Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

GERMAN SEIZURES. BUNDESRATH, HERZOG AND GENERAL.

THE BUNDESRATH.—It was reported to the English Government by Rear Admiral Sir Robert Harris, on December 5, 1899, that the German East African mail steamer Bundesrath had sailed from Aden for Delagoa Bay. He informed his Government that ammunition was "suspected but none ascertained;" that the Bundesrath had on board "twenty Dutch and Germans and two supposed Boers, three Germans and two Australians believed to be officers, all believed to be intending combatants, although shown as civilians; also twenty-four Portuguese soldiers."[8] On the twenty-ninth of the same month the Bundesrath was taken into Durban, about three hundred miles from Lorenzo Marques, under the escort of the British cruiser Magicienne. The German Government demanded the immediate release of the steamer upon the assurance made by the Hamburg owners that she carried no contraband. Great indignation was expressed in Hamburg, and a demand was made in the Chamber of Commerce that measures be taken to insure the protection of German commercial interests. A diplomatic note was sent by Germany protesting against the action of England. Lord Salisbury's reply on the part of his Government was that the Bundesrath was suspected of carrying ammunition in her cargo, and that it was known that she had on board a number of passengers who were believed to be volunteers for service with the Boers. He added, however, that no official details had been received other than those contained in the cable announcing the fact that the ship had been captured.[9] The German consul at Durban protested against the ship's being brought in there as prize, and his Government reiterated its request that she be released at once since she carried no contraband. The detention of a mail ship, it was asserted, interfered with public interests in addition to the loss which was inflicted upon the owners of the vessel.

[Footnote 8: Sessional Papers of the House of Commons, Correspondence respecting the Action of Her Majesty's Naval Authorities with reference to Certain Foreign Vessels, Africa No. I (1900), C. 33, p. I.]

[Footnote 9: Ibid., pp. 2-3.]

Admiral Harris reported on December 31 that the Bundesrath had changed the position of her cargo on being chased, a fact which was considered suspicious; that a partial search had revealed sugar consigned to a firm at Delagoa Bay, and railway sleepers and small trucks consigned to the same place. It was expected that a further search would reveal arms among the baggage of the Germans on board who admitted that they were going to the Transvaal. England's senior naval officer at Durban was of the opinion that there was ample ground for discharging the cargo and searching it. The request was accordingly made that authority be given for throwing the ship into a prize court, and that instructions be forwarded as to the proper disposal of the passengers on board.

Despite the protest of Germany that the Bundesrath carried neither contraband nor volunteers for the Transvaal, instructions were issued that a prize court should take over the ship and a search be at once made by competent authorities. Orders were given at the same time, however, that until it became evident that the Bundesrath was carrying contraband, "other German mail steamers should not be arrested on suspicion only."[10]

[Footnote 10: Ibid., p. 4.]

Instructions were also issued by the British Government that application be made to the prize court for the release of the mails; that if they were released they were to be handed over to the German consul and to be hastened to their destination, "either by an English cruiser if available, or by a mail steamer, or otherwise."[11] It was pointed out that the ship and its cargo, including the mails, were in the custody of the court and except by the order of that tribunal should not be touched. It was urged, however, that every facility for proceeding to his destination be afforded to any passenger whom the court considered innocent.

[Footnote 11: Ibid., pp. 5-6; Chamberlain to Hely-Hutchinson, Jan. 3, 1900.]

The German consul at Durban reported that no contraband had been found on the Bundesrath although a thorough search had been made. The failure to discover goods of a contraband character apparently rendered the action of Great Britain's naval authorities unjustifiable. Germany indeed insisted that had there been contraband disclosed even this fact would not have given England any right to interfere with neutral commerce from one neutral port to another and insisted that the task of preventing the transmission of contraband to the Transvaal lay with the Portuguese Government.[12] The fact was also pointed out that when war first broke out, the steamship company owning the Bundesrath had discharged shipments of a contraband character at Dar-es-Salaam as well as at Port Said in order to obviate any possible complication, and since then had issued strict orders that contraband should not be embarked.

[Footnote 12: Ibid., p. 7; Lascelles to Salisbury, Jan. 5, 1900.]

Great Britain expressed herself as "entirely unable to accede to … the contention that a neutral vessel was entitled to convey without hindrance contraband of war to the enemy, so long as the port at which she intended to land it was a neutral port."[13] The novel suggestion was made by Germany that "the mail steamer be allowed to go on bail so as not to interfere more than was necessary with her voyage," but the English representative doubted the practicability of such a plan. He was in favor of the suggestion if it could be adopted under suitable conditions, but since the ship had probably gone into the hands of the prize court, that tribunal, he said, would have to act independently.

[Footnote 13: Ibid., p. 7; Salisbury to Lascelles, Jan. 4, 1900.]

On January 5 the mails and the passengers were released by order of the court and were taken on board the German warship, Condor, for Delagoa Bay. But not until two weeks later were the ship and its cargo released.[14] The only reason assigned by the court for the release was that no contraband had been discovered by the search.

[Footnote 14: Ibid., p. 22; Hely-Hutchinson to Chamberlain, Jan. 18, 1900.]

