As a consequence neutrals have no standard by which to measure their rights or to avoid danger to their ships and cargoes. The paradoxical situation thus created should be changed and the declaring powers ought to assert whether they rely upon the rules governing a blockade or the rules applicable when no blockade exists.
The declaration presents other perplexities. The last sentence quoted indicates that the rules of contraband are to be applied to cargoes detained. The rules covering non-contraband articles carried in neutral bottoms is that the cargoes shall be released and the ships allowed to proceed.
This rule cannot, under the first sentence quoted, be applied as to destination. What, then, is to be done with a cargo of non-contraband goods detained under the declaration? The same question may be asked as to conditional contraband cargoes.
The foregoing comments apply to cargoes destined for Germany. Cargoes coming out of German forts present another problem under the terms of the declaration. Under the rules governing enemy exports only goods owned by enemy subjects in enemy bottoms are subject to seizure and condemnation. Yet by the declaration it is purposed to seize and take into port all goods of enemy “ownership and origin.” The word “origin” is particularly significant. The origin of goods destined to neutral territory on neutral ships is not, and never has been, a ground for forfeiture, except in case a blockade is declared and maintained. What, then, would the seizure amount to in the present case except to delay the delivery of the goods? The declaration does not indicate what disposition would be made of such cargoes if owned by a neutral or if owned by an enemy subject. Would a different rule be applied according to ownership? If so, upon what principles of international law would it rest? And upon what rule, if no blockade is declared and maintained, could the cargo of a neutral ship sailing out of a German port be condemned? If it is not condemned, what other legal course is there but to release it?
While this Government is fully alive to the possibility that the methods of modern naval warfare, particularly in the use of submarines for both defensive and offensive operations, may make the former means of maintaining a blockade a physical impossibility, it feels that it can be urged with great force that there should be also some limit to “the radius of activity,” and especially so if this action by the belligerents can be construed to be a blockade. It would certainly create a serious state of affairs if, for example, an American vessel laden with a cargo of German origin should escape the British patrol in European waters only to be held up by a cruiser off New York and taken into Halifax.
Similar cablegrams sent to Paris.
British reply to the American inquiry.