherlands at the Hague; and Powers that have not signed the agreement can accede to the same by official notice to the Government of the Netherlands with a declaration of accession annexed to the same.

As is well known, the English Government had not up to the beginning of the present war ratified the provisions of the London Naval Convention which gathered at the call of the British Government, so that as far as this war is concerned, they are not applicable. Also by a later, though only a partial ratification, and then not in the proper form, England could not obtain international recognition of the Declaration of London in the face of Article 65, which stated that the provisions of the Declaration must be treated as a whole and could not be accepted in parts. The XIII Convention of the Second Hague Conference has not, on the other hand, ever been ratified or in any other way been recognized by the British Government. England has not accepted this convention, because there must first be a change in English municipal law in order to bring it in accord with these international principles. But when the House of Lords rejected the Lon

don Declaration which had been confirmed by the Commons, it became apparent that Great Britain did not desire to embark on a course of international legislation, but rather to regard international questions solely from an English point of view. The failure of the American proposal made at the beginning of the war for a general recognition of the London Declaration so that maritime law should have a definite status during the progress of the war, may be ascribed to the same reason.

In so far as rules are concerned, those contained in the declaration and convention referred to can only be recognized as rules of law to he degree that they were looked upon as such previous to the inception of the said declaration and convention. As far as the Appam case is concerned, only a very few of those provisions are recognized internationally. On the contrary, one finds almost everywhere opposing principles of national law and particularly international law, especially, the divergent views of the Anglo-American and Continental European systems. The Anglo-American conception is peculiar in that it is inclined to take its version as the standard and have the other nations recognize such as the true rule.

The claim of the British Government on the United States in regard to the Appam case is founded on the position of the latter as a neutral and its duties as such toward prizes of war taken into American harbors. The XIII Convention of the Second Hague Conference contains detailed provisions in Articles 21-26 for such a case, but, as has been shown above, these can only be regarded as proposals de lege ferenda. These interesting questions have not been touched upon in the Declaration of London, and as the mentioned regulations of the Hague Convention have been rejected as rules of international law, it is unnecessary to discuss here how far these intended general provisions take precedence or make way for particular international law, as they are only to be considered as valid if agreed upon between individual nations.

There was no generally recognized law of prize in international law. The treaty between the United States and Germany made provision for this discrepancy. According to international law, a neutral nation could either permit a warship to bring her prizes into port or refuse admittance. In the absence of an express prohibition, permission to

enter was implied. Once in the harbor, a neutral state could limit the stay of such warships and prizes. Failure to set a time limit implied a right of indefinite asylum. Private vessels of belligerent ownership could remain any length of time in neutral ports, but it became customary to place a limitation on warships, although such procedure was not generally recognized. This time limit could be modified or completely disregarded by treaties between individual states. In such treaties, which were quite numerous in the eighteenth century, the high contracting parties mutually promised each other not only to receive into their ports prizes of the other, but also to refuse such a right to enemies of the several parties to the agreement.

This took place in the Franco-American Treaty of 1778 (Art. 19),* to be considered hereafter. On the other hand, the time limit set on reception took its inception from the limitation placed on prizes taken into port by privateers which, according to the French law, in case of distress at sea or evasion of one's enemy, was limited to 24 hours.5

Similar treatment was accorded a prize either when entering a neutral harbor in charge of a prize crew or accompanied by a warship. In the latter case the regulations for the stay of prizes were also applied to the escorting warship. Both were, therefore, placed on the same footing. It is quite apparent that this question and the course of conduct in the individual case depended entirely upon the presence of the prize. Westlake gives as a reason for the irregular treatment of prizes and warships, that conflicts on board the prize between the prize crew and the crew of the ship and, in the case where the ship was taken into port by a warship, fear of a conflict between the two ships, entitled a neutral country to refuse entrance of prizes to its harbors.

The continued possession of prizes, while in a neutral harbor, also implied the use of force over the captured crew. The neutral state, according to prevailing legal conceptions, could not interfere with this possession without placing itself in opposition to the principle of the

3 Wheaton, Elements of International Law, 2d ed. by Lawrence, p. 726; Hall, A Treatise on International Law, 5th ed., p. 985.

4 Wehberg, Seekriegsrecht, Handbuch des Völkerrechts, Vol. 4, p. 441; Moore, Digest, Vol. 5, sec. 821, p. 588; Wheaton, Elements, pp. 490 (note 165), 711. 5 Westlake, International Law, Part 2, p. 214.

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