Berg v. British & African Steam Navigation Company/Opinion of the Court
These are appeals from the district court of the United States for the eastern district of Virginia, in two admiralty cases. No. 650 was brought by the British & African Steam Navigation Company, Limited, owner of the British steamship Appam, to recover possession of that vessel. No. 722 was a suit by the master of the Appam to recover possession of the cargo. In each of the cases the decree was in favor of the libellant.

The facts are not in dispute, and from them it appears: That during the existence of the present war between Great Britain and Germany, on the 15th day of January, 1916, the steamship Appam was captured on the high seas by the German cruiser, Moewe. The Appam was a ship under the British flag, registered as an English vessel, and is a modern cargo and passenger steamship of 7,800 tons burden. At the time of her capture she was returning from the West Coast of Africa to Liverpool, carrying a general cargo of cocoa beans, palm oil, kernels, tin, maize, sixteen boxes of specie, and some other articles. At the West African port she took on 170 passengers, eight of whom were military prisoners of the English government. She had a crew of 160 or thereabouts, and carried a 3-pound gun at the stern. The Appam was brought to by a shot across her bows from the Moewe, when about a hundred yards away, and was boarded without resistence by an armed crew from the Moewe. This crew brought with them two bombs, one of which was slung over the bow and the other over the stern of the Appam. An officer from the Moewe said to the captain of the Appam that he was sorry he had to take his ship, asked him how many passengers he had, what cargo, whether he had any specie, and how much coal. When the shot was fired across the bows of the Appam, the captain instructed the wireless operator not to touch the wireless instrument, and his officers not to let anyone touch the gun on board. The officers and crew of the Appam, with the exception of the engine room force, thirty-five in number, and the second officer, were ordered on board the Moewe. The captain, officers, and crew of the Appam were sent below, where they were held until the evening of the 17th of January, when they and about 150 others, officers and crews of certain vessels previously sunk by the Moewe, were ordered back to the Appam and kept there as prisoners. At the time of the capture, the senior officer of the boarding party told the chief engineer of the Appam he was now a member of the German navy; if he did not obey orders his brains would be blown out, but if he obeyed, not a hair of his head should be touched. The Appam's officer was instructed to tell his staff the same thing, and if they did not obey orders they would be brought to the German officer and shot. Inquiries were made by the German officer in command of the Appam as to revolutions of the engines, the quantity of coal on hand and the coal consumption for different speeds, and instructions were given that steam be kept up handy, and afterwards the engineer was directed to set the engines at the revolutions required, and the ship got under way.

Lieutenant Berg, who was the German officer in command of the Appam after its capture, told the engineer on the second morning that he was then in charge of the ship, asked of him information as to fuel consumption, and said that he expected the engineer to help him all he could, and the more he did for him the better it would be for everybody on the ship. The engineer said he would, and did so. The engines were operated with a bomb secured to the port main injector valve, and a German sailor stationed alongside the bomb with a revolver. There was a guard below of four or five armed Germans, who were relieved from time to time, but did not interfere with the working of the ship. The German officer, Lieutenant Berg, gave directions as to working the engines, and was the only officer on board who wore a uniform.

On the night of the capture, the specie in the specie room was taken on board the Moewe. After Lieutenant Berg took charge of the Appam, bombs were slung over her bow and stern, one large bomb, said to contain about 200 pounds of explosive, was placed on the bridge, and several smaller ones in the chart room. Lieutenant Berg informed the captain of the Appam, pointing to one of the bombs, 'That is a bomb; if there is any trouble, mutiny, or attempt to take the ship, I have orders to blow up the ship instantly.' He also said, 'There are other bombs about the ship; I do not want to use them, but I shall be compelled to if there is any trouble.' The bombs were kept in the positions stated until the ship arrived at the Virginia Capes, when they were removed. Lieutenant Berg, on reaching Hampton Roads, asked the crew of the Appam to drop the anchor, as he had not men to do it.

