International Law. A Treatise Volume Ii Part 27

[Footnote 394: Article 40 of the Naval Prize Bill of 1911 runs as follows:--

(1) His Majesty in Council may, in relation to any war, make such orders as may seem expedient according to circ.u.mstances for prohibiting or allowing, wholly or in certain cases or subject to any conditions or regulations or otherwise as may from time to time seem meet, the ransoming or the entering into any contract or agreement for the ransoming of any ship or goods belonging to any of His Majesty's subjects, and taken as prize by any of His Majesty's enemies.

(2) Any contract or agreement entered into, and any bill, bond, or other security given for ransom of any ship or goods, shall be under the exclusive jurisdiction of the High Court as a Prize Court (subject to appeal to the Supreme Prize Court) and if entered into or given in contravention to any such Order in Council shall be deemed to have been entered into or given for an illegal consideration.

(3) If any person ransoms or enters into any contract or agreement for ransoming any ship or goods, in contravention of any such Order in Council, he shall for every such offence be liable to be proceeded against in the High Court at the suit of His Majesty in his office of Admiralty, and on conviction to be fined, in the discretion of the Court, any sum not exceeding five hundred pounds.]

[Footnote 395: See Hall, -- 151, p. 479:--"The English Courts refuse to accept such arrangements (for ransom) from the effect of the rule that the character of an alien enemy carries with it a disability to sue, and compel payment of the debt indirectly through an action brought by the imprisoned hostage for the recovery of his freedom." The American Courts, in contradistinction to the British, recognise ransom bills. See on the one hand, the case of _Cornu_ v. _Blackburne_ (1781), 2 Douglas, 640, _Anthon_ v. _Fisher_ (1782), 2 Douglas, 649 note, the _Hoop_, 1 C.

Rob. 201; and, on the other, _Goodrich_ and _De Forest_ v. _Gordon_ (1818), 15 Johnson, 6.]

[Footnote 396: The matter of ransom is treated with great lucidity by Twiss, II. ---- 180-183; Boeck, Nos. 257-267; Dupuis, Nos. 269-277.]

[Sidenote: Loss of Prize, especially Recapture.]

-- 196. A prize is lost--(1) when the captor intentionally abandons her, (2) when she escapes through being rescued by her own crew, or (3) when she is recaptured. Just as through capture the prize becomes, according to International Law, the property of the belligerent whose forces made the capture, provided a Prize Court confirms the capture, so such property is lost when the prize vessel becomes abandoned, or escapes, or is recaptured. And it seems to be obvious, and everywhere recognised by Munic.i.p.al Law, that as soon as a captured enemy merchantman succeeds in escaping, the proprietorship of the former owners revives _ipso facto_.

But the case is different when a captured vessel, whose crew has been taken on board the capturing vessel, is abandoned and afterwards met and taken possession of by a neutral vessel or by a vessel of her home State. It is certainly not for International Law to determine whether or not the original proprietorship revives through abandonment. This is a matter for Munic.i.p.al Law. The case of recapture is different from escape. Here too Munic.i.p.al Law has to determine whether or no the former proprietorship revives, since International Law lays down the rule only that recapture takes the vessel out of the property of the enemy and brings her into the property of the belligerent whose forces made the recapture. Munic.i.p.al Law of the individual States has settled the matter in different ways. Thus, Great Britain, by section 40 of the Naval Prize Act, 1864, enacted that the recaptured vessel, except when she has been used by the captor as a ship of war, shall be restored to her former owner on his paying one-eighth to one-fourth, as the Prize Court may award, of her value as prize salvage, no matter if the recapture was made before or after the enemy Prize Court had confirmed the capture.[397] Other States restore a recaptured vessel only when the recapture was made within twenty-four hours[398] after the capture occurred, or before the captured vessel was conducted into an enemy port, or before she was condemned by an enemy Prize Court.

[Footnote 397: Article 30 of the Naval Prize Bill introduced in 1911 simply enacts that British merchantmen or goods captured by the enemy and recaptured by a British man-of-war shall be restored to the owner by a decree of the Prize Court.]

