International Law. A Treatise Volume Ii Part 62

-- 414. Right of visitation[886] is the right of belligerents to visit and eventually search neutral merchantmen for the purpose of ascertaining whether these vessels really belong to the merchant marine of neutrals, and, if this is found to be the case, whether they are attempting to break a blockade, or carry contraband, or render unneutral service to the enemy. The right of visit and search was already mentioned in the _Consolato del Mare_, and although it has often[887]

been contested, its _raison d'etre_ is so obvious that it has long been universally recognised in practice. It is indeed the only means by which belligerents are able to ascertain whether neutral merchantmen intend to bring a.s.sistance to the enemy and to render him unneutral services.[888]

[Footnote 886: It must be borne in mind that this right of visitation is not an independent right but is involved in the right of either belligerent--see above, -- 314--to punish neutral vessels breaking blockade, carrying contraband, and rendering unneutral service.]

[Footnote 887: See, for instance, Hubner, _De la saisie des batiments neutres_ (1759), I. p. 227.]

[Footnote 888: Attention should be drawn to the _Reglement international des prises maritimes_, adopted at Heidelberg in 1887 by the Inst.i.tute of International Law; ---- 1-29 regulate visit and search. See _Annuaire_, IX. (1888), p. 202.]

[Sidenote: Right of Visitation, by whom, when, and where exercised.]

-- 415. The right of visit and search may be exercised by all warships[889] of belligerents. But since it is a belligerent right, it may, of course, only be exercised after the outbreak and before the end of war. The right of visitation on the part of men-of-war of all nations in time of peace in a case of suspicion of piracy--see above, vol. I. -- 266 (2)--has nothing to do with the right of visit and search on the part of belligerents. And since an armistice does not bring war to an end, and since, on the other hand, the exercise of the right of visitation is not an act of warfare, this right may be exercised during the time of a partial as well as of a general armistice.[890] The region where the right may be exercised is the maritime territorial belt of either belligerent, and, further, the Open Sea, but not the maritime territorial belt of neutrals. Whether the part of the Open Sea in which a belligerent man-of-war meets with a neutral merchantman is near or far away from that part of the world where hostilities are actually taking place makes no difference so long as there is suspicion against the vessel. The question as to whether the men-of-war of a belligerent may exercise the right of visitation in the maritime territorial belt of an ally is one between the latter and the belligerent exclusively, provided such an ally is already a belligerent.

[Footnote 889: It should be mentioned that privateers could also exercise the right of visit and search. But since even such States as have not acceded to the Declaration of Paris in practice no longer issue Letters of Marque, such a case will no longer occur.]

[Footnote 890: But this is not universally recognised. Thus, Hautefeuille, III. p. 91, maintains that during a general armistice the right of visitation may not be exercised, and -- 5 of the _Reglement international des prises maritimes_ of the Inst.i.tute of International Law takes up the same att.i.tude. It ought, likewise, to be mentioned that in strict law the right of visit and search may be exercised even after the conclusion of peace before the treaty of peace is ratified. But the above-mentioned -- 5 of the _Reglement international des prises maritimes_ declares this right to cease "avec les preliminaires de la paix." See below, -- 436.]

[Sidenote: Only Private Vessels may be Visited.]

-- 416. During the nineteenth century it became universally recognised that neutral men-of-war are not objects of the right of visit and search of belligerents.[891] And the same is valid regarding public neutral vessels which sail in the service of armed forces, such as transport vessels, for instance. Doubt exists as to the position of public neutral vessels which do not sail in the service of armed forces, but sail for other purposes, as, for instance, mail-boats belonging to a neutral State. It is a.s.serted[892] that, if commanded by an officer of the Navy, they must be treated in the same way as men-of-war, but that it is desirable to ask the commanders to give their word of honour a.s.suring the absence of contraband and unneutral service.

[Footnote 891: In former times Great Britain tried to extend visitation to neutral men-of-war. See Manning, p. 455.]

[Footnote 892: See, for instance, Gessner, p. 297, and Perels, -- 52, IV.]

[Sidenote: Vessels under Convoy.]