During the trip to the westward, the officers and crew of the Appam were not allowed to see the ship's compass to ascertain her course, and all lights were obscured during the voyage. The German prisoners, with the exception of two who went on board the Moewe, were armed and placed over the passengers and crew of the Appam as a guard all the way across. For two days after the capture, the Appam remained in the vicinity of the Moewe, and then was started westward. Her course for the first two or three days was southwesterly, and afterwards westerly, and was continued until her arrival at the Virginia Capes on the 31st of January. The engine-room staff of the Appam was on duty operating the vessel across to the United States; the deck crew of the Appam kept the ship clean, and the navigation was conducted entirely by the Germans, the lookouts being mostly German prisoners.

At the time of the capture, the Appam was approximately distant 1,590 miles from Emden, the nearest German port; from the nearest available port, namely Punchello, in the Madeiras, 130 miles; from Liverpool, 1,450 miles; and from Hampton Roads, 3,051 miles. The Appam was found to be in first-class order, seaworthy, with plenty of provisions, both when captured and at the time of her arrival in Hampton Roads.

The order or commission delivered to Lieutenant Berg by the commander of the Moewe is as follows:

'Information for the American Authorities. The bearer of this, Lieutenant of the Naval Reserve, Berg, is appointed by me to the command of the captured English steamer Appam and has orders to bring the ship into the nearest American harbor and there to lay up. Kommando S. M. H. Moewe. Count Zu Dohna, Cruiser Captain and Commander. (Imperial Navy Stamp.) Kommando S. M. H. Moewe.'

Upon arrival in Hampton Roads, Lieutenant Berg reported his arrival to the collector, and filed a copy of his instructions to bring the Appam into the nearest American port and there to lay up.

On February 2d, his Excellency, the German Ambassador, informed the State Department of the intention, under alleged treaty rights, to stay in an American port until further notice, and requested that the crew of the Appam be detained in the United States for the remainder of the war.

The prisoners brought in by the Appam were released by order of the American government.

On February 16th, and sixteen days after the arrival of the Appam in Hampton Roads, the owner of the Appam filed the libel in case No. 650, to which answer was filed on March 3d. On March 7th, by leave of court, an amended libel was filed, by which the libellant sought to recover the Appam upon the claim that holding and detaining the vessel in American waters was in violation of the law of nations and the laws of the United States and of the neutrality of the United States. The answer of the respondents to the amended libel alleged that the Appam was brought in as a prize by a prize master, in reliance upon the Treaty of 1799 between the United States and Prussia [8 Stat. at L. 162]; that by the general principles of international law the prize master was entitled to bring his ship into the neutral port under these circumstances, and that the length of stay was not a matter for judicial determination; and that proceedings had been instituted in a proper prize court of competent jurisdiction in Germany for the condemnation of the Appam as a prize of war; and averred that the American court had no jurisdiction.

The libel against the Appam's cargo was filed on March 13th, 1916, and answer filed on March 31st. During the progress of the case, libellant moved the court to sell a part of the cargo as perishable; on motion the court appointed surveyors, who examined the cargo and reported that the parts so designated as perishable should be sold; upon their report orders of sale were entered, under which such perishable parts were sold, and the proceeds of that sale, amounting to over $600,000, are now in the registry of the court, and the unsold portions of the cargo are now in the custody of the marshal of the eastern district of Virginia.

The argument in this case has taken wide range, and orally and in printed briefs counsel have discussed many questions which we do not consider necessary to decide in determining the rights involved in these appeals.

From the facts which we have stated, we think the decisive questions resolve themselves into three: First, was the use of an American port, under the circumstances shown, a breach of this nation's neutrality under the principles of international law? Second, was such use of an American port justified by the existing treaties between the German government and our own? Third, was there jurisdiction and right to condemn the Appam and her cargo in a court of admiralty of the United States? It is familiar international law that the usual course after the capture of the Appam would have been to take her into a German port, where a prize court of that nation might have adjudicated her status, and, if it so determined, condemned the vessel as a prize of war. Instead of that, the vessel was neither taken to a German port, nor to the nearest port accessible of a neutral power, but was ordered to, and did, proceed over a distance of more than 3,000 miles, with a view to laying up the captured ship in an American port.

