Angary of Ships

ABSTRACT: This article studies, analyses and systematises the institution of ship Angary, with greater emphasis, but not limited to historiographical aspects, with a dual focus: on the one hand, determining, analysing and conceptualising its characteristics from the perspective of international law and maritime law; and on the other, understanding its impact – possibly still relevant today – on maritime hull insurance coverage and charters.

KEYWORDS: Angary; Ship Requisition; Requisition Clause; Nationalisation; Expropriation.

I. The Concept of Angary. In maritime doctrine, the concept of ‘angary’ (Jus Angarie) has been associated or linked primarily with the study of Jus in bello, that is, the segment of international law that governs the conduct of the parties once an armed conflict – generally a war – has begun, focusing on the protection of those not participating in the hostilities and the limitation of methods of warfare.

Thus, then, and considering at least and most prominently one of the fundamental principles of the law of war, which is that of proportionality or the use of force appropriate to the military objective, the study and analysis of Angary takes on vital importance because of its main effect or influence on merchant ships that are not susceptible to being considered or affected by the status of warships.

Given the above, the right of Angary has been conceptualised, considering that, by virtue of this right, a State may requisition foreign non-military vessels – generally merchant ships – found in its ports, harbours or shipyards for military purposes, although also for commercial purposes, subject to appropriate compensation.¹ Based on this concept, some authors believe that this right can only be exercised in times of war, within the jurisdiction of the State invoking it, and in cases of urgent necessity. Hence, the property subject to seizure is enemy or friendly property if exercised by a belligerent State and belligerent property if exercised by a neutral State.²

The Angary of ships is therefore a legal institution, understood as the exceptional power of a State to coercively dispose of a foreign or even national ship within its territory for military purposes or in cases of extreme public necessity.

Due to its legal nature, however, it is closely linked to the study of the ways of acquiring ownership, but also as a particular case of limitation of ownership, fundamentally due to its characteristics determined on the basis of its temporality, compulsiveness and motivation.

Thus, it can be established that the Angary of ships constitutes a limitation on naval ownership or property (ratione navis materiae), insofar as it restricts the registered owner of said ship – shipowner or shipping company – from exercising the effects derived from the exercise of the Real Right of Property, namely, the use, enjoyment and disposal of the ship. This is further compounded by its temporary nature (ratione temporis), in that the Angary of the ship would last for as long as the period of war justifying the exercise of this right, and therefore cannot be extended or applied in times of peace or simple crisis.³ Its compulsive nature stems fundamentally from the act of requisitioning. Thus, requisitioning is understood as the counting and seizure of a ship, as well as horses, baggage, food and other supplies, for the purpose of military service. As will be seen below, the right of Angary is precisely given by the right of the prince (Arrêt de prince),⁴ but conceived by doctrine as a form of exercise of the “demanial” or eminent power of the State.⁵ Finally, its motivation or purpose (telos) corresponds, as has been pointed out, to the disposal of a ship for military purposes or a cause of extreme public necessity.

Notwithstanding the above, the right of Angary is characterised by the compensatory nature of the exercise of this State power. Classical doctrine has specified that compensation is a condition for the validity of the exercise of the right of Angary.⁶ Rosseau⁷ specified that, in this regard, two compensation systems have been recognised by international law: the first states that “compensation according to the rate granted to the national carrier under the charter party, which is, in fact, equivalent to compensation based on the replacement value on the day of payment of the compensation, and not on the day of requisition. The second case states that the compensation is “(...) calculated on the basis of the international value of the construction on the day of its loss.” It appears that the latter criterion is the most specific and applicable because it is essentially objective, without prejudice to the linear depreciation factors that could affect the requisitioned ship.

II. Angary in the History of Law

There is clarity and consensus that the state practice of Right of Angary dates back to the Roman Empire, where the power of the state was endowed with the authority to impose burdens on individuals for the transport of troops, supplies, or urgent messages. This has been noted, for example, in the Justinian Code (529 AD), which shows the use of the word as a noun and without distinction as to the subject matter to be seized, thus not limiting its exercise to ships: Nullus penitus cuius libet ordinis seu dignitatis, vel sacrosancta ecclesia, vel domus regia tempore expeditionis excusationem angari-arum seu parangarium habeat.⁸ The development of this institution began, however, with the requisitioning of carts and other means of land transport, until it slowly shifted to the requisitioning of ships, in line with the boom in maritime trade, the number of ships available for seizure, and, at the same time, the development of naval warfare.⁹

In the Middle Ages, when there was belligerence, it was common for states lacking transport capacity to seize neutral merchant ships in their ports, forcing them and their crews to transport troops, ammunition, and other objects in exchange for payment of freight in advance, presumably considered as due compensation. In 1158, Frederick I established a Code for Italians, stating that Has angarias imponere possunt navibus ille principes et respublicae, quoe iura maiestatis habent. Inter regalia enim referunter quoque navium praestationes, in c. un. quoe sint regalia.¹⁰ The foregoing is without prejudice to the fact that European monarchies reserved the right of Angary foreign ships anchored in their ports in order to reinforce their own fleets in the context of war. The practice was well recognised, although it was highly arbitrary, which led to complex diplomatic tensions and claims for compensation. This was even illustrated by van Bynkershoek, who stated that “ships found in the waters of another sovereign (...) may be captured according to a generally accepted custom.¹¹”

