his men. It would make a government practically an insurer, as against the act of any soldier, of all private property along a line of march, except such as might be destroyed in the course of military operations or regularly requisitioned by the commander. Such a principle finds no support in the United States, nor is it thought to be in accordance with the leading decisions of arbitral tribunals, nor with the views of the best writers on international law." (Foreign Relations of the United States, 1907, Part 1, pp. 392–98.) § 49. PROPERTY DESTROYED IN THE COURSE OF MILITARY OPERATIONS RIGGS'S CASE Mexican Claims Commission: Convention of July 4, 1868 DAMAGE done to property in consequence of battles being fought upon it between the belligerents is to be ascribed to the hazards of war, and cannot be made the foundation of a claim against the government of the country in which the engagement took place. (As given by Moore: International Arbitrations, vol. IV, p. 3668.) THE MANILA CABLE (1899) JANUARY 16, 1899, the Secretary of State requested the opinion of the Attorney-General relative to the obligation of the United States to pay a claim for damages to the amount necessary to repair the Manila cable belonging to the British Eastern Extension Australasia and China Telegraph Company cut by Admiral Dewey in territorial waters during the war with Spain. On February 1, 1899, Attorney-General Griggs gave his opinion in part as follows: "It is true, as suggested in that opinion, that a cable is a new and peculiar species of property and that a precedent based upon the cutting of a cable is difficult to find; but the strict law applicable to the case does not, on that account, become doubtful. "Property of a neutral permanently situated within the territory of our enemy is, from its situation alone, liable to damage from the lawful operations of war, which this cutting is conceded to have been, and no compensation is due for such damage. "It is said, however, that this rule has never been applied to a cable; that the whole utility of the cable over many miles is as much destroyed by cutting it in territorial waters as by cutting it on the high seas, which last act, it is claimed, would undoubtedly entitle the owners to compensation; and that the United States admiral did not merely aim at preventing the use of the cable by the Spaniards, but also at using it himself. "Do these reasons withdraw this property from the rule which has been stated? "In the first place, that is a rule applying to property of a neutral which he has placed within the territory of our enemy, which property our necessary military operations damage or destroy. It takes no account of the character of the property, but only of its location, and no account of any motives of its owner or of the military officer who finds it necessary to meddle with it in hurting the enemy. He sees it across his path and brushes it away, and the rule cited says that the owner, by putting his property in the country, took the chance of a war against it and of all lawful military acts to carry it to a successful issue. "It argues nothing that cables have not heretofore been the subject of any discussion of this rule. The same might be said of many kinds of property, either because they happened not to be injured or because the rule was so well understood that a discussion was deemed superfluous. It is necessary to show why the cable property is exempt from the rule, and not that the rule has ever been applied to it. "... If the act within territorial waters had effectually and permanently paralyzed the whole cable it might possibly be regarded," said the Attorney-General, "as one whole thing, and not situated in the enemy's country." But because of the circumstances of the case under consideration he considered that the argument, based upon the assertion that the injury resulted from the cutting of the cable within territorial waters, did not apply to or affect "the belligerent's rights with regard to [neutral property] . . . within the enemy's country." The opinion concluded as follows: "To say that the American Admiral desired to use the cable himself, as well as to prevent the Spanish Government from using it, is but to attribute to him a motive in addition to one which justified his act. This can in no way diminish the right to cut the cable, nor, seeing that he did not use it, can it give rise to any different rule as to compensation. "I am of opinion, therefore, that, upon the law of the case, there is no ground for the claim to indemnity. (Opinions of the Attorneys-General, vol. XXII, pp. 315-18.) THE CASE OF WILLIAM HARDMAN American and British Claims Commission, June 18, 1913 [Award of the Tribunal] ON or about July 12, 1898, during the war between the United States and Spain, while the town of Siboney, in Cuba, was occupied by the United States armed forces, certain houses were set on fire and destroyed by the military authorities in consequence of sickness among the troops and from fear of an outbreak of yellow fever. In one of these houses were some furniture and personal property belonging to a certain William Hardman, a British subject, which were entirely destroyed with the house itself. The British Government claim, on behalf of the said William Hardman, the sum of £93 as the value of the said personal property and furniture, together with interest at 4 per cent. for thirteen years from March, 1899, when the claim was brought to the notice of the United States military authorities in Cuba, to the 26th of April, 1912, when the schedule to the Pecuniary Claims Agreement, in which the claim was included, was confirmed, i.e., £49 the full claim being, therefore, for the total sum of £142. The United States denies that it is liable in damages for the destruction of the personal property of William Hardman, and contends that the United States military authorities who were conducting an active campaign in Cuba, had a right, in time of war, to destroy private property for the preservation of the health of the army of invasion and that such authorized destruction constituted an act of military necessity or an act of war, and did not give rise to any legal obligation to make compensation. The two parties admit the facts as above related and agree as to those facts. The British Government do not contend that Hardman's nationality entitled him to any special consideration. At the hearing of the case they did not maintain their former contention that there is no sufficient evidence of the same interest to destroy the furniture as the house. They admit that necessary war losses do not give rise to a legal right of compensation. But they contend that the destruction of Hardman's property was not a war loss in that it did not constitute a necessity of war, but a measure for better securing the comfort and health of the United States troops, and that in that respect no private property can be destroyed without compensation. The question to be decided, therefore, is not whether generally speaking the United States military authorities had a right, in time of war, to destroy private property for the preservation of the health of the army, but specially whether under the circumstances above related, the destruction of the said personal property was or was not a necessity of war, and an act of war. It is shown by an affidavit of Brigadier General George H. Torney, Surgeon General, United States Army (United States answer, Exhibit 3), who personally was present at that time at Siboney and familiar with the sanitary conditions then existing in that place, that the sanitary conditions at Siboney were such as made it advisable and necessary to destroy by fire all buildings and their contents which might contain the germs of yellow fever. No contrary evidence is presented against this statement, the truth of which is not questioned. In law, an act of war is an act of defense or attack against the enemy and a necessity of war is an act which is made necessary by the defense or attack and assumes the character of vis major. In the present case, the necessity of war was the occupation of Siboney, and that occupation which is not criticized in any way by the British Government, involved the necessity, according to the medical authorities above referred to, of taking the said sanitary measures, i.e., the destruction of the houses and their contents. In other words, the presence of the United States troops at Siboney was a necessity of war and the destruction required for their safety was consequently a necessity of war. In the opinion of this Tribunal, therefore, the destruction of Hardman's personal property was a necessity of war, and, according to the principle accepted by the two governments, it does not give rise to a legal right of compensation. On the other hand, notwithstanding the principle generally recognized in international law that necessary acts of war do not imply the belligerent's legal obligation to compensate, there is, nevertheless, a certain humanitary conduct generally followed by nations to compensate the private war losses as a matter purely of grace and favor, when in their own judgment they feel able to do so, and when the sufferer appears to be specially worthy of interest. Although there is no legal obligation to act in that way, there may be a moral duty which cannot be covered by law, because it is grounded only on an inmost sense of human assistance, and because its fulfilment depends on the economical and political condition of the nation, each nation being its own judge in that respect. In this connection the Tribunal cannot refrain from pointing out the various benevolent appreciations given by the Department of State in this particular case, and commends them to the favorable consideration of the Government of the United States as a basis for any friendly measure which the special condition of the sufferer may justify. Upon these motives, the decision of the Tribunal in this case is that the claim of the British Government be disallowed. The President of the Tribunal, OTTAWA, June 18, 1913. [Signed] HENRI FROMAGEOT. (American Journal of International Law, October, 1913, pp. 879-82.) |