It was not the purpose to bring the vessel here within the privileges universally recognized in international law, i. e., for necessary fuel or provisions, or because of stress of weather or necessity of repairs, and to leave as soon as the cause of such entry was satisfied or removed. The purpose for which the Appam was brought to Hampton Roads, and the character of the ship, are emphasized in the order which we have quoted, to take her to an American port and there lay her up, and in a note from his Excellency, the German Ambassador, to the Secretary of State, in which the right was claimed to keep the vessel in an American port until further notice (Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Duties, Department of State, European War No. 3, page 331), and a further communication from the German Ambassador, forwarding a memorandum of a telegram from the German government concerning the Appam, (Idem, page 333), in which it was stated:

'Appam is not an auxiliary cruiser, but a prize. Therefore she must be dealt with according to article 19 of Prusso-American Treaty of 1799. Article 21 of Hague Convention concerning neutrality at sea is not applicable, as this convention was not ratified by England and is therefore not binding in present war according to article 28. The above-mentioned article 19 authorizes a prize ship to remain in American ports as long as she pleases. Neither the ship nor the prize crew can therefore be interned nor can there be question of turning the prize over to English.'

In view of these facts, and this attitude of the Imperial government of Germany, it is manifest that the Appam was not brought here in any other character than as a prize, captured at sea by a cruiser of the German navy, and that the right to keep her here, as shown in the attitude of the German government and in the answer to the libel, was rested principally upon the Prussian-American Treaty of 1799.

The principles of international law recognized by this government, leaving the treaty aside, will not permit the ports of the United States to be thus used by belligerents. If such use were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes, captured by one of the belligerents, might be safely brought and indefinitely kept.

From the beginning of its history this country has been careful to maintain a neutral position between warring governments, and not to allow the use of its ports in violation of the obligations of neutrality; nor to permit such use beyond the necessities arising from the perils of the seas or the necessities of such vessels as to seaworthiness, provisions, and supplies. Such usage has the sanction of international law (Dana's Note to Wheaton on International Law, 1866, 8th Am. ed. § 391), and accords with our own practice (7 Moore's Digest of International Law, 936-938).

A policy of neutrality between warring nations has been maintained from 1793 to this time. In that year President Washington firmly denied the use of our ports to the French Minister for the fitting out of privateers to destroy English commerce. This attitude led to the enactment of the Neutrality Act of 1794, afterwards embodied in the Act of 1818, enacting a code of neutrality, which, among other things, inhibited the fitting out and arming of vessels; the augmenting or increasing of the force of armed vessels; or the setting on foot in our territory of military expeditions; and empowering the President to order foreign vessels of war to depart from our ports, and compelling them so to do when required by the law of nations. 4 Moore, International Arbitrations, 3967 et seq.

This policy of the American government was emphasized in its attitude at the Hague Conference of 1907. Article 21 of the Hague Treaty provides:

'A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions.

'It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral power must order it to leave at once; should it fail to obey, the neutral power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew.'

'A neutral power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in article 21.'

To these articles, adherence was given by Belgium, France, Austria-Hungary, Germany, the United States, and a number of other nations. They were not ratified by the British government. This government refused to adhere to article 23, which provides:

'A neutral power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports.

'If the prize is convoyed by a warship, the prize crew may go on board the convoying ship.

'If the prize is not under convoy, the prize crew are left at liberty.' And in the proclamation of the convention the President recited the resolution of the Senate adhering to it, subject to 'the reservation and exclusion of its article 23, and with the understanding that the last clause of article 3 of the said convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction.' 36 Stat. at L. 2438.