-- 417. Sweden in 1653, during war between Great Britain and the Netherlands, claimed that the belligerents ought to waive their right of visitation over Swedish merchantmen if the latter sailed under the convoy of a Swedish man-of-war whose commander a.s.serted the absence of contraband on board the convoyed vessels. The Peace of Westminster in 1654 brought this war to an end, and in 1756 the Netherlands, then neutral, claimed the right of convoy. But it was not until the last quarter of the eighteenth century that the right of convoy was more and more insisted upon by Continental neutrals. During the American War of Independence in 1780, the Netherlands again claimed that right, and when they themselves in 1781 waged war against Great Britain, they ordered their men-of-war and privateers to respect the right of convoy. Between 1780 and 1800 treaties were concluded, in which Russia, Austria, Prussia, Denmark, Sweden, France, the United States of America, and other States recognised that right. But Great Britain always refused to recognise it, and in July 1800 the action of a British squadron in capturing a Danish man-of-war and her convoy of six merchantmen for resistance to visitation called the Second Armed Neutrality into existence. Yet Great Britain still resisted, and by article 4 of the "Maritime Convention" of St. Petersburg of June 17, 1801, she conceded to Russia only that vessels under convoy should not be visited by privateers. During the nineteenth century more and more treaties stipulating the right of convoy were concluded, but this right was not mentioned in the Declaration of Paris of 1856, and Great Britain refused to recognise it throughout the century. However, Great Britain abandoned her opposition at the Naval Conference of London of 1908-9, and the Declaration of London proposes to settle the matter by articles 61 and 62 in the following way:--

Neutral vessels under the convoy of a man-of-war flying the same flag are exempt from search and may not be visited if the commander of the convoy, at the request of the commander of the belligerent cruiser which desires to visit, gives, in writing, all information as to the character of the convoyed vessels and their cargoes which could be obtained by search. Should the commander of the belligerent man-of-war have reason to suspect that the confidence of the commander of the convoy has been abused, he may not himself resort to visit and search, but must communicate with the commander of the convoy. The latter must investigate the matter, and must record the result of his investigation in a report, a copy of which must be given to the commander of the belligerent cruiser. Should, in the opinion of the commander of the convoy, the facts stated in the report justify the capture of one or more of the convoyed vessels, he must withdraw protection from the offending vessels, and the belligerent cruiser may then capture them.

In case a difference of opinion arises between the commander of the convoy and the commander of the belligerent cruiser--for instance, with regard to the question as to whether certain goods are absolute or conditional contraband or as to whether the port of destination of a convoyed vessel is an ordinary commercial port or a port which serves as a base of supply for the armed forces of the enemy and the like--the commander of the belligerent cruiser has no power of overruling the decision of the commander of the convoy. He can only protest and report the case to his Government, which will settle the matter by means of diplomacy.

[Sidenote: No Universal Rules regarding Mode of Visitation.]

-- 418. There are no rules of International Law which lay down all the details of the formalities of the mode of visitation. A great many treaties regulate them as between the parties, and all maritime nations have given instructions to their men-of-war regarding these formalities.

Thereby uniform formalities are practised with regard to many points, but regarding others the practice of the several States differs. Article 17 of the Peace Treaty of the Pyrenees of 1659 has served as a model of many of the above-mentioned treaties regulating the formalities of visitation: "Les navires d'Espagne, pour eviter tout desordre, n'approcheront pas de plus pres les Francais que la portee du canon, et pourront envoyer leur pet.i.te barque ou chaloupe a bord des navires francais et faire entrer dedans deux ou trois hommes seulement, a qui seront montres les pa.s.seports par le maitre du navire francais, par lesquels il puisse apparoir, non seulement de la charge, mais aussi du lieu de sa demeure et residence, et du nom tant du maitre ou patron que du navire meme, afin que, par ces deux moyens, on puisse connaitre, s'il porte des marchandises de contrebande; et qu'il apparaisse suffisamment tant de la qualite du dit navire que de son maitre ou patron; auxquelles pa.s.seports on devra donner entiere foi et creance."

[Sidenote: Stopping of Vessels for the Purpose of Visitation.]