During the 18th and 19th centuries, Angary became established as a recurring practice of states at war, particularly in relation to merchant ships from neutral countries. Its recognition in classical international law doctrine linked this legal institution mainly to the principle of public necessity, although always under the veil of exceptionality. The only known court case in which the admissibility of exercising the right of Angary over a neutral state was disputed is Lauritzen et al v. Government of Chile. This case concerns compensation for Danish shipowners for temporarily depriving them of the use of their ships in view of the difficulties that the Second World War brought to maritime traffic and supply. The ruling is interesting because it deals with institutions such as sovereignty; the subjective public right to obtain justice; international custom; state of necessity; collision of rights; equity, among others. As principles of public international law are applied, the Chilean Supreme Court departs from the statist legal culture that prevailed in Chile at that time. It points out that the source of the obligation to compensate does not come from the contract or from tort liability. In essence, an unequal public burden was imposed, with effects similar to expropriation, and the imbalance had to be compensated.¹²

III. The Right of Angary in Comparison with Expropriation for Public Use and Nationalisation

It has been specified that the exercise of the right of Angary is attributable to a power of the belligerent State to temporarily requisition, in exchange for compensation, a ship, generally a merchant ship, for war or commercial purposes.

Its etymological meaning comes from the Latin word “angariae,” which literally means “to transport.” Thus, Jus Angariae is precisely the exceptional right of the belligerent State to temporarily seize ships for transport purposes, although it may focus precisely on the situational context that justifies the seizure, i.e., war, so that the requisition may be intended to affect that ship for that purpose.

The exercise of Angary poses a unique challenge in terms of how to acquire ownership of ships, as it is not a common method, in which the will of the parties – the State exercising Angary, and the shipowner or shipping company affected by the exercise of that right over its vessel – concur, as would be the case with the sale and purchase of ships, donation or exchange, in which the consent of both parties is always required for the formation of the contract.

Nor is it identified with the original modes of acquisition of ship property, even though part of its factual basis may occur, for example, in a shipyard during the interval between the completion of shipbuilding and the corresponding launch of the ship into the sea. Therefore, Angary cannot be associated with occupation either, as it does not generate ex novo ownership or, but rather a temporary appropriation justified by the cause of belligerent utility that motivates the exercise of this right.

Finally, it is pertinent to associate Angary with forced and exceptional acquisition, which, as has been suggested, justifies its validity in sovereign power and not in the idea of creating a private legal title such as those traditionally associated with the means of acquiring naval ownership. Hence, it is pertinent to establish a conceptual differentiation between Angary, on the one hand, and expropriation and nationalisation, on the other.

1. Comparison with Nationalisation

According to authors such as Katzarov, nationalisation involves the transformation of private property into state-owned or “people’s” property, based on favouring, in the hands of the state, control of the means of production and industries, passing from private hands to the national community, a specific property for the sake of satisfying the general interest.¹³

With regard to its conceptual roots, while Angary refers to situations of war or security emergencies, nationalisation responds to long-term economic and structural policies.¹⁴ As can be seen, the object of nationalisation falls on categories of goods or companies, such as natural resources and industries, but also transport, while Angary affects specific cases of ships present in a given port or under a given territorial jurisdiction.

Nationalisation is a permanent and general concept, both in its effects and in its duration. For its part, Angary is eminently exceptional and specific. For example, the former may apply to an entire shipping company, while the latter will apply to one or two ships of that shipping company, but without affecting the entire economic unit that is the shipping company itself.

Finally, it is possible to identify that nationalisation implies a true mode of acquisition of ownership by the State, while Angary operates on a provisional basis, unless it is transformed into definitive confiscation or requisition.

Thus, both institutions reveal a common underlying principle, which is the prevalence of the public interest over private property, but they differ in their scope, motivation and temporality.

2. Angaria and Expropriation for Public Utility

Expropriation is, according to doctrine, “the act by which a person is deprived of property under their control by unilateral decision of the State, for reasons of public utility as defined by law and upon payment of compensation to the expropriated party.¹⁵”

The purpose of expropriation is to satisfy infrastructure, urban development or general public interest projects; on the other hand, compulsory labour is limited to defence or security needs in emergency contexts.

At the same time, expropriation involves a formal process, generally judicial, with a declaration of public utility and a guarantee of prior compensation for those affected by the expropriation of their property. Compulsory service, on the other hand, operates without ordinary procedure, justified by the mere urgency of the context of belligerence that makes it necessary to requisition private naval property.

Among its effects, expropriation is definitive, generating a stable transfer of ownership of the property to the State, while Angary is temporary, unless it leads to definitive requisition.

