International Law. A Treatise Volume Ii Part 60

(1) According to article 44, a vessel which has been stopped for carrying contraband and which is not herself liable to be confiscated on account of the proportion of contraband on board, may--not must--when the circ.u.mstances permit it, be allowed to continue her voyage in case she hands over the contraband cargo to the captor. In such a case the captor is at liberty to destroy the contraband handed over to him. But the matter must in any case be brought before a Prize Court. The captor must therefore enter the delivery of the contraband on the log-book of the vessel so stopped, and the master of the latter must give duly certified copies of all relevant papers to the captor.

(2) According to article 54, the captor may--see below, -- 431--exceptionally, in case of necessity, demand the handing over, or may proceed himself to the destruction, of any absolute or conditional contraband goods found on a vessel which is not herself liable to condemnation, if the taking of the vessel into the port of a Prize Court would involve danger to the safety of the capturing cruiser or to the success of the operations in which she is engaged at the time. But the captor must, nevertheless, bring the case before a Prize Court. He must, therefore, enter the captured goods on the log-book of the stopped vessel, and must obtain duly certified copies of all relevant papers. If the captor cannot establish the fact before the Prize Court that he was really compelled to abandon the intention of bringing in the carrying vessel, he must be condemned (see article 51) to pay the value of the goods to their owners if the goods were contraband or if they were not.

And the same is valid in case (article 52) the seizure or destruction of the goods is held by the Prize Court to have been justifiable, but not the capture itself of the carrying vessel.

CHAPTER V

UNNEUTRAL SERVICE

I

THE DIFFERENT KINDS OF UNNEUTRAL SERVICE

Hall, ---- 248-253--Lawrence, ---- 260-262--Westlake, II. pp.

261-265--Phillimore, III. ---- 271-274--Halleck, II. pp.

289-301--Taylor, ---- 667-673--Walker, -- 72--Wharton, III. -- 374--Wheaton, ---- 502-504 and Dana's note No. 228--Moore, VII. ---- 1264-1265--Bluntschli, ---- 815-818--Heffter, -- 161A--Geffcken in Holtzendorff, IV. pp. 731-738--Ullmann, -- 192--Bonfils, Nos.

1584-1588--Despagnet, Nos. 716-716 _bis_--Rivier, II. pp.

388-391--Nys, III. pp. 675-681--Calvo, V. ---- 2796-2820--Fiore, III. Nos. 1602-1605, and Code, Nos. 1836-1840--Martens, II. -- 136--Kleen, I. ---- 103-106--Boeck, Nos. 660-669--Pillet, p.

330--Gessner, pp. 99-111--Perels, -- 47--Testa, p. 212--Dupuis, Nos. 231-238, and _Guerre_, Nos. 172-188--Bernsten, -- 9--Nippold, II. -- 35--Holland, _Prize Law_, ---- 88-105--U.S. Naval War Code, articles 16 and 20--Hautefeuille, II. pp. 173-188--Ortolan, II.

pp. 209-213--Mountague Bernard, _Neutrality of Great Britain during the American Civil War_ (1870), pp. 187-205--Marquardsen, _Der Trent-Fall_ (1862), pp. 58-71--Hirsch, _Kriegskonterbande und verbotene Transporte in Kriegszeiten_ (1897), pp.

42-55--Takahashi, _International Law during the Chino-j.a.panese War_ (1899), pp. 52-72--Vetzel, _De la contrebande par a.n.a.logie en droit maritime internationale_ (1901)--Atherley-Jones, _Commerce in War_ (1906), pp. 304-315--Hirschmann, _Das internationale Prisenrecht_ (1912), ---- 31-32--See also the monographs quoted above at the commencement of -- 391, and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, articles 45-47.

[Sidenote: Unneutral service in general.]

-- 407. Before the Declaration of London the term _unneutral service_ was used by several writers with reference to the carriage of certain persons and despatches for the enemy on the part of neutral vessels. The term has been introduced in order to distinguish the carriage of persons and despatches for the enemy from the carriage of contraband, as these were often confounded with each other. Since contraband consists of certain goods only and never of persons or despatches, a vessel carrying persons and despatches for the enemy is not thereby actually carrying contraband.[858] And there is another important difference between the two. Carriage of contraband need not necessarily, and in most cases actually does not, take place in the direct service of the enemy. On the other hand, carriage of persons and despatches for the enemy always takes place in the direct service of the enemy, and, consequently, represents a much more intensive a.s.sistance of, and a much more intimate connection with, the enemy than carriage of contraband. For these reasons a distinct treatment of carriage of contraband, on the one hand, and carriage of persons and despatches, on the other, was certainly considered desirable by many publicists. Those writers who did not adopt the term _unneutral service_, on account of its somewhat misleading character, preferred[859] the expression _a.n.a.logous of contraband_, because in practice maritime transport for the enemy was always treated in a.n.a.logy with, although not as, carriage of contraband.

