The neutral merchant: in relation to the law of contraband of war and blockade under the order in Council of 11th March, 1915Piggott, Francis Taylor
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The neutral merchant: in relation to the law of contraband of war and blockade under the order in Council of 11th March, 1915
Piggott, Francis Taylor
Blockade; Contraband of war; Neutrality; World War, 1914-1918
This question also arises very directly under the Order in Council,
for the first clause provides that the goods discharged from a neutral
vessel seized on its voyage to a German port, other than contraband
of war, shall, if they are not requisitioned for the use of His
Majesty, ‘be restored by order of the Court, upon such terms as the
Court may in the circumstances deem to be just, to the person entitled
thereto.’ Now, if the property in the cargo has by law passed to an
enemy purchaser certain questions as to the making of the order would,
I presume, arise, which for obvious reasons I do not discuss. But it
is quite certain that the American vendor could not appear and make
the claim on behalf of such a purchaser; equally certain that the
United States Government would have no _locus standi_. The position
under the Order in Council is the same as would arise in normal
circumstances if, for example, the question before a Prize Court were
as to the ‘effectiveness’ of a blockade. The neutral owner of the
ship would argue the case on his own behalf, but not on behalf of an
enemy owner of the cargo. As, therefore, the United States Government
could not argue the legal case on behalf of an enemy purchaser, and
as enemy purchasers are the persons specially cared for by this rule
of the Declaration of Paris, it is difficult to see how it can argue
the question diplomatically. But, not being altogether inexperienced
in diplomacy, it has limited its protest to the case of its neutral
merchants.[36] Then, with great deference, the invocation of the
Declaration of Paris is irrelevant, for the whole point of the clause
is the freedom of the goods and not the freedom of the ship; and the
question of the freedom of the ship cannot be raised, because the
exception of contraband of war from the rule carries with it a forced
submission to the belligerent right of search. And, further, the
question whether the Order in Council is an illegal extension of the
law of blockade is not affected by the Declaration, but must be decided
on other grounds.
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