While this treaty may not be of binding obligation, owing to lack of ratification, it is very persuasive as showing the attitude of the American government when the question is one of international law; from which it appears clearly that prizes could only be brought into our ports upon general principles recognized in international law, on account of unseaworthiness, stress of weather, or want of fuel or provisions, and we refused to recognize the principle that prizes might enter our ports and roadsteads, whether under convoy or not, to be sequestrated pending the decision of a prize court. From the history of the conference it appears that the reason for the attitude of the American delegates in refusing to accept article 23 was that thereby a neutral might be involved in participation in the war to the extent of giving asylum to a prize which the belligerent might not be able to conduct to a home port. See Scott, Peace Conferences, 1899-1907, vol. 2, pp. 237 et seq.

Much stress is laid upon the failure of this government to proclaim that its ports were not open to the reception of captured prizes, and it is argued that, having failed to interdict the entrance of prizes into our ports, permission to thus enter must be assumed. But, whatever privilege might arise from this circumstance, it would not warrant the attempted use of one of our ports as a place in which to store prizes indefinitely, and certainly not where no means of taking them out are shown except by the augmentation of her crew, which would be a clear violation of established rules of neutrality.

As to the contention on behalf of the appellants that article 19 of the Treaty of 1799 [8 Stat. at L. 172] justifies bringing in and keeping the Appam in an American port, in the situation which we have outlined, it appears that, in response to a note from his Excellency, the German Ambassador, making that contention, the American Secretary of State, considering the treaty, announced a different conclusion (Diplomatic Correspondence with Belligerent Governments, supra, pages 335 et seq.); and we think this view is justified by a consideration of the terms of the treaty. Article 19 of the Treaty of 1799, using the translation adopted by the American State Department, reads as follows:

'The vessels of war, public and private, of both parties, shall carry [conduire] freely, wheresoever they please, the vessels and effects taken [pris] from their enemies, without being obliged to pay any duties, charges, or fees to officers of admiralty, of the customs, or any others; nor shall such prizes [prises] be arrested, searched or put under legal process, when they come to and enter the ports of the other party, but may freely be carried [conduites] out again at any time by their captors [le vaisseau preneur] to the places expressed in their commissions, which the commanding officer of such vessel [le dit vaisseau] shall be obliged to shew. (But conformably to the treaties existing between the United States and Great Britain, no vessel [vaisseau] that shall have made a prize [prise] upon British subjects shall have a right to shelter in the ports of the United States, but if [il est] forced therein by tempests, or any other danger, or accident of the sea, they [il sera] shall be obliged to depart as soon as possible.)' The provision concerning the treaties between the United States and Great Britain is no longer in force, having been omitted by the Treaty of 1828 [8 Stat. at L. 378]. See Compilation of Treaties in Force, 1904, pages 641 and 646.

We think an analysis of this article makes manifest that the permission granted is to vessels of war and their prizes, which are not to be arrested, searched, or put under legal process when they come into the ports of the high contracting parties, to the end that they may be freely carried out by their captors to the places expressed in their commissions, which the commanding officer is obliged to show. When the Appam came into the American harbor she was not in charge of a vessel of war of the German Empire. She was a merchant vessel, captured on the high seas and sent into the American port with the intention of being kept there indefinitely, and without any means of leaving that port for another, as contemplated in the treaty, and required to be shown in the commission of the vessel bringing in the prize. Certainly such use of a neutral port is very far from that contemplated by a treaty which made provision only for temporary asylum for certain purposes, and cannot be held to imply an intention to make of an American port a harbor of refuge for captured prizes of a belligerent government. We cannot avoid the conclusion that in thus making use of an American port there was a clear breach of the neutral rights of this government, as recognized under principles of international law governing the obligations of neutrals, and that such use of one of our ports was in no wise sanctioned by the Treaty of 1799.

It remains to inquire whether there was jurisdiction and authority in an admiralty court of the United States, under these circumstances, to order restoration to an individual owner of the vessel and cargo.

