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observed by the belligerent powers, in their intercourse with this country. These rules were
And if the armed vessel of one nation should depart from our jurisdiction, no armed vessel, being within the same, and belonging to an adverse belligerent power, should depart until twenty-four hours after the former, without being deemed to have violated the law of nations. Kent, vol. 1, pp. 129-130; Instructions to the collectors of the customs, Au
gust 4, 1793. It is usual, and indeed necessary, in order to prevent an undue use of neutral waters as asylum, to establish a rule as to the departure of hostile belligerents lying in a neutral port at the same time. Twenty-four hours' delay is now often exacted of one belligerent after the other shall have sailed, which, in case of steamers, is sufficient. And, if a cruiser is within the neutral waters, though not in port, the neutral may convoy the belligerent in port beyond its waters, and insist that the other shall keep within the waters for a reasonable time thereafter.
Note 208, Dana's Wheaton. Armed cruisers, in neutral ports, are not only bound not to violate the peace while within neutral jurisdiction, but they cannot use the asylum as a shelter from which to make an attack upon the enemy. Hence, if an armed vessel of one belligerent should depart from a neutral port, no armed vessel, being within the same, and belonging to an adverse belligerent power, can depart until twenty four hours after the former, without being deemed to have violated the law of nations. And if any attempt at pursuit be made, the neutral is justified in resorting to force, to compel respect to the sanctity of its neurality. Halleck, p. 526-527.
if a belligerent can leave a port at his will, the neutral territory may become at any moment a mere trap for an enemy of inferior strength. Accordingly, during a considerable period, though not very generally or continuously, neutral states have taken more or less precaution against the danger of their waters being so used. Perhaps the usual custom until lately may be stated as having been that the commander of a vessel of war was required to give his word not to commit hostilities against any vessel issuing from a neutral port shortly before him, and that a privateer as being less a responsible person was subjected to detention for twenty-four hours. The disfavour however with which privateers have long been regarded has not infrequently led to their entire exclusion, save in cases of danger from the sea or of absolute necessity; and the twenty-four hours' rule has been extended to public ships of war by Italy, France, England, the United States, and Holland. Probably it may now be looked upon as a regulation which is practically sure to be enforced in every war.
Hall, pp. 651, 652. It [the rule of 24 hours interval between the departure from a neutral port of two ships of mutually enemy character] has been adopted in recent declarations of neutrality or other official documents as follows. As between any two ships of mutually enemy
character, in 1898 by Brazil (with the addition that the interval shall be 72 hours if the ship first departing is a sailing vessel and that secondly departing a steamer), China, Italy (which also has the rule in Art. 250 of its Mercantile Marine Code), the Netherlands and Russia, and in 1904 by France; also by the Belgian decree of 18 February 1901, Art. 19. Where the ship secondly departing is one of war, by Great Britain and Denmark in 1898 and 1904, Portugal in
1 1898, and Sweden and Norway and Egypt in 1904 (the latter with the addition that no vessel of one of the belligerents shall leave either of the terminal ports of the Suez Canal less than 24 hours after a ship of war of the other belligerent has left the same port); also by Spain in 1863. And in 1898 Haiti and Japan promulgated the 24 hours' interval only as between the departure of mutually enemy ships of war.
* And the French instructions of 1904 provide that belligerent ships in a French port must abstain from all enquiry as to the
1 forces, position or resources of their enemies, and must not put to sea hastily. (brusquement) in order to pursue those which may be signalled.
We may sum up by saying that the rule of 24 hours' interval is advanced far enough towards universal acceptance for a belligerent to have just cause of complaint against a neutral, if a vessel of his should be captured by a ship of war of his enemy which had been allowed to depart from a port of that power within 24 hours after her.
Westlake, vol. 2, pp. 236, 237. The [Second Hague] Conference also prescribed the course to be followed when ships of both belligerents were present at the same time in the same neutral port or roadstead. If both were war-ships, it followed the old rule that has come down to us from the sixteenth century, and prescribed that twenty-four hours must elapse between their respective departures.
Lawrence, p. 640. A neutral must prevent a belligerent man-of-war from leaving a neutral port at the same time as an enemy man-of-war or an enemy merchantman, or must make other arrangements which prevent an attack so soon as both reach the Open Sea. Oppenheim, vol. 2, p. 401.
belligerent men-of-war are expected to comply with all orders which the neutral makes for the purpose of preventing them from making his ports the base of their operations of war, as, for instance, with the order not to leave the ports at the same time as vessels of the other belligerent. And, if they do not comply voluntarily, they may be made to do so through application of force, for a neutral has the duty to prevent by all means at hand the abuse of the asylum granted.
Oppenheim, vol. 2, p. 419. A belligerent man-of-war can abuse asylum, firstly, by ascertaining whether and what kind of enemy vessels are in the same neutral port, accompanying them when they leave, and attacking them immediately they reach the Open Sea. To prevent such abuse, in the eighteenth century several neutral States arranged that, if bel
ligerent men-of-war or privateers met enemy vessels in a neutral port, they were not to be allowed to leave together, but an interval of at least twenty-four hours was to elapse between the sailing of the vessels. During the nineteenth century this so-called twenty-four hours rule was enforced by the majority of States. Oppenheim, vol. 2, p. 421.
no ship of war or privateer of either belligerent shall be permitted to sail out of or leave any port, harbor, or roadstead, or waters subject to the jurisdiction of the United States from which a vessel of the other belligerent (whether the same shall be a ship of war, a privateer, or a merchant ship) shall have previously departed, until after the expiration of at least twenty-four hours after the departure of such last mentioned vessel beyond the jurisdiction of the United States.
