International Law. A Treatise Volume Ii Part 63

[Footnote 904: The _Elsebe_, 5 C Rob. 173.]

Since Great Britain--see above, -- 417--has abandoned her opposition to the right of convoy and has agreed to articles 61 and 62 of the Declaration of London which lay down rules concerning the matter, the resistance by a neutral convoy to visitation may not, under ordinary circ.u.mstances, be considered to be resistance on the part of the convoyed neutral merchantman. If, however, the commander of a convoy, after having refused to give the written information mentioned in article 61 or to allow the investigation mentioned in article 62, forcibly resists visitation of the convoyed merchantmen by a belligerent cruiser, the question as to whether resistance by a convoy is equivalent to resistance by a convoyed vessel, may even under the Declaration of London arise.

[Sidenote: Deficiency of Papers.]

-- 426. Since the purpose of visit is to ascertain the nationality of a vessel, the character of her cargo and pa.s.sengers, and the ports from and to which she is sailing, it is obvious that this purpose cannot be realised in case the visited vessel is deficient in her papers. As stated above in Vol. I. -- 262, every merchantman ought to carry the following papers: (1) A certificate of registry or a sea-letter (pa.s.sport); (2) the muster-roll; (3) the log-book; (4) the manifest of cargo; (5) bills of lading, and (6) if chartered, the charter-party.

Now, if a vessel is visited and cannot produce one or more of the papers mentioned, she is suspect. Search is, of course, admissible for the purpose of verifying the suspicion, but it may be that, although search has not produced any proof of guilt, the suspicion is not dispelled. In such case she may be seized and brought to a port for thorough examination. But, with the exception of the case that she cannot produce either certificate of registry or a sea-letter (pa.s.sport), she ought not to be confiscated for deficiency in papers only. Yet, if the cargo is also suspect, or if there are other circ.u.mstances which increase the suspicion, confiscation would be, I believe, in the discretion of the Prize Court.

The Declaration of London does not mention the point, and the International Prize Court would, therefore, have to evolve a system of rules to be applied in cases concerned.

[Sidenote: Spoliation, Defacement, and Concealment of Papers.]

-- 427. Mere deficiency of papers does not arouse the same suspicion which a vessel incurs if she destroys[905] or throws overboard any of her papers, defaces them or conceals them, and in especial in case the spoliation of papers takes place at the time when the visiting vessel comes in sight. Whatever her cargo may be, a vessel may at once be seized without further search so soon as it becomes apparent that spoliation, defacement, or concealment of papers has taken place. The practice of the several States has. .h.i.therto differed with regard to other consequences of spoliation, and the like, of papers, but confiscation is certainly admissible in case other circ.u.mstances increase the suspicion.[906]

[Footnote 905: The _Hunter_ (1815), 1 Dodson, 480.]

[Footnote 906: See the case of the _Apollo_ in Calvo, V. -- 2989.]

The Declaration of London does not mention the case of spoliation of papers, and it would therefore be the task of the International Prize Court to evolve a uniform practice concerning the subject.

[Sidenote: Double and False Papers.]

-- 428. The highest suspicion is aroused through the fact that a visited vessel carries double papers, or false[907] papers, and such vessel may certainly be seized. But the practice of the several States has. .h.i.therto differed with regard to the question whether confiscation is admissible for the mere fact of carrying double or false papers. Whereas the practice of some States, as Russia and Spain, answered the question in the affirmative, British[908] and American[909] practice took a more lenient view, and condemned such vessels only on a clear inference that the false or double papers were carried for the purpose of deceiving the belligerent by whom the capture was made, but not in other cases.[910]

[Footnote 907: The _Sarah_ (1801), 3 C. Rob. 330.]

[Footnote 908: The _Eliza and Katy_ (1805), 6 C. Rob. 192.]

[Footnote 909: The _St. Nicholas_ (1816), 1 Wheaton, 417.]

[Footnote 910: See Halleck, II. p. 271; Hall, -- 276; Taylor, -- 690.]

Since the Declaration of London does not mention the case of double or false papers, it would likewise be the task of the International Prize Court to evolve a uniform practice.

II

CAPTURE

Hall, -- 277--Lawrence, -- 191--Phillimore, III. ---- 361-364--Twiss, II. ---- 166-184--Halleck, II. pp. 362-391--Taylor, -- 691--Moore, VII. ---- 1206-1214--Bluntschli, -- 860--Heffter, ---- 171, 191, 192--Geffcken in Holtzendorff, IV. pp. 777-780--Ullmann, -- 196--Rivier, II. pp. 426-428--Nys, III. pp. 697-709--Calvo, V. ---- 3004-3034--Fiore, III. Nos. 1644-1657, and Code, Nos.

1878-1889--Martens, II. ---- 126-137--Kleen, II. ---- 203-218--Gessner, pp. 333-356--Boeck, Nos. 770-777--Dupuis, Nos.

