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-Japanese War (1899), pp. 52-72—Vetzel, De la contrebande par analogie 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.
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 assistance 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 analogous of contraband, because in practice maritime transport for the enemy was always treated in analogy with, although not as, carriage of contraband.
[858] This was recognised in the case of the Yangtsze Insurance Association v. Indemnity Mutual Marine Assurance Company, L.R. (1908), 1 K.B. 910 and 2 K.B. 504.
[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'assistance 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 analogous in a general way to contraband, and for the other a treatment analogous 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 constitute the first kind, and four groups of acts creating enemy character for the vessel concerned constitute the second kind.[860]
[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.
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 passages 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 passages. Thus, further, if the fugitive head of the enemy State booked his passage under a false name, and concealed his identity 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.
[861] 6 C. Rob. 430.
[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 passengers. 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]
[863] 4 C. Rob. 256.
[864] See Phillimore, III. § 274, and Holland, Prize Law, §§ 90-91. Hall, § 249, p. 700, note 2, reprobates the British practice. During the Russo-Japanese 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 Ratzoporni; see Takahashi, pp. 639-641.
[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 Nassau, 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 assist 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 assist 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 assist 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]).
Transmission of Intelligence to the Enemy.
§ 409. Either belligerent may punish neutral merchantmen for transmission of intelligence to the enemy.
According to customary rules hitherto 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]
[866] The Caroline (1808), 6 C. Rob. 461.
[867] The Madison (1810), Edwards, 224.
[868] Edwards, 228.
[869] 6 C. Rob. 440.
[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]
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.
Unneutral Service creating Enemy Character.
§ 410. In contradistinction to cases of unneutral service which are similar to carriage of contraband, the Declaration of London enumerates in article 46 four cases of such kinds of unneutral service as vest neutral vessels with enemy character.[872]
(1) There is, firstly, the case of a neutral merchantman taking a direct part in the hostilities. This may occur in several ways, but such vessel in every case loses her neutral and acquires enemy character, just as a subject of a neutral Power who enlists in the ranks of the enemy armed forces. But a distinction must be made between taking a direct part in the hostilities, for instance rendering assistance to the enemy fleet during battle, on the one hand, and, on the other, acts of a piratical character. If a neutral merchantman—see above, §§ [85], 181, and [254]—without Letters of Marque during war and from hatred of one of the belligerents, were to attack and sink merchantmen of such belligerent, she would have to be considered, and could therefore be treated as, a pirate.
(2) There is, secondly, the case of a neutral vessel which sails under the orders or the control of an agent placed on board by the enemy Government. The presence of such agent, and the fact that the vessel sails under his orders or control shows clearly that she is really for all practical purposes part and parcel of the enemy forces.
(3) There is, thirdly, the case of a neutral vessel in the exclusive employment of the enemy. This may occur in two different ways: either the vessel may be rendering a specific service in the exclusive employment of the enemy, as, for instance, did those German merchantmen during the Russo-Japanese War which acted as colliers for the Russian fleet en route for the Far East; or the vessel may be chartered by the enemy so that she is entirely at his disposal for any purpose he may choose, whether such purpose is or is not connected with the war.[873]
(4) There is, fourthly and lastly, the case of a neutral merchantman exclusively intended at the time either for the transport of enemy troops or for the transmission of intelligence for the enemy. This case is different from the case—provided for by article 45, No. 1—of a vessel on a voyage specially undertaken with a view to the carriage of individual members of the armed forces of the enemy. Whereas the latter is a case of unneutral service rendered by a vessel which turns from her course for the purpose of rendering specific service, the former is a case in which the vessel is exclusively and for the time being permanently intended and devoted to the rendering of unneutral service. For the time being she is, therefore, actually part and parcel of the enemy marine. For this reason she is considered to be rendering unneutral service, and to have lost her neutral character, even if, at the moment an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence. The fact is decisive that she is for the time being exclusively intended for such unneutral service, whether or no she is at every moment really engaged in rendering such service. And it makes no difference, whether the vessel is engaged by the enemy and paid for the transport of troops or the transmission of intelligence, or whether she renders the service[874] gratuitously.
[872] See above, § [89] (1), p. 113.
[873] Two cases of interest occurred in 1905, during the Russo-Japanese War. The Industrie, a German vessel, and the Quang-nam, a French vessel, were captured and condemned by the Japanese for being in the employ of Russia as reconnoitring vessels, although the former pretended to collect news in the service of the Chefoo Daily News, and the latter pretended to be a cargo vessel plying between neutral ports. See Takahashi, pp. 732 and 735.
[874] As regards the meaning of the term transmission of intelligence, see above, § [409].
II CONSEQUENCES OF UNNEUTRAL SERVICE
See the literature quoted above at the commencement of § [407].
Capture for Unneutral Service.
§ 411. According to customary rules hitherto prevailing, as well as according to the Declaration of London, a neutral vessel may be captured if visit or search establish the fact, or grave suspicion of the fact, that she is rendering unneutral service to the enemy. And such capture may take place anywhere throughout the range of the Open Sea and the territorial maritime belt of either belligerent.
Stress must be laid on the fact that mail steamers are on principle not exempt from capture for unneutral service. Although, according to article 1 of Convention XI., the postal correspondence of belligerents as well as of neutrals, whatever its official or private character, found on board a vessel on the sea is inviolable,[875] and a vessel may never, therefore, be considered to be rendering unneutral service by carrying amongst her postal correspondence despatches containing intelligence for the enemy, a mail steamer is nevertheless—see article 2 of Convention XI.—not exempt from the laws and customs of naval war respecting neutral merchantmen. A mail boat is, therefore, quite as much as any other merchantman, exposed to capture for rendering unneutral service.
