International Law Part 31

The general penalty for the performance of unneutral service is the forfeiture of the vessel so engaged.

-- 134. Visit and Search

(_a_) "The right of visiting and searching merchant ships upon the seas--whatever be the ships, whatever be the cargoes, whatever be the destinations--is an incontestable right of the lawfully commissioned cruisers of a belligerent nation,"[456] is the statement of the general principle laid down in the case of the _Maria_. Judge Story says that the right is "allowed by the general consent of nations in the time of war and limited to those occasions."[457] There is, however, a qualified right of search in the time of peace in case of vessels suspected of piracy or of slave trade. Under these circ.u.mstances the right must be exercised with the greatest care, otherwise the searching party is liable to damages.[458]

(_b_) =The Object.= In the time of war the right is exercised in order to secure from the neutral the observance of the laws of neutrality, or specifically, according to the regulations of the United States:--

1. To determine the nationality of a vessel.

+Note.+ The right of approach to ascertain the nationality of a vessel is generally allowed in time of peace. "International Law," Naval War College, p. 165.

2. To ascertain whether contraband of war is on board.

3. To ascertain whether a breach of blockade is intended or has been committed.

4. To ascertain whether the vessel is engaged in any capacity in the service of the enemy.[459]

(_c_) =The Method.= The vessel is usually brought to by firing a gun with a blank charge, or if this is not sufficient, a shot across the bows or even by the use of necessary force. The cruiser should then send a small boat with an officer to conduct the search. Arms may be carried in the boat but not upon the persons of the men. The officer should not be accompanied on board the vessel by more than two men. He should examine the papers of the vessel. "If the papers show contraband, an offense in respect to blockade, or enemy service, the vessel should be seized; otherwise she should be released, unless suspicious circ.u.mstances justify a further search. If the vessel be released, an entry in the log book to that effect should be made by the boarding officer."[460]

(_d_) =Ship's Papers.= The papers expected to be on board as evidence of the character of the vessel are:--

1. The register.

2. The crew and pa.s.senger list.

3. The log book.

4. A bill of health.

5. The manifest of cargo.

6. A charter party, if the vessel is chartered.

7. Invoices and bills of lading.[461]

(_e_) =Grounds of Seizure.= It is generally held that a vessel may be seized in case of:--

1. Resistance to visit and search.

2. Clear evidence of attempt to avoid visit and search by escape.

3. Clear evidence of illegal acts on the part of the neutral vessel.

4. Absence of or defect in the necessary papers.

(_a_) Fraudulent papers.

(_b_) Destruction, defacement, or concealment of papers.

(_c_) Simple failure to produce regular papers.

(_f_) =Seizure.= In case of seizure it is held that the neutral vessel and property vests in the neutral till properly condemned by a duly authorized court. The captor is therefore under obligation:--

1. To conduct the seizure with due regard to the person and property of the neutral.

2. To exercise reasonable diligence to bring the capture quickly to a port for its adjudication.

3. To guard the capture from injury so far as within his power.

Failure to fulfill these obligations renders the belligerent liable to damages.[462]

In the Chino-j.a.panese War of 1894, the j.a.panese war vessels visited eighty-one neutral vessels but only one was brought to the prize court.[463]

-- 135. Convoy

A neutral merchant vessel is sometimes placed under the protection of a ship of war of its own state, and is then said to be under convoy.

It has been claimed by many authorities, particularly those of Continental Europe, that such a merchant vessel is exempt from visitation and search upon the declaration of the commander of the neutral ship of war that the merchantman is violating no neutral obligation. England has uniformly denied the validity of this claim.

Practice has been very divergent in most states. From the middle of the seventeenth century the right of convoy has been a.s.serted. From the end of the eighteenth century the claim has gained in importance.[464] The United States has made many treaties directly recognizing the practice, and instructs naval officers that, "Convoys of neutral merchant vessels, under escort of vessels of war of their own State, are exempt from the right of search, upon proper a.s.surances, based on thorough examination, from the commander of the convoy."[465]

In the war of 1894,--

"j.a.pan ordered naval officers to give credence to the declaration of a convoying officer. The idea was simply that, as generosity was the chief object of j.a.pan, she did not wish to search and make actual inspection in order to verify the character of escorted merchantmen and goods, trusting to the honor of neutral officers. This was the main idea of the j.a.panese in adopting the Continental principle regarding convoy; but she was not, in actual cases, so lax as to admit exorbitant claims of the right of convoy, such as an English admiral made for all British ships in the China Sea."[466]

The present tendencies seem to indicate an inclination to admit the right of convoy within reasonable limits and under reasonable regulations.[467]

-- 136. Blockade

Blockade is the obstruction of communication with a place in the possession of one of the belligerents by the armed forces of the other belligerent. The form which blockade takes in most cases is that of obstruction of communication by water.

(_a_) =Historical.= In 1584 Holland declared the ports of Flanders blockaded. Holland did not, however, maintain this declaration by ships of war; indeed, in the early days there were no such ships as would make the maintenance of a blockade possible. Such paper blockades were common in the following centuries, and all the ports of a state were frequently proclaimed blockaded, even though there might be no force in the neighborhood to insure that the blockade would not be violated.

Treaties of the eighteenth century show an inclination in the states to lessen the evils of blockade by proclamation. The growth of neutral trade led to the adoption of rules for its greater protection. The armed neutrality of 1780 a.s.serted in its proclaimed principles that a valid blockade should involve such a disposition of the vessels of the belligerent proclaiming the blockade as to make the attempt to enter manifestly dangerous.[468] The armed neutrality of 1800 a.s.serted that a notice from the commander of the blockading vessels must be given to the approaching neutral vessel. During the Napoleonic wars there was a return to the practice of issuing proclamations with the view to limiting neutral commerce. The English Orders in Council of 1806 and 1807, and the Berlin Decree of 1806, and the Milan Decree of 1807, by which Napoleon attempted to meet the English Orders, were the expression of the extremest belligerent claims in regard to the obstruction of neutral commerce. The treaties of 1815 said nothing in regard to blockade. The practice and theory varied till, by the Declaration of Paris in 1856, a fixed basis was announced in the provision that "Blockades, in order to be binding, must be effective."[469]

(_b_) =Conditions of Existence.= A blockade presupposes,--

1. A state of war.

2. Declaration by the proper authority.

3. Notification of neutral states and their subjects.

4. Effective maintenance.