[Footnote 858: This was recognised in the case of the _Yangtsze Insurance a.s.sociation_ v. _Indemnity Mutual Marine a.s.surance Company_, L.R. (1908), 1 K.B. 910 and 2 K.B. 504.]

[Footnote 859: It was also preferred in the first edition of this work.

But it was necessary to abandon further resistance on account of the fact that after the official adoption, in the translation of the Declaration of London, of the term _unneutral service_ it was useless to oppose it.]

The Declaration of London puts the whole matter upon a new and very much enlarged basis, for Chapter III. treats in articles 45 to 47, under the heading _De l'a.s.sistance hostile_--the official English translation of which is _unneutral service_--not only of the carriage of persons for the enemy on the part of a neutral vessel, but also of the transmission of intelligence in the interest of the enemy, the taking of a direct part in the hostilities, and a number of other acts on the part of a neutral vessel. Accordingly the Declaration of London makes a distinction between two kinds of unneutral service, meting out for the one a treatment a.n.a.logous in a general way to contraband, and for the other a treatment a.n.a.logous to that of enemy merchant vessels. Carriage of individual members of the armed forces of the enemy and a certain case of transmission of intelligence in the interest of the enemy const.i.tute the first kind, and four groups of acts creating enemy character for the vessel concerned const.i.tute the second kind.[860]

[Footnote 860: Although--see above, ---- 173 and 174--prevention of unneutral service to the enemy is a means of sea warfare, it chiefly concerns neutral commerce, and is, therefore, more conveniently treated with neutrality.]

[Sidenote: Carriage of Persons for the Enemy.]

-- 408. Either belligerent may punish neutral vessels for carrying, in the service of the enemy, certain persons.

Such persons included, according to the customary rules of International Law hitherto prevailing, not only members of the armed forces of the enemy, but also individuals who were not yet members of the armed forces but who would have become so as soon as they reached their place of destination, and, thirdly, non-military individuals in the service of the enemy either in such a prominent position that they could be made prisoners of war, or who were going abroad as agents for the purpose of fostering the cause of the enemy. Thus, for instance, if the head of the enemy State or one of his cabinet ministers fled the country to avoid captivity, the neutral vessel that carried him could have been punished, as could also the vessel carrying an agent of the enemy sent abroad to negotiate a loan and the like. However, the mere fact that enemy persons were on board a neutral vessel did not in itself prove that these persons were carried by the vessel for the enemy and in his service.

This was the case only when either the vessel knew of the character of the persons and nevertheless carried them, thereby acting in the service of the enemy, or when the vessel was directly hired by the enemy for the purpose of transport of the individuals concerned. Thus, for instance, if able-bodied men booked their pa.s.sages on a neutral vessel to an enemy port with the secret intention of enlisting in the forces of the enemy, the vessel could not be considered as carrying persons for the enemy; but she could be so considered if an agent of the enemy openly booked their pa.s.sages. Thus, further, if the fugitive head of the enemy State booked his pa.s.sage under a false name, and concealed his ident.i.ty from the vessel, she could not be considered as carrying a person for the enemy; but she could be so considered if she knew whom she was carrying, because she was then aware that she was acting in the service of the enemy. As regards a vessel directly hired by the enemy, there could be no doubt that she was acting in the service of the enemy.

Thus the American vessel _Orozembo_[861] was in 1807, during war between England and the Netherlands, captured and condemned, because, although chartered by a merchant in Lisbon ostensibly to sail in ballast to Macao and to take from there a cargo to America, she received by order of the charterer three Dutch officers and two Dutch civil servants, and sailed, not to Macao, but to Batavia. And the American vessel _Friendship_[862]

was likewise in 1807, during war between England and France, captured and condemned, because she was hired by the French Government to carry ninety shipwrecked officers and sailors home to a French port.

[Footnote 861: 6 C. Rob. 430.]

[Footnote 862: 6 C. Rob. 420.]

According to British practice hitherto prevailing, a neutral vessel was considered as carrying persons in the service of the enemy even if she were, through the application of force, constrained by the enemy to carry the persons, or if she were in _bona-fide_ ignorance of the status of her pa.s.sengers. Thus, in 1802, during war between Great Britain and France, the Swedish vessel _Carolina_[863] was condemned by Sir William Scott for having carried French troops from Egypt to Italy, although the master endeavoured to prove that the vessel was obliged by force to render the transport service. And the above-mentioned vessel _Orozembo_ was condemned[864] by Sir William Scott, although her master was ignorant of the service for the enemy on which he was engaged: "... In cases of _bona-fide_ ignorance there may be no actual delinquency; but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done or at least repeated," said Sir William Scott.[865]

[Footnote 863: 4 C. Rob. 256.]