Since the three cases which attracted most attention, the Bundesrath, the Herzog, and the General, with a few unimportant exceptions as to details, were similar in regard to the points of law involved, the facts in the remaining cases will be outlined. It will then be possible to discuss the grounds upon which Great Britain asserted the right of seizure, and the objections which Germany made to the English assertion.

THE HERZOG.—On December 16, 1899, a cable from the commander-in-chief of the Mediterranean station announced to the British Foreign Office that the German "steamship" Herzog had left the Suez Canal on the twelfth for South Africa carrying "a considerable number of male passengers, many in khaki, apparently soldiers" although "no troops were declared." On the same day an inquiry was made by the commander at the Cape whether "a number of passengers dressed in khaki" could be "legally removed" from the Herzog.[15] On the twenty-first the senior naval officer at Aden reported that the Herzog had sailed on the eighteenth for Delagoa Bay conveying, "probably for service in the Transvaal, about forty Dutch and German medical and other officers and nurses."[16] Although instructions had been issued on the first of January that neither the Herzog nor any other German mail steamer should be arrested "on suspicion only" until it became evident that the Bundesrath, which was then being searched, really carried contraband, the Herzog was taken into Durban as prize on the sixth by the British ship Thetis.

[Footnote 15: Ibid. p. 1; Admiralty to Foreign Office, Nos. 1 and 2.]

[Footnote 16: Ibid., pp. 2, 4, II.]

The consul at Durban as well as the commander of the German man-of-war Condor protested in the name of their Government against the seizure of the Herzog. They urged that the vessel be allowed to proceed since her captain had given the assurance that there were no contraband goods on board; that the only suspected articles were the mails, and certain small iron rails and railway sleepers which were destined for the neutral port of Delagoa Bay. On board the Herzog, however, there were three Red Cross expeditions, one of which had no official connection with the legitimate Red Cross societies. It had no official character but had been organized by a committee, the "Hilfs Ausshuss für Transvaal in Antwerp."[17] The other Red Cross expeditions were legitimate, one being German and the other Dutch.

[Footnote 17: Ibid., p. 16.]

On the seventh instructions were issued that the Herzog be released at once, unless guns or ammunition were revealed by a summary search. But on the following day the order was added that proceedings might be discontinued and the ship released unless "provisions on board are destined for the enemy's Government or agents, and are also for the supply of troops or are especially adapted for use as rations for troops."[18] On the ninth the Herzog was released, arrangements having been made two days before for the passage of one of the passengers, the Portuguese Governor of Zambesi, to Delagoa Bay by the Harlech Castle.

[Footnote 18: Ibid., pp. 14, 16.]

THE GENERAL.—On the fourth of January the senior naval officer at Aden had reported to the English admiralty that the German vessel General, another East African mail steamer, was under detention there upon strong suspicion and was being searched.[19] The German Government at once entered a strong protest and demanded in rather brusque terms "that orders be given for the immediate release of the steamer and her cargo, for that portion of her cargo which has already been landed to be taken on board again, and for no hindrances to be placed in the way of the ship continuing her voyage to the places mentioned in her itinerary." Count Hatzfelt, the German representative in London, continued: "I am further instructed to request your Excellency [the Marquis of Salisbury] to cause explicit instructions to be sent to the Commanders of British ships in African waters to respect the rules of international law, and to place no further impediments in the way of the trade between neutrals."[20]

[Footnote 19: Ibid., p. 6.]

[Footnote 20: Ibid., p. 8.]

To the form and imputations of this request the British Government took exception, and the situation appeared ominous for a time. Instructions had been issued, however, that unless the General disclosed contraband after a summary search it was undesirable to detain the ship since she carried the mails. The report of the naval officer at Aden disclosed the fact that he had boarded and detained the ship at that place. The ground for his action was that he had been informed that a number of suspicious articles were on board for Delagoa Bay, including boxes of ammunition stowed in the main hold, buried under reserve coal. An inspection of the manifest had shown several cases of rifle ammunition for Mauser, Mannlicher and sporting rifles consigned to Mombasa, but this consignment was believed to be bona fide. Other suspected articles on the manifest were wagon axles and chemicals and at the bottom of the hold was a consignment of food for Delagoa Bay, with boilers and heavy machinery stowed on top of the reserve coal. The General carried besides a number of Flemish and German passengers for Delagoa Bay, in plain clothes but of "military appearance," some of whom were believed to be trained artillerymen. It was suggested that this last doubt could be cleared up only by a search of the private baggage of the persons suspected, but it was not considered by the British Foreign Office that there was "sufficient evidence as to their destination to justify further action on the part of the officers conducting the search."[21]

[Footnote 21: Ibid., p. 22; see also pp. 10, 17, 21.]

On the seventh the General was released, but was not able to sail until the tenth, a delay due to the labor of restowing her cargo, which was done as quickly as possible. The crew of the English ship Marathon, assisted by one hundred coolies, having worked day and night after the arrival of the ship on the fourth, completed the search on the sixth but were unable to complete the restowal until the morning of the tenth.