[Footnote 398: So, for instance, France; see Dupuis, Nos. 278-279.]

[Sidenote: Fate of Prize.]

-- 197. Through being captured and afterwards condemned by a Prize Court, a captured enemy vessel and captured enemy goods become the property of the belligerent whose forces made the capture. What becomes of the prize after the condemnation is not for International, but for Munic.i.p.al Law to determine. A belligerent can hand the prize over to the officers and crew who made the capture, or can keep her altogether for himself, or can give a share to those who made the capture. As a rule, prizes are sold after they are condemned, and the whole or a part of the net proceeds is distributed among the officers and crew who made the capture. For Great Britain this distribution is regulated by the "Royal Proclamation as to Distribution of Prize Money" of August 3, 1886.[399]

There is no doubt whatever that, if a neutral subject buys a captured ship after her condemnation, she may not be attacked and captured by the belligerent to whose subject she formerly belonged, although, if she is bought by an enemy subject and afterwards captured, she might be restored[400] to her former owner.

[Footnote 399: See Holland, _Prize Law_, pp. 142-150.]

[Footnote 400: See above, -- 196.]

[Sidenote: Vessels belonging to Subjects of Neutral States, but sailing under Enemy Flag.]

-- 198. It has been already stated above in -- 89 that merchantmen owned by subjects of neutral States but sailing under enemy flag are vested with enemy character. It is, therefore, evident that they may be captured and condemned. As at present no non-littoral State has a maritime flag, vessels belonging to subjects of such States are forced to navigate under the flag of another State,[401] and they are, therefore, in case of war exposed to capture.

[Footnote 401: See above, vol. I. -- 261.]

[Sidenote: Effect of Sale of Enemy Vessels during War.]

-- 199. Since enemy vessels are liable to capture, the question must be taken into consideration whether the fact that an enemy vessel has been sold during the war to a subject of a neutral or to a subject of the belligerent State whose forces seized her, has the effect of excluding her appropriation. It is obvious that, if the question is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property captured by selling their vessels. The question of transfer of enemy vessels must, therefore, be regarded as forming part of the larger questions of enemy character and has consequently been treated in detail above, -- 91.

[Sidenote: Goods sold by and to Enemy Subjects during War.]

-- 200. If a captured enemy vessel carries goods consigned by enemy subjects to subjects of neutral States, or to subjects of the belligerent whose forces captured the vessel, they may not be appropriated, provided the consignee can prove that he is the owner. As regards such goods found on captured enemy merchantmen as are consigned to enemy subjects but have been sold _in transitu_ to subjects of neutral States, no unanimous practice of the different States is in existence. The subject of goods sold _in transitu_ must--in the same way as the question of transfer of enemy vessels--be considered as forming part of the larger question of enemy character. It has, for this reason, been treated above, -- 92.

IV

VIOLENCE AGAINST ENEMY PERSONS

See the literature quoted above at the commencement of -- 107. See also Bonfils, Nos. 1273-1273'3.

[Sidenote: Violence against Combatants.]

-- 201. As regards killing and wounding combatants in sea warfare and the means used for the purpose, customary rules of International Law are in existence according to which only those combatants may be killed or wounded who are able and willing to fight or who resist capture. Men disabled by sickness or wounds, or such men as lay down arms and surrender or do not resist capture, must be given quarter, except in a case of imperative necessity or of reprisals. Poison, and such arms, projectiles, and materials as cause unnecessary injury, are prohibited, as is also killing and wounding in a treacherous way.[402] The Declaration of St. Petersburg[403] and the Hague Declaration prohibiting the use of expanding (Dum-Dum)[404] bullets, apply to sea warfare as well as to land warfare, as also do the Hague Declarations concerning projectiles and explosives launched from balloons, and projectiles diffusing asphyxiating or deleterious gases.[405]

[Footnote 402: See the corresponding rules for warfare on land, which are discussed above in ---- 108-110. See also U.S. Naval War Code, article 3.]