253-281, and _Guerre_, Nos. 205-217--Bernsten, -- 11--Nippold, II.

-- 35--Perels, -- 55--Testa, pp. 243-244--Hautefeuille, III. pp.

214-299--Holland, _Prize Law_, ---- 231-314--U.S. Naval War Code, articles 46-50--Atherley-Jones, _Commerce in War_ (1906), pp.

361-646--Hirschmann, _Das internationale Prisenrecht_ (1912), ---- 35-37--See also the monographs quoted above at the commencement of -- 391, Bulmerincq's articles on _Le droit des prises maritimes_ in _R.I._ X-XIII. (1878-1881), and the General Report presented to the Naval Conference of London on behalf of its Drafting Committee, articles 48-54.

[Sidenote: Grounds and Mode of Capture.]

-- 429. From the statements given above in ---- 368-428 regarding blockade, contraband, unneutral service, and visitation, it is obvious that capture may take place either because the vessel, or the cargo, or both, are liable to confiscation, or because grave suspicion demands a further inquiry which can be carried out in a port only. Both cases are alike so far as all details of capture are concerned, and in the latter case Prize Courts may p.r.o.nounce capture to be justified, although no ground for confiscation of either vessel or cargo, or both, has been detected.

The mode of capture is the same as described above in -- 184 regarding capture of enemy vessels.[911]

[Footnote 911: The _Reglement international des prises maritimes_, adopted by the Inst.i.tute of International Law at its meeting at Heidelberg in 1887, regulates capture in ---- 45-62; see _Annuaire_, IX.

(1888), p. 204.]

[Sidenote: Effect of Capture of Neutral Vessels, and their Conduct to Port.]

-- 430. The effect of capture of neutral vessels is in every way different from the effect of capture of enemy vessels,[912] since the purpose of capture differs in these two cases. Capture of enemy vessels is made for the purpose of appropriating them in the exercise of the right of belligerents to appropriate all enemy property found on the Open Sea or in the maritime territorial belt of either belligerent. On the other hand, neutral merchantmen are captured for the purpose of confiscation of vessel or cargo, or both, as punishment for certain special acts, the punishment to be p.r.o.nounced by a Prize Court after a thorough investigation into all the circ.u.mstances of the special case.

Therefore, although the effect of capture of neutral vessels is that the vessels, the individuals, and the goods thereon are placed under the captor's authority, her officers and crew never become prisoners of war.

They are indeed to be detained as witnesses for the trial of the vessel and cargo, but nothing stands in the way of releasing such of them as are not wanted for that purpose. As regards pa.s.sengers, if any, they have to be released as soon as possible, with the exception of those enemy persons who may be made prisoners of war.

[Footnote 912: See above, -- 185.]

Regarding the conduct of captured neutral vessels to a port of a Prize Court, the same is valid as regards conduct of captured enemy vessels[913] to such port.

[Footnote 913: See above, -- 193.]

[Sidenote: Destruction of Neutral Prizes.]

-- 431. That as a rule captured neutral vessels may not be sunk, burned, or otherwise destroyed has always been universally recognised just as that captured enemy merchantmen may not as a rule be destroyed. But up to the time of the agreement on the Declaration of London it was a moot question whether the destruction of captured neutral vessels was likewise exceptionally allowed instead of bringing them before a Prize Court. British[914] practice did not, as regards the neutral owner of the vessel, hold the captor justified in destroying a vessel, however exceptional the case may have been, and however meritorious the destruction of the vessel may have been from the point of view of the Government of the captor. For this reason, should a captor, for any motive whatever, have destroyed a neutral prize, full indemnities had to be paid to the owner, although, if brought into a port of a Prize Court, condemnation of vessel and cargo would have been p.r.o.nounced beyond doubt. The rule was, that a neutral prize must be abandoned in case it could not, for any reason whatever, be brought to a port of a Prize Court. But the practice of other States did not recognise this British rule. The question became of great importance in 1905, during the Russo-j.a.panese War, when Russian cruisers sank the British vessels _Knight Commander_, _Oldhamia_, _Icona_, _St. Kilda_, and _Hipsang_, the German vessels _Thea_, and _Tetardos_, and the Danish vessel _Princesse Marie_. Russia paid damages to the owners of the vessels _Icona_, _St.

Kilda_, _Thea_, _Tetardos_, and _Princesse Marie_, because her Prize Courts declared that the capture of these vessels was not justified, but she refused to pay damages to the owners of the other vessels destroyed, because her Prize Courts considered them to have been justly captured.

[Footnote 914: The _Actaeon_ (1815), 2 Dodson, 48; the _Felicity_ (1819), 2 Dodson, 381; the _Leucade_ (1855), Spinks, 217. See Phillimore, III. -- 333; Twiss, II. -- 166; Hall, -- 77; Holland, _Letters to the "Times" upon War and Neutrality_ (1909), pp. 140-150.]

