Volume Ii Part 51 (1/2)
[Footnote 721: See _Annuaire_, XXIV. (1911), p. 302.]
IX
RIGHT OF ANGARY
Hall, -- 278--Lawrence, -- 233--Westlake, II. p. 119--Phillimore, III. -- 29--Halleck, I. p. 485--Taylor, -- 641--Walker, -- 69--Bluntschli, -- 795A--Heffter, -- 150--Bulmerincq in Holtzendorff, IV. pp. 98-103--Geffcken in Holtzendorff, IV. pp.
771-773--Ullmann, -- 192--Bonfils, No. 1440--Despagnet, No.
494--Rivier, II. pp. 327-329--Kleen, II. ---- 165 and 230--Perels, -- 40--Hautefeuille, III. pp. 416-426--Holland, _War_, Nos.
139-140--_Land Warfare_, ---- 507-510--Albrecht, _Requisitionen von neutralem Privateigenthum, insbesondere von Schiffen_ (1912), pp.
24-66.
[Sidenote: The Obsolete Right of Angary.]
-- 364. Under the term _jus angariae_[722] many writers on International Law place the right, often claimed and practised in former times, of a belligerent deficient in vessels to lay an _embargo_ on and seize neutral merchantmen in his harbours, and to compel them and their crews to transport troops, ammunition, and provisions to certain places on payment of freight in advance.[723] This practice arose in the Middle Ages,[724] and was made much use of by Louis XIV. of France. To save the vessels of their subjects from seizure under the right of angary, States began in the seventeenth century to conclude treaties by which they renounced such right with regard to each other's vessels. Thereby the right came into disuse during the eighteenth century. Many writers[725]
a.s.sert, nevertheless, that it is not obsolete, and might be exercised even to-day. But I doubt whether the Powers would concede to one another the exercise of such a right. The facts that no case happened in the nineteenth century and that International Law with regard to rights and duties of neutrals has become much more developed during the eighteenth and nineteenth centuries, would seem to justify the opinion that such angary is now probably obsolete,[726] although some writers[727] deny this.
[Footnote 722: The term _angaria_, which in medieval Latin means _post station_, is a derivation from the Greek term ???a??? for messenger. _Jus angariae_ would therefore literally mean a right of transport.]
[Footnote 723: See above, -- 40.]
[Footnote 724: On the origin and development of the _jus angariae_, see Albrecht, _op. cit._ pp. 24-37.]
[Footnote 725: See, for instance, Phillimore, III. -- 29; Calvo, III. -- 1277; Heffter, -- 150; Perels, -- 40.]
[Footnote 726: See Article 39 of the ”Reglement sur le regime legal des navires ... dans les ports etrangers” adopted by the Inst.i.tute of International Law (_Annuaire_, XVII. 1898, p. 272): ”Le droit d'angarie est supprime, soit en temps de paix, soit en temps de guerre, quant aux navires neutres.”]
[Footnote 727: See Albrecht, _op. cit._ pp. 34-37.]
[Sidenote: The Modern Right of Angary.]
-- 365. In contradistinction to this probably obsolete right to compel neutral s.h.i.+ps and their crews to render certain services, the modern right of angary consists in the right of belligerents to make use of, or destroy in case of necessity, _for the purpose of offence and defence_, neutral property on their own or on enemy territory or on the Open Sea.
In case property of subjects of neutral States is vested with enemy character,[728] it is not neutral property in the strict sense of the term neutral, and all rules respecting appropriation, utilisation, and destruction of enemy property obviously apply to it. The object of the right of angary is _such property of subjects of neutral States as retains its neutral character from its temporary position on belligerent territory and which therefore is not vested with enemy character_. All sorts of neutral property, whether it consists of vessels or other[729]
means of transport, or arms, ammunition, provisions, or other personal property, may be the object of the right of angary, provided the articles concerned are serviceable to military ends and wants. The conditions under which the right may be exercised are the same as those under which private enemy property may be utilised or destroyed, but in every case the neutral owner must be fully indemnified.[730]
[Footnote 728: See above, -- 90.]
[Footnote 729: Thus in 1870, during the Franco-German War, the Germans seized hundreds of Swiss and Austrian railway carriages in France and made use of them for military purposes.]
[Footnote 730: See article 6 of U.S. Naval War Code:--”If military necessity should require it, neutral vessels found within the limits of belligerent authority may be seized and destroyed, or otherwise used for military purposes, but in such cases the owners of the neutral vessels must be fully recompensed. The amount of the indemnity should, if practicable, be agreed upon in advance with the owner or master of the vessel; due regard must be had for treaty stipulations upon these matters.” See also Holland, _War_, No. 140.]
A remarkable case[731] happened in 1871 during the Franco-German War.
The Germans seized some British coal-vessels lying in the river Seine at Duclair, and sank them for the purpose of preventing French gunboats from running up the river. On the intervention of the British Government, Count Bismarck refused to recognise the duty of Germany to indemnify the owners of the vessels sunk, although he agreed to pay indemnities.
[Footnote 731: See Albrecht, _op. cit._ pp. 45-48.]
However, it may safely be maintained that a duty to pay indemnities for any damage done by exercising the right of angary must nowadays be recognised. Article 53 of the Hague Regulations stipulates the payment of indemnities for the seizure and utilisation of all appliances adapted to the transport of persons or goods which are the private property of inhabitants of occupied enemy territory, and article 52 of the Hague Regulations stipulates payment for requisitions; if, thus, the immunity from confiscation of private property of inhabitants is recognised, all the more must that of private neutral property temporarily on occupied enemy territory be recognised also.
[Sidenote: Right of Angary concerning Neutral Rolling Stock.]