[Footnote 403: See above,-- 111.]

[Footnote 404: See above, -- 112.]

[Footnote 405: See above, ---- 113 and 114.]

All combatants, and also all officers and members of the crews of captured merchantmen, could formerly[406] be made prisoners of war.

According to articles 5 to 7 of Convention XI. of the Second Peace Conference--see above in -- 85--such members of the crews as are subjects of neutral States may never be made prisoners of war; but the captain, officers, and members of the crews who are enemy subjects, and, further, the captain and officers who are subjects of neutral States may be made prisoners of war in case they refuse to be released on parole. As soon as such prisoners are landed, their treatment falls under articles 4-20 of the Hague Regulations; but as long as they are on board, the old customary rule of International Law, that prisoners must be treated humanely,[407] and not like convicts, must be complied with. The Hague Convention for the adaptation of the Geneva Convention to sea warfare enacts, however, some particular rules concerning the shipwrecked, the wounded, and the sick who, through falling into the hands of the enemy, become prisoners of war.[408]

[Footnote 406: This was almost generally recognised, but was refused recognition by Count Bismarck during the Franco-German War (see below, -- 249) and by some German publicists, as, for instance, Lueder in Holtzendorff, IV. p. 479, note 6.]

[Footnote 407: See Holland, _Prize Law_, -- 249, and U.S. Naval War Code, articles 10, 11.]

[Footnote 408: See below, -- 205.]

[Sidenote: Violence against Non-combatant Members of Naval Forces.]

-- 202. Just as military forces consist of combatants and non-combatants, so do the naval forces of belligerents. Non-combatants, as, for instance, stokers, surgeons, chaplains, members of the hospital staff, and the like, who do not take part in the fighting, may not be attacked directly and killed or wounded.[409] But they are exposed to all injuries indirectly resulting from attacks on or by their vessels.

And they may certainly be made prisoners of war, with the exception of members of the religious, medical, and hospital staff, who are inviolable according to article 10 of the Hague Convention for the adaptation to maritime warfare of the principles of the Geneva Convention.[410]

[Footnote 409: See U.S. Naval War Code, article 3.]

[Footnote 410: See below, -- 209.]

[Sidenote: Violence against Enemy Individuals not belonging to the Naval Forces.]

-- 203. Since and so far as enemy individuals on board an attacked or seized enemy vessel who do not belong to the naval forces do not take part in the fighting, they may not directly be attacked and killed or wounded, although they are exposed to all injury indirectly resulting from an attack on or by their vessel. If they are mere private individuals, they may as an exception only and under the same circ.u.mstances as private individuals on occupied territory be made prisoners of war.[411] But they are nevertheless, for the time they are on board the captured vessel, under the discipline of the captor. All restrictive measures against them which are necessary are therefore lawful, as are also punishments, in case they do not comply with lawful orders of the commanding officer. If they are enemy officials in important positions,[412] they may be made prisoners of war.

[Footnote 411: See U.S. Naval War Code, article 11, and above, -- 116.]

[Footnote 412: See above, -- 117.]

V

TREATMENT OF WOUNDED AND SHIPWRECKED

Perels, -- 37--Pillet, pp. 188-191--Westlake, II. pp.

275-280--Moore, VII. -- 1178--Bernsten, -- 12--Bonfils, Nos.

1280-1280'9--Pradier-Fodere, VIII. No. 3209--U.S. Naval War Code, articles 21-29--Ferguson, _The Red Cross Alliance at Sea_ (1871)--Houette, _De l'extension des principes de la Convention de Geneve aux victimes des guerres maritimes_ (1892)--Cauwes, _L'extension des principes de la Convention de Geneve aux guerres maritimes_ (1899)--Holls, _The Peace Conference at the Hague_ (1900), pp. 120-132--Boidin, pp. 248-262--Dupuis, _Guerre_, Nos.

82-105--Meurer, II. ---- 74-87--Higgins, pp. 382-394--Lemonon, pp.