In conclusion, it is possible to categorise Angary as a hypothesis similar to expropriation, but one that differs substantially in terms of temporality and the context in which it is attempted.

IV. Impact of the Exercise of the Right of Angary on Chartering and Maritime Insurance

It has been argued that Angary does not constitute a special case of nationalisation, or even expropriation, but rather falls under the category of a kind of temporary and compensated requisition.

For this reason, it is advisable to add or include a Requisition Clause (BIMCO Requisition Clause) in charter contracts, which, according to its wording, if the ship is requisitioned by the government of its flag during the term of the charter contract, it shall be considered off hire during that period, and any rent paid by that government in relation to that period shall be borne by the shipowners. The period during which the ship is requisitioned by that government shall be counted as part of the period provided for in the respective charter party.

This clause, however, deserves some particular comments.

Firstly, it is a contractual provision that must be modified or adapted, because although its application is only by analogy – since it has been drafted for express and specific cases of requisition - the right of Angary is not limited exclusively to the requisition of ships of the same flag, but may also apply to foreign ships. The lack of specificity regarding the inclusion of a right of Angary in a clause such as the one cited could cause serious inconveniences for the contracting parties to a charter, precisely because it does not contemplate the express case of requisitioning foreign vessels, even though it could conflict to some extent with the application of so-called war clauses for time charter and voyage charter contracts or others.

The wording of the requisition clause incorporates a period of duration for the respective requisition, which is understood to be specific and certain. In the case in question, the State exercising the right of Angary, in addition to expressing and providing compensation, must indicate a deadline for the subsequent return of the vessel (ratio temporis). This is relevant because if the period of requisition exceeds that initially determined by the State, or an approximate time freely agreed upon by the parties to the respective charter party, either contracting party shall have the option to cancel said contract without the other party being able to file a claim.

With regard to marine insurance, the right of Angary can be assimilated, as mentioned above, with the notion of risks arising from the “enemies of the prince” (hostes principis), but only from a historical perspective, in which Angary did not give the aggrieved shipowner the right to compensation, but was limited to political discretion or future diplomatic arrangements and negotiations.¹⁶

The doctrine of the “enemies of the prince” in classical maritime law and maritime insurance law, fundamentally from Roman law to Colbert’s Ordonnance de la Marine and the first insurance policies, understood that certain acts of sovereign power, such as requisition or seizure, were true political or sovereign risks, not attributable to the merchant who would suffer the Angary of his ship by a foreign power.¹⁷

The classic distinction between Perils of the Sea inherent to navigation and Perils of War and Acts of Sovereign Power leads to the conclusion that the latter had to be expressly agreed upon for the insurance to be effective.¹⁸ Under this hypothesis, then, if the shipowner had taken out marine insurance covering risks of war or acts of sovereign authority, the loss due to Angary could be considered fully indemnifiable. However, if he only had ordinary hull insurance, Angary was not covered, unless its inclusion in the aforementioned coverage had been expressly agreed upon.

In historical practice, hull insurers did cover Angary as a risk, but only under specific clauses that included “arrest, restraint or detainment by princes, rulers or people”. For example, the English SG Policy of 1779, and later the Institute War and Strikes Clauses, in the Lloyd’s market, expressly regulated these risks as insurable.¹⁹ Therefore, in the historical context of the lack or absence of compensation, the effectiveness of this type of coverage was necessary to fill that compensation gap. However, even later, when compensation already existed as a fundamental or essential part of Angary, marine insurance continued to serve a satisfactory purpose for shipowners in those cases where the compensation granted by the State was not sufficient or close to the real value of the requisitioned ship.

V. Conclusions

After navigating the archaic legal institution of the State’s right of Angary, it is possible to conclude that it is an exceptional figure of war risk, whose historical origin dates back to Roman and medieval law. In international law, it represents an exceptional mechanism of temporary appropriation that is still in force, in tension with the protection of private property and neutrality.

In maritime law, Angary does not fit as a hypothesis or mode of acquiring ownership, but rather as an extraordinary and very special form of state requisition, with more political than legal effects. It is comparable to nationalisation and expropriation, where Angary differs from the former in its specific, temporary and warlike nature, and from the latter in its urgency, formality and definitive effects.

Currently, its application is marginal, but it cannot be understood as a fully abolished institution; in fact, the only documented case of Angary involving neutral ships, Lauritzen et al. v. Government of Chile in 1955, attests to the fact that it is a legal institution that still exists.

Given that Angary still exists in current maritime law, it is possible to conceive of the impact that this institution continues to have on ship chartering, mainly with the appropriate wording of existing clauses such as the BIMCO Requisition Clause, or even the War Clauses. However, it is undoubtedly in the field of maritime insurance that there is a direct relationship with Angary, under the historical category of risks from “enemies of the prince”. The State that formerly exercised Angary did not compensate or did so only through political or diplomatic channels, so the historical insurance practice consisted of transferring that risk to the insurance market, provided that the shipowner had taken out express cover for acts of the prince or war. ■

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