Proclamation of President Grant, October 8, 1870, For. Rel. 1870, 48.
See also proclamation of President Roosevelt, February 11, 1904. No ship of war or privateer of either belligerent shall be detained in any port, harbor, roadstead, or waters of the United States more than twenty-four hours, by reason of the successive departures from such port, harbor, roadstead, or waters of more than one vessel of the other belligerent. But if there be several vessels of each or either of the two belligerents in the same port, harbor, roadstead, or waters, the order of their departure therefrom shall be so arranged as to afford the opportunity of leaving alternately to the vessels of the respective belligerents, and to cause the least detention consistent with the objects of this proclamation.
Proclamation of President Grant, October 8, 1870, For. Rel. 1870, 48.
See also proclamation of President Roosevelt, February 11, 1904. Such vessel or vessels (of war of the United States sheltered in a neutral port] must conform to the regulations prescribed by the authorities of the neutral port with respect to
the time to elapse before sailing in pursuit or after the departure of a vessel of the enemy.
U. S. Naval War Code, Article 18. Article 16, Hague Convention V, 1907, is substantially identical with section 136, Austro-Hungarian Manual, 1913. Commodore Stewart's Case, 1 Ct. Cl., 113.—The court said:
when two vessels, enemies of each other meet in a neutral port, or one pursues the other into such port, not only must they refrain from all hostilities while they remain there, but should one set sail, the other must not sail in less than twenty-hours afterwards."
REPAIRS AND ADDITIONS TO BELLIGERENT WAR-SHIPS IN NEUTRAL PORTS AND
In neutral ports and roadsteads belligerent war-ships may
only carry out such repairs as are absolutely necessary to render them seaworthy, and may not add in any manner whatsoever to their fighting force. The local authorities of the neutral Power shall decide what repairs are necessary, and these must be carried out with the least possible delay.--Hague Convention XT11, 1907, Article 17.
When the subjects and inhabitants of the two parties, with their vessels, whether they be public and equipped for war, or private or employed in commerce, shall be forced by tempest, by pursuit of privateers and of enemies, or by any other urgent necessity, to retire and enter any of the rivers, bays, roads, or ports of either of the two parties, they shall be received and treated with all humanity and politeness, and they shall enjoy all friendship, protection, and assistance, and they shall be at liberty to supply themselves with refreshments, provisions, and everything necessary for their sustenance, for the repair of their vessels, and for continuing their voyage; provided allways that they pay a reasonable price; and they shall not in any manner be detained or hindered from sailing out of the said ports or roads, but they may retire and depart when and as they please, without any obstacle or hindrance.
Treaty of Amity and Commerce concluded between the United States and
Sweden, April 3, 1783, Article XXI.
If the citizens or subjects of either party, in danger from tempests, pirates, enemies, or other accidents, shall take refuge, with their vessels or effects, within the harbours or jurisdiction of the other, they shall be received, protected, and treated with humanity and kindness, and shall be permitted to furnish themselves, at reasonable prices, with all refreshments, provisions, and other things necessary for their sustenance, health, and accom[m]odation, and for the repair of their vessels.
Treaty of Amity and Commerce concluded between the United States and
Prussia, July 11, 1799, Article XVIII.
Repairs shall not be allowed except so far as necessary to enable them belligerent war-ships in neutral ports] to put to sea. Immediately thereafter the ship shall leave the port and neutral waters. Institute, 1898, p. 155.
The government of the United States was warranted by the law and practice of nations, in the declarations made in 1793, of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent powers, in their intercourse with this country. These rules were. * * * The equipment by them of government vessels of war, in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful.
Kent, vol. 1, pp. 129–130; Instructions to the collectors of the customs,
August 4, 1793. It may be considered the settled practice of nations, intending to be neutral, to prohibit belligerent cruisers from entering their ports, except from stress of weather or other necessity, or for the purpose of obtaining provisions and making repairs requisite for seaworthiness.
Note 208, Dana's Wheaton. The same spirit of humanity, as well as respect for a friendly power, imposes on neutrals the duty of opening their ports to armed vessels of both belligerents, for purposes having no direct relation to the war, and equally likely to exist in time of peace. Cruisers may sail into neutral harbors for any of the purposes for which merchant vessels of either party frequent the same places, except that merchant vessels are suffered to take military stores on board, which is forbidden generally, and ought to be forbidden, to ships of war.
Woolsey, p. 273. Hence, although a ship may be sold in a neutral country to a belligerent, as an article of commerce, the augmentation of a cruiser's force in such a country will taint all its captures brought into such a country's ports during its cruise.
Woolsey, p. 276. In every other case but those just considered a belligerent ship of war may need repair,
and it has never been claimed that so much repair
must be refused her as will enable her to keep the sea.
Westlake, vol. 2, p. 239. In addition to the duties previously mentioned, a neutral state it bound to prevent an increase of the fighting force of belligerent uar vessels in its ports and roadsteads. This wholesome rule had been generally recogniseil for a long time when the Second Hague Conference embodied it in a law-making document. The question of repairs is bound up with it, and the Convention of 1907 on the Rights and Duties of Neutral Powers in Maritime War laid down that
Article 17). This is the old distinction, sadly illegical, but nevertheless useful for practical purposes. What fits a vessel to keep the seas also fits it to manoeuvre in an engagement, and overtake or escape an enemy. But nevertheless it is possible for experts to distinguish between repairs mainly concerned with navigation and repairs mainly concerned with fighting power; and as the Conference made the local authorities of the neutral state judges of what repairs are necessary, and provided that they must be carried out as quickly as possible, the danger of abuse is reduced to a minimum.
Lawrence, p. 642.