§ 361. Some writers[713] maintain that a neutral is freed from responsibility for a violation of neutrality through a belligerent attacking enemy forces in neutral territory, in case the attacked forces, instead of trusting for protection or redress to the neutral, defend themselves against the attack. This rule is adopted from the arbitral award in the case of the General Armstrong. In 1814, during war between Great Britain and the United States of America, the American privateer General Armstrong, lying in the harbour of Fayal, an island belonging to the Portuguese Azores, defended herself against an attack of an English squadron, but was nevertheless captured. The United States claimed damages from Portugal because the privateer was captured in a neutral Portuguese port. Negotiations went on for many years, and the parties finally agreed in 1851 upon arbitration to be given by Louis Napoleon, then President of the French Republic. In 1852 Napoleon gave his award in favour of Portugal, maintaining that, although the attack on the privateer in neutral waters comprised a violation of neutrality, Portugal could not be made responsible, on account of the fact that the attacked privateer chose to defend herself instead of demanding protection from the Portuguese authorities.[714] It is, however, not at all certain that the rule laid down in this award will find general recognition in theory and practice.[715]
[713] See, for instance, Hall, § 228, and Geffcken in Holtzendorff, IV. p. 701.
[714] See Moore, Arbitrations, II. pp. 1071-1132; Calvo, IV. § 2662; and Dana's note 208 in Wheaton, § 429.
[715] The case of the Reshitelni, which occurred in 1904, during the Russo-Japanese War, and is somewhat similar to that of the General Armstrong, is discussed above in § [320] (2). That no violation of neutrality took place in the case of the Variag and Korietz, is shown above in § [320] (1).
Mode of exacting Reparation from Belligerents for Violations of Neutrality.
§ 362. It is obvious that the duty of a neutral not to acquiesce in violations of neutrality committed by one belligerent to the detriment of the other obliges him to repair, so far as he can, the result of such wrongful acts. Thus, he must liberate[716] a prize taken in his neutral waters, or prisoners made on his territory, and the like. In so far, however, as he cannot, or not sufficiently, undo the wrong done, he must exact reparation from the offender. Now, no general rule can be laid down regarding the mode of exacting such reparation, since everything depends upon the merits of the individual case. Only as regards capture of enemy vessels in neutral waters has a practice grown up, which must be considered binding, and according to which the neutral must claim the prize, and eventually damages, from the belligerent concerned, and must restore her to the other party. Thus in 1800, during war between Great Britain and the Netherlands, Prussia claimed before the British Prize Court the Twee Gebroeders,[717] a Dutch vessel captured by the British cruiser L'Espiègle in the neutral maritime belt of Prussia. Sir William Scott ordered restoration of the vessel, yet he refused costs and damages, because the captor had not violated Prussian neutrality intentionally but only by mistake and misapprehension. Thus again, in 1805, during war between Great Britain and Spain, the United States claimed before the British Prize Court the Anna,[718] a Spanish vessel captured by the English privateer Minerva within their neutral maritime belt. Thus, further, in 1864, during the American Civil War, when the Confederate cruiser Florida was captured by the Federal cruiser Wachuset in the neutral Brazilian port of Bahia, Brazil claimed the prize. As the latter had sunk while at anchor in Hampton Roads, she could not be restored, but the United States expiated the violation of neutrality committed by her cruiser by court-martialing the commander; further, by dismissing her Consul at Bahia for having advised the capture; and, finally, by sending a man-of-war to the spot where the violation of neutrality had taken place for the special purpose of delivering a solemn salute to the Brazilian flag.[719]
[716] See article 3 of Convention XIII.
[717] 3 C. Rob. 162.
[718] 5 C. Rob. 373. See above, [vol. I. § 234].
[719] See Moore, VII. § 1334, p. 1090.