The earliest authority upon this subject in the decisions of this court is found in the case of Glass v. The Betsy, 3 Dall. 6, 1 L. ed. 485, decided in 1794, wherein it appeared that the commander of the French privateer, The Citizen Genet, captured as a prize on the high seas the sloop Betsy, and sent the vessel into Baltimore, where the owners of the sloop and cargo filed a libel in the district court of Maryland, claiming restitution because the vessel belonged to subjects of the King of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The district court denied jurisdiction, the circuit court affirmed the decree, and an appeal was prosecuted to this court. The unanimous opinion was announced by Mr. Chief Justice Jay, holding that the district courts of the United States possessed the powers of courts of admiralty, whether sitting as an instance or as a prize court, and sustained the jurisdiction of the district court of Maryland, and held that that court was competent to inquire into and decide whether restitution should be made to the complainants conformably to the laws of nations and the treaties and laws of the United States.

The question came again before this court in the case of The Santissima Trinidad, decided in 1822, 7 Wheat. 283, 5 L. ed. 454. In that case it was held that an illegal capture would be invested with the character of a tort, and that the original owners were entitled to restitution when the property was brought within our jurisdiction. The opinion was delivered by Mr. Justice Story, and, after a full discussion of the matter, the court held that such an illegal capture, if brought into the jurisdiction of the courts of the United States, was subject to condemnation and restitution to the owners, and the learned justice said:

'If, indeed, the question were entirely new, it would deserve very grave consideration, whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled that, as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign, asserted in his own courts or the courts of the power having cognizance of the capture itself for the purposes of prize. And, by analogy to this course of proceeding, the interposition of our own government right seem fit to have been required before cognizance of the wrong could be taken by our courts. But the practice from the beginning in this class of causes, a period of nearly thirty years, has been uniformly the other way; and it is now too late to disturb it. If any inconvenience should grow out of it, from reasons of state policy or executive discretion, it is competent for Congress to apply at its pleasure the proper remedy.' Page 349.

'Whatever may be the exemption of the public ship herself, and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our courts, for the purpose of examination and inquiry, and if a proper case be made out, for restitution to those whose possession has been devested by a violation of our neutrality; and if the goods are landed from the public ship in our ports, by the express permission of our own government, that does not vary the case, since it involves no pledge that, if illegally captured, they shall be exempted from the ordinary operation of our laws.' Page 354.

In the subsequent cases in this court this doctrine has not been departed from. L'Invincible, 1 Wheat. 238, 258, 4 L. ed. 80, 84; The Estrella, 4 Wheat. 298, 308-311, 4 L. ed. 574, 577, 578; La Amistad De Rues, 5 Wheat. 385, 390, 5 L. ed. 115, 116.

It is insisted that these cases involve illegal captures at sea, or violations of neutral obligation, not arising because of the use of a port by sending in a captured vessel and keeping her there in violation of our rights as a neutral. But we are at a loss to see any difference in principle between such cases and breaches of neutrality of the character here involved in undertaking to make of an American port a depository of captured vessels with a view to keeping them there indefinitely. Nor can we consent to the insistence of counsel for appellant that the prize court of the German Empire has exclusive jurisdiction to determine the fate of the Appam as lawful prize. The vessel was in an American port, and, under our practice, within the jurisdiction and possession of the district court, which had assumed to determine the alleged violation of neutral rights, with power to dispose of the vessel accordingly. The foreign tribunal, under such circumstances, could not oust the jurisdiction of the local court and thereby defeat its judgment. The Santissima Trinidad, supra, p. 355.

Were the rule otherwise than this court has frequently declared it to be, our ports might be filled, in case of a general war such as is now in progress between the European countries, with captured prizes of one or the other of the belligerents, in utter violation of the principles of neutral obligation which have controlled this country from the beginning.

The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neutral people.

It follows that the decree in each case must be affirmed. 

Notes