The Declaration of London proposes to settle the matter by a compromise.

Recognising that neutral prizes may not as a rule be destroyed, and admitting only one exception to the rule, it empowers the captor under certain circ.u.mstances and conditions to demand the handing over, or to proceed himself to the destruction, of contraband carried by a neutral prize which he is compelled to abandon.

The very first rule of Chapter IV. of the Declaration of London, headed "Destruction of Neutral Prizes," is that of article 48, according to which, as a matter of principle, captured neutral vessels may not be destroyed, but must be taken into a port of a Prize Court. However, article 49 permits, as an exception to the rule, the destruction of such a captured neutral vessel as would herself be liable to condemnation, if the taking of the vessel into a 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 at the time of capture engaged.

There is, therefore, no doubt that a neutral prize may no longer be destroyed because the captor cannot spare a prize crew or because a port of a Prize Court is too far distant, or the like. The only justification for destruction of a neutral prize is danger to the captor or his operations at the time of capture. As regards the degree of danger required, it cannot be denied that the wording of article 49 does not provide any clue for a restrictive interpretation. But considering that article 51 speaks of an "exceptional necessity," it is hoped and to be expected that the International Prize Court would give such an interpretation to article 49 as would permit a resort to the sinking of neutral prizes in cases of absolute necessity only. Be that as it may, according to article 49 only such neutral prizes may be sunk as would be liable to confiscation if brought before a Prize Court. Sinking of captured neutral vessels--apart from neutral vessels which have acquired enemy character and may for this reason be sunk under the same conditions as enemy vessels--is, therefore, chiefly admitted in three[915] cases, namely: (1) When--see article 40 of the Declaration of London--the vessel carries contraband the value of which forms more than half the value of the cargo; (2) when a vessel has been captured for rendering those kinds of unneutral service which are enumerated by article 45 of the Declaration of London; (3) when--see article 21 of the Declaration of London--a vessel has been captured for breach of blockade. In no case, however, in which she is not liable to confiscation, may a neutral vessel under any circ.u.mstances and conditions be destroyed; she must always be abandoned if the capturing cruiser cannot take her into a port of a Prize Court.

[Footnote 915: Only such cases of possible confiscation of a neutral vessel are mentioned in the text as are in accordance with the Declaration of London. The practice of some States has. .h.i.therto admitted confiscation in other cases also, for instance, in case of deficiency, spoliation, or defacement of ship papers, and in case of double and false papers; see above, ---- 426-428. It will be the task of the International Prize Court to evolve a uniform practice with regard to such cases. Likewise the text does not enumerate the cases in which the sinking of a neutral vessel is permissible because she previously acquired enemy character; concerning this, see above, -- 89.]

However this may be, when the captor feels compelled to resort to the destruction of a neutral prize, he must place in safety all persons found on the captured vessel, and he must take on board all the captured ship's papers which are relevant for the purpose of deciding the validity of the capture (article 50). And (article 51) if the captor fails to establish the fact before the Prize Court that he destroyed the prize in the face of an exceptional necessity, the owners of the vessel and cargo must receive full compensation without any examination of, and any regard to, the question as to whether or no the capture itself was justifiable. Compensation must likewise be paid in case the capture is held by the Prize Court to be invalid, although the act of destruction has been held to be justifiable (article 52). And in any case, the owners of neutral goods not liable to condemnation which have been destroyed with the vessel, may always and under all circ.u.mstances and conditions claim damages (article 53).

Thus many safeguards have been established against arbitrariness in resorting to the destruction of neutral prizes. On the other hand, it would seem to be going too far to insist on the captor letting the prize go with her contraband on board, if he be compelled to abandon the prize. For this reason article 54 empowers the captor of a neutral vessel herself not liable to confiscation, to demand the handing over, or to proceed himself to the destruction, of any goods liable to confiscation found on board, if the taking of the vessel into a port of a Prize Court would involve danger to the captor or to the success of the operations in which he is at the time of capture engaged. Details concerning such destruction have been given above in -- 406_a_ (2).

[Sidenote: Ransom and Recapture of Neutral Prizes.]

-- 432. Regarding ransom of captured neutral vessels, the same is valid as regards ransom of captured enemy vessels.[916]

[Footnote 916: See above, -- 195.]

As regards recapture of neutral prizes,[917] the rule ought to be that _ipso facto_ by recapture the vessel becomes free without payment of any salvage. Although captured, she was still the property of her neutral owners, and if condemnation had taken place at all, it would have been a punishment, and the recapturing belligerent has no interest whatever in the punishment of a neutral vessel by the enemy.

[Footnote 917: See Hautefeuille, III. pp. 366-406; Gessner, pp. 344-356; Kleen, II. -- 217; Geffcken in Holtzendorff, IV. pp. 778-780; Calvo, V.

---- 3210-3216.]