[Footnote 864: See Phillimore, III. -- 274, and Holland, _Prize Law_, ---- 90-91. Hall, -- 249, p. 700, note 2, reprobates the British practice.

During the Russo-j.a.panese War only one case of condemnation of a neutral vessel for carrying persons for the enemy is recorded, that of the _Nigretia_, a vessel which endeavoured to carry into Vladivostock the escaped captain and lieutenant of the Russian destroyer _Ratzop.o.r.ni_; see Takahashi, pp. 639-641.]

[Footnote 865: It should be mentioned that, according to the customary law hitherto prevailing, the case of diplomatic agents sent by the enemy to neutral States was an exception to the rule that neutral vessels may be punished for carrying agents sent by the enemy. The importance of this exception became apparent in the case of the _Trent_ which occurred during the American War. On November 8, 1861, the Federal cruiser _San Jacinto_ stopped the British mail steamer _Trent_ on her voyage from Havana to the British port of Na.s.sau, in the Bahamas, forcibly took off Messrs. Mason and Slidell, together with their secretaries, political agents sent by the Confederate States to Great Britain and France, and then let the vessel continue her voyage. Great Britain demanded their immediate release, and the United States at once granted this, although the ground on which release was granted was not identical with the ground on which release was demanded. The Government of the United States maintained that the removal of these men from the vessel without bringing her before a Prize Court for trial was irregular, and, therefore, not justified, whereas release was demanded on the ground that a neutral vessel could not be prevented from carrying diplomatic agents sent by the enemy to neutrals. Now diplomatic agents in the proper sense of the term these gentlemen were not, because although they were sent by the Confederate States, the latter were not recognised as such, but only as a belligerent Power. Yet these gentlemen were political agents of a quasi-diplomatic character, and the standpoint of Great Britain was for this reason perhaps correct. The fact that the Governments of France, Austria, and Prussia protested through their diplomatic envoys in Washington shows at least that neutral vessels may carry unhindered diplomatic agents sent by the enemy to neutrals, however doubtful it may be whether the same is valid regarding agents with a quasi-diplomatic character. See _Parliamentary Papers_, 1862, North America, N. 5; Marquardsen, _Der Trent Fall_ (1862); Wharton, -- 374; Moore, VII. -- 1265; Phillimore, II. ---- 130-130A; Mountague Bernard, _Neutrality of Great Britain during the American Civil War_ (1870), pp.

187-205; Harris, _The Trent Affair_ (1896).]

According to the Declaration of London neutral merchantmen may, apart from the case of the carriage of persons who in the course of the voyage directly a.s.sist the operations of the enemy, only be considered to render unneutral service by carrying such enemy persons as are actually already members of the armed forces of the enemy. Article 45 makes it quite apparent, through using the words "_embodied_ in the armed forces," that reservists and the like who are on their way to the enemy country for the purpose of there joining the armed forces, do not belong to such enemy persons as a neutral vessel may not carry without exposing herself to punishment for rendering unneutral service to the enemy. And four different cases of carrying enemy persons must be distinguished according to the Declaration of London, namely: that of a neutral vessel exclusively engaged in the transport of enemy troops; that of a vessel transporting a military detachment of the enemy; that of a vessel transporting one or more persons who in the course of the voyage directly a.s.sist the operations of the enemy; that of a vessel transporting, on a voyage specially undertaken, individual members of the armed forces of the enemy.

(1) According to article 46, No. 4, a neutral vessel exclusively intended at the time for the transport of enemy troops acquires thereby enemy character. This case will be considered with others of the same kind below in -- 410.

(2) In case a vessel, although she is not exclusively therefor destined, and although she is not on a voyage specially undertaken for that purpose, transports, to the knowledge of either the owner or the charterer or the master, a military detachment of the enemy, she is, according to article 45, No. 2, considered to render unneutral service for which she may be punished. Accordingly, if to the knowledge of either the owner or the charterer or the master, a neutral vessel _in the ordinary course of her voyage_ carries a military detachment of the enemy, she is liable to be seized for unneutral service.

(3) In case a neutral vessel, to the knowledge of either the owner or the charterer or the master, carries one or more persons--subjects of one of the belligerents or of a neutral Power--who in the course of the voyage directly a.s.sist the operations of the enemy in any way, for instance by signalling or sending message by wireless telegraphy, she is, according to article 45, No. 2, likewise liable to seizure for rendering unneutral service.