-- 419. A man-of-war which wishes to visit a neutral vessel must stop her or make her bring to. Although the chasing of vessels may take place under false colours, the right colours must be shown when vessels are stopped.[893] The order for stopping can be given[894] by hailing or by firing one or two blank cartridges from the so-called affirming gun, and, if necessary, by firing a shot across the bows of the vessel. If nevertheless the vessel does not bring to, the man-of-war is justified in using force to compel her to bring to. Once the vessel has been brought to, the man-of-war also brings to, keeping a reasonable distance. With regard to this distance, treaties very often stipulate either the range of a cannon shot or half such width or even a range beyond a cannon shot; but all this is totally impracticable.[895] The distance must vary according to the requirements of the case, and according to wind and weather.

[Footnote 893: See above, -- 211.]

[Footnote 894: See above, vol. I. -- 268.]

[Footnote 895: See Ortolan, II. p. 220, and Perels, -- 53, pp. 284, 285.]

[Sidenote: Visit.]

-- 420. The vessel, having been stopped or brought to, is visited[896] by one or two officers sent in a boat from the man-of-war. These officers examine the papers of the vessel to ascertain her nationality, the character of her cargo and pa.s.sengers, and, lastly, the ports from and to which she is sailing. Instead of visiting the merchantman and inspecting her papers on board, the practice is followed, by the men-of-war of some States, of summoning the master of the merchantman with his papers on board the former and examining the papers there.

[Footnote 896: See above, vol. I. -- 268, and Holland, _Prize Law_, ---- 195-216.]

If everything is found in order and there is no suspicion of fraud, the vessel is allowed to continue her course, a memorandum of the visit having been entered in her log-book. On the other hand, if the inspection of the papers shows that the vessel is carrying contraband or rendering unneutral service, or that she is for another reason liable to capture, she is at once seized. But it may be that, although ostensibly everything is in order, there is nevertheless grave suspicion of fraud against the vessel. In such case she may be searched.

[Sidenote: Search.]

-- 421. Search is effected[897] by one or two officers, and eventually a few men, in presence of the master of the vessel. Care must be taken not to damage the vessel or the cargo, and no force whatever must be applied. No lock must be forcibly broken open by the search party, but the master is to be required to unlock it. If he fails to comply with the demand he is not to be forced thereto, since the master's refusal to a.s.sist the search in general, or that of a locked part of the vessel or of a locked box in particular, is at once sufficient cause for seizing the vessel. Search being completed, everything removed has to be replaced with care. If the search has satisfied the searching officers and dispelled all suspicion, a memorandum is entered in the log-book of the vessel, and she is allowed to continue her voyage. On the other hand, if search brought contraband or another cause for capture to light, the vessel is seized. But since search can never take place so thoroughly on the sea as in a harbour, it may be that, although search has disclosed no proof to bear out the suspicion, grave suspicion still remains. In such case she may be seized and brought into a port for the purpose of being searched there as thoroughly as possible. But the commander of a man-of-war seizing a vessel in such case must bear in mind that full indemnities must be paid to the vessel for loss of time and other losses sustained if finally she is found innocent. Therefore, after a search at sea has brought nothing to light against the vessel, seizure should take place only in case of grave suspicion.

[Footnote 897: See above, vol. I. -- 269, and Holland, _Prize Law_, ---- 217-230.]

[Sidenote: Consequences of Resistance to Visitation.]

-- 422. If a neutral merchantman resists visit or search, she is at once captured, and may be confiscated. The question as to whether the vessel only, or also her cargo, could be confiscated for resistance has. .h.i.therto been controversial. According to British[898] and American theory and practice, the cargo as well as the vessel was liable to confiscation. But Continental[899] writers emphatically argued against this and maintained that the vessel only was liable to confiscation.

[Footnote 898: The _Maria_ (1799), 1 C. Rob. 340.]

[Footnote 899: See Gessner, pp. 318-321.]

According to article 63 of the Declaration of London, resistance to the legitimate exercise of the right of visit, search, and capture involves in all cases the confiscation of the vessel, which by her forcible resistance has acquired enemy character (see above, -- 89). For this reason such goods on board as belong to the master or owner of the vessel are treated as enemy goods and may be confiscated. Enemy goods on board may now likewise be confiscated, although when they were first shipped the vessel bore neutral character. Further, all goods on board are now presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Lastly, no appeal may be brought from the National Prize Courts to the International Prize Court by the owner of the ship except concerning the one question only, namely, as to whether there was justification for capturing her on the grounds of forcible resistance.

