File No. 656.119/309
Article by William H. Taft, “The Seizure of the Dutch Ships” Distributed by the Division of Foreign Intelligence of the Department of State, March 22, 19181
The question of the right of the United States to seize the Dutch ships now in our ports and pay full compensation for them is a nice one. It is asserted under what is called the right of angary. This literally means the right of transport. It was a right anciently exercised by a belligerent to seize vessels of neutrals for the transport of his troops and munitions. A general principle of international law is that neutral property in belligerent territory shares the same liability to seizure for war purposes as property of the citizens of the country. The justice of the application of the principle to ships temporarily, or to use Hall’s phrase “passingly,” in the port of a belligerent has been questioned. But the weight of authority among text writers seems to be that such vessels may be seized in cases of military necessity upon tender of full compensation. Moreover, ships which have been in our ports for six months or more, detained because of their purpose to carry cargoes of grain ultimately destined for our enemies, can hardly be said to be “passingly” here. They are doing no good to anyone now. Why should we not use them if we give full compensation to their owners?
It is an interesting circumstance that the most modern instance of the assertion of this right before this war was by Count Bismarck in the war of 1870. He asserted it against Great Britain, a neutral. The Prussians seized six British colliers in the Seine, near Rouen, a place within German military jurisdiction, for the purpose of scuttling them and obstructing the passage of French gunboats on the Seine. Bismarck defended the action as “one of necessity, which even in time of peace may render the employment [or] destruction of foreign property admissible under reservation of indemnification.” He continued, “I take the opportunity of calling to mind that a similar right in time of war has become a peculiar institute of law, the jus angariae, which so high an authority as Sir Robert Phillimore defines thus: That a belligerent power demands and makes use of foreign ships, even such as are not in inland waters, but in ports and roadsteads within its jurisdiction, and even compels the crews to transport troops, ammunition and implements of warfare.” England acquiesced in the legality of the seizure on payment of full compensation. This view, thus agreed upon, is sustained by Oppenheim, [Page 1426] professor of international law at Cambridge, England; by Coleman Philipson, and indeed by most international jurists, including the Germans. Dana and Lawrence vigorously dissent. It is also declared to be the law in the United States naval war code.
An analogous right of [on?] land to seize neutral railway cars in case of absolute necessity is reluctantly recognized in the second Hague convention, if compensation is given. Prussia exercised the right in respect to Swiss railway cars in the war of 1870. On the same principle, Great Britain in 1914 seized four vessels of Turkey (then a neutral) building in English shipyards and paid for them. Perhaps a distinction might be made in that these vessels were not yet afloat.
Doctor Loudon, the Minister for Foreign Affairs of Holland, insists that whatever the right may be as to a small number of vessels, it does not exist as to a commercial marine of half a million tons en bloc. It is certainly true that the right has never been applied so extensively as now proposed. It is hard to see, however, why extent of the application of the principle should change the rule. The ships are within our jurisdiction and have been here for six months or more because they do not comply with our lawful regulations of our foreign trade. We did not induce their coming in such numbers. They are here. Our right to seize them rests on their being within our territory. This makes them just as liable as property of American citizens to seizure for war purposes, if our military need for them is great. Such need certainly exists in view of the critical condition of our transport and our imperative obligation to feed our soldiers and our allies abroad.
It will be well, of course, to secure the vessels by agreement with Holland. This we undoubtedly could do but for Germany’s intervention and threat. Germany has no just right to complain of Holland for agreeing to the sale of vessels to us, when by the modern right of angary which Bismarck asserted we could properly enforce such a sale.