(4) In case a neutral vessel carries individual members of the armed forces of the enemy, she is, according to article 45, No. 1, then only liable to seizure if she is on a voyage specially undertaken for such transport, that means, if she has been turned from her ordinary course and has touched at a port outside her ordinary course for the purpose of embarking, or is going to touch at a port outside her ordinary course for the purpose of disembarking, the enemy persons concerned. A liner, therefore, carrying individual members of the armed forces of the enemy in the ordinary course of her voyage may not be considered to be rendering unneutral service and may not be seized. However, according to article 47, a neutral vessel carrying members of the armed forces of the enemy while pursuing her ordinary course, may be stopped for the purpose of taking off such enemy persons and making them prisoners of war (see below, -- 413).

[Sidenote: Transmission of Intelligence to the Enemy.]

-- 409. Either belligerent may punish neutral merchantmen for transmission of intelligence to the enemy.

According to customary rules. .h.i.therto in force, either belligerent might punish neutral vessels for the carriage of political despatches from or to the enemy, and especially for such despatches as were in relation to the war. But to this rule there were two exceptions. Firstly, on the ground that neutrals have a right to demand that their intercourse with either belligerent be not suppressed: a neutral vessel might not, therefore, be punished for carrying despatches from the enemy to neutral Governments, and _vice versa_,[866] and, further, despatches from the enemy Government to its diplomatic agents and consuls abroad in neutral States, and _vice versa_.[867] Secondly, on account of article 1 of Convention XI., by which postal correspondence is inviolable, except in the case of violation of blockade, the correspondence destined for, or proceeding from, the blockaded port. However, the mere fact that a neutral vessel had political despatches to or from the enemy on board did not by itself prove that she was carrying them _for and in the service of the enemy_. Just as in the case of certain enemy persons on board, so in the case of despatches, the vessel was only considered to be carrying them in the service of the enemy if either she knew of their character and had nevertheless taken them on board, or if she was directly hired for the purpose of carrying them. Thus, the American vessel _Rapid_,[868] which was captured in 1810 during the war between Great Britain and the Netherlands, on her voyage from New York to Tonningen, for having on board a despatch for a Cabinet Minister of the Netherlands hidden under a cover addressed to a merchant at Tonningen, was released by the Prize Court. On the other hand, the _Atalanta_,[869]

which carried despatches in a tea chest hidden in the trunk of a supercargo, was condemned.[870]

[Footnote 866: The _Caroline_ (1808), 6 C. Rob. 461.]

[Footnote 867: The _Madison_ (1810), Edwards, 224.]

[Footnote 868: Edwards, 228.]

[Footnote 869: 6 C. Rob. 440.]

[Footnote 870: British practice seems unsettled on the question as to whether the vessel must know of the character of the despatch which she is carrying. In spite of the case of the _Rapid_, quoted above, Holland, _Prize Law_, -- 100, maintains that ignorance of the master of the vessel is no excuse, and Phillimore, III. -- 272, seems to be of the same opinion.]

According to the Declaration of London the carriage of despatches for the enemy may only be punished in case it falls under the category of transmitting intelligence to the enemy on the part of a neutral vessel.

Two kinds of such transmission of intelligence must be distinguished:--

Firstly, according to article 46, No. 4, a neutral vessel exclusively intended for the transmission of intelligence to the enemy acquires thereby enemy character; this will be considered with other cases of the same kind below in -- 410.

Secondly, according to article 45, No. 1, a neutral vessel may be seized for transmitting intelligence to the enemy if she is on a voyage specially undertaken for such transmission, that is to say, if she has been turned from her ordinary course and has touched or is going to touch at a port outside her ordinary course for the purpose of transmitting intelligence to the enemy. A liner, therefore, transmitting intelligence to the enemy in the ordinary course of her voyage may not be considered to be rendering unneutral service and may not be punished.

However, self-preservation would in a case of necessity justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy.[871]

[Footnote 871: See below, -- 413.]

The conception "transmission of intelligence" is not defined by the Declaration of London. It certainly means not only oral transmission of intelligence, but also the transmission of despatches containing intelligence. The transmission of any political intelligence of value to the enemy, whether or no the intelligence is in relation to the war, must be considered unneutral service, the case excepted in which intelligence is transmitted from the enemy to neutral Governments, and vice versa, and, further, from the enemy Government to its diplomatic agents and consuls abroad in neutral States. And it must be emphasised that, although a vessel may be seized and punished for unneutral service, according to article 1 of Convention XI. of the Second Hague Peace Conference the postal correspondence of neutrals or belligerents, whatever its character, found on board is inviolable.