It must be emphasised that visit and search do not take place after a vessel has been captured for resistance, for the mere fact of resisting has imposed enemy character upon her, and the question is now irrelevant whether visit and search would show her to be guilty or innocent.

[Sidenote: What const.i.tutes Resistance.]

-- 423. According to the practice hitherto prevailing,[900] and also according to the Declaration of London, a mere attempt on the part of a neutral merchantman to escape visitation does not in itself const.i.tute resistance. Such vessel may be chased and compelled by force to bring to, and she cannot complain if, in the endeavour forcibly to compel her to bring to, she is damaged or accidentally sunk. If, after the vessel has been compelled to bring to, visit and search show her to be innocent, she must be allowed to proceed on her course.

[Footnote 900: The _Maria_ (1799), 1 C. Rob. 340.]

Resistance to be penal must be _forcible_ resistance. It const.i.tutes resistance, therefore, if a vessel applies force in resisting any legitimate action by the belligerent cruiser which requires her to stop and to be visited and searched. The term _forcible resistance_ is not defined in detail by article 63 of the Declaration of London. It is, consequently, not certain whether the actual application of force only, or also the refusal, on the part of the master, to show the ship papers or to open locked parts of the vessel or locked boxes, and similar acts, const.i.tutes forcible resistance. The International Prize Court, if established, would have to develop a practice which would decide these points.

[Sidenote: Sailing under Enemy Convoy equivalent to Resistance.]

-- 424. Wheaton excepted, all writers would seem to agree that the fact of neutral merchantmen sailing under a convoy of enemy men-of-war is equivalent to forcible resistance on their part, whether they themselves intend to resist by force or not. But the Government of the United States of America in 1810 contested this principle. In that year, during war between Great Britain and Denmark, many American vessels sailing from Russia used to seek protection under the convoy of British men-of-war, whereupon Denmark declared all such American vessels to be good and lawful prizes. Several were captured without making any resistance whatever, and were condemned by Danish Prize Courts. The United States protested, and claimed indemnities from Denmark, and in 1830 a treaty between the parties was signed at Copenhagen,[901]

according to which Denmark had to pay 650,000 dollars as indemnity. But in article 5 of this treaty the parties "expressly declare that the present convention is only applicable to the cases therein mentioned, and, having no other object, may never hereafter be invoked by one party or the other as a precedent or a rule for the future."[902]

[Footnote 901: Martens, _N.R._ VIII. p. 350.]

[Footnote 902: See Wheaton, ---- 530-537, and Taylor, -- 693, p. 790.

Wheaton was the negotiator of this treaty on the part of the United States.--With the case of neutral merchantmen sailing under enemy convoy, the other case--see above, -- 185--in which neutral goods are placed on board an armed enemy vessel is frequently confused. In the case of the _f.a.n.n.y_ (1814), 1 Dodson, 443, Sir William Scott condemned neutral Portuguese property on the ground that placing neutral property on board an armed vessel was equal to resistance against visitation. But the Supreme Court of the United States of America, in the of the _Nereide_ (1815), 9 Cranch, 388, held the contrary view. The Court was composed of four judges, of whom Story was one, and the latter dissented from the majority and considered the British practice correct. See Phillimore, III. -- 341, and Wheaton, -- 529.]

Article 63 of the Declaration of London does not--as was pointed out above in -- 423--define the term forcible resistance, but it is to be expected that the practice of the International Prize Court would consider the sailing under enemy convoy equivalent to forcible resistance.

[Sidenote: Resistance by Neutral Convoy.]

-- 425. Since Great Britain did not, before agreeing to the Declaration of London, recognise the right of convoy and had always insisted upon the right of visitation to be exercised over neutral merchantmen sailing under the convoy of neutral men-of-war, the question has arisen as to whether such merchantmen are considered resisting visitation in case the convoying men-of-war only, and not the convoyed vessels themselves, offer resistance. British practice has answered the question in the affirmative. The rule was laid down in 1799[903] and in 1804[904] by Sir William Scott in the cases of Swedish vessels captured while sailing under the convoy of a Swedish man-of-war.

[Footnote 903: The _Maria_, 1 C. Rob. 340.]