[875] See above, §§ [191] and [319].
However this may be, capture is allowed only so long as the vessel is in delicto, that is during the time in which she is rendering the unneutral service concerned or immediately afterwards while she is being chased for having rendered unneutral service. A neutral vessel may not, therefore, be captured after the completion of a voyage specially undertaken for the purpose of transporting members of the armed forces of the enemy, or of transmitting intelligence for the enemy, or after having disembarked the military detachment of the enemy and the persons directly assisting the operations of the enemy in the course of the voyage whom she was transporting. And it must be specially emphasised that even such neutral vessel as had acquired—see article 46 of the Declaration of London—enemy character by rendering unneutral service, ceases to be in delicto after her unneutral service has come to an end. Thus, for instance, a neutral vessel which took a direct part in hostilities[876] may not afterwards be captured, nor may a vessel which has disembarked the agent of the enemy Government under whose orders or control she was navigating.
[876] Provided she did not—see above, § [410] (1)—commit acts of a piratical character; for such acts she may always be punished.
Penalty for Unneutral Service.
§ 412. According to the practice hitherto prevailing, a neutral vessel captured for carriage of persons or despatches in the service of the enemy could be confiscated. Moreover, according to British[877] practice, such part of the cargo as belonged to the owner of the vessel was likewise confiscated.[878] And if the vessel was not found guilty of carrying persons or despatches in the service of the enemy, and was not therefore condemned, the Government of the captor could nevertheless detain the persons as prisoners of war and confiscate the despatches, provided the persons and despatches concerned were in any way of such a character as to make a vessel, which was cognisant of this character, liable to punishment for transporting them for the enemy.
[877] The Friendship (1807), 6 C. Rob. 420; the Atalanta (1808), 6 C. Rob. 440. See Holland, Prize Law, §§ 95 and 105.
[878] See, however, the Hope (1808), 6 C. Rob. 463, note.
The Declaration of London recognises these three rules. Articles 45 and 46 declare any vessel rendering any kind of unneutral service to the enemy liable to confiscation, and likewise declare such part of the cargo as belongs to the owner of the confiscated vessel liable to confiscation. And article 47 enacts that, although a neutral vessel may not be condemned because there are no grounds for her capture, the capturing State may nevertheless detain as prisoners of war any members of the armed forces of the enemy who were found on board the vessel. The case of despatches found on board is not mentioned by article 47, but there ought to be no doubt—see below, § [413]—that the old customary rule that, although the vessel may not be condemned because there is no ground for capture, any despatches for the enemy found on board may, in analogy with article 47, be confiscated, provided such despatches are not part of the postal correspondence carried on board.
It must be emphasised that the mere fact that a neutral vessel is rendering unneutral service, is not sufficient for her condemnation; for in addition mens rea is required. Now as regards the four kinds of unneutral service which create enemy character, mens rea is obviously always in existence, and therefore always presumed to be present. For this reason article 46, in contradistinction to article 45, does not mention anything concerning the knowledge by the vessel of the outbreak of hostilities. But as regards the other cases of unneutral service, article 45 provides that the vessel may not be confiscated if the vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the passengers concerned. On the other hand, a vessel is deemed, according to article 45, to be aware of the existence of a state of war if she left an enemy port subsequent to the outbreak of hostilities, or a neutral port subsequent to the notification of the outbreak of hostilities to the Power to which such port belongs, provided that such notification was made in sufficient time.
Although the Declaration of London metes out the same punishment for the several kinds of unneutral service which it enumerates, it nevertheless makes a distinction, apart from the penalty, with regard to the treatment of the vessels captured for rendering unneutral service.
Article 45 provides for a neutral vessel captured for having rendered either of the two kinds of unneutral service mentioned in this article a treatment which is, in a general way, the same as that for a neutral vessel captured for the carriage of contraband. This means that the vessel does not lose her neutral character, and must under all circumstances and conditions be taken before a Prize Court, unless—see article 49 of the Declaration of London—the taking of her into a port of the capturing State would involve danger to the safety of the capturing vessel or to the success of the military operations in which she is engaged at the time. And an appeal from the national Prize Courts may be brought to the International Prize Court.
Article 46, on the other hand, provides, apart from the penalty, a treatment for a vessel captured for having rendered any of the four kinds of unneutral service enumerated in this article which, in a general way, is the same as that for a captured enemy merchantman. This means that such vessel acquires enemy character. Accordingly (see above, § [89]) all enemy goods on the vessel may be seized, all goods on board will be presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Further, the rules of articles 48 and 49 of the Declaration of London concerning the destruction of neutral vessels do not apply. Again, 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, whether the act of which she is accused has the character of unneutral service.[879]
[879] The question as to whether, if the vessel has been destroyed by the captor, the innocent owners of the neutral goods on board may claim compensation, has to be decided in the same way as the question as to whether the owners of neutral goods on a destroyed enemy merchantman have a claim to compensation; see above, § [194].
Seizure of Enemy Persons and Despatches without Seizure of Vessel.
§ 413. According to the British[880] and American practice, as well as that of some other States, which has hitherto prevailed, whenever a neutral vessel was stopped for carrying persons or despatches for the enemy, these could not be seized unless the vessel were seized at the same time. The release, in 1861, during the American Civil War, of Messrs. Mason[881] and Slidell, who had been forcibly taken off the Trent, while the ship herself was allowed to continue her voyage, was based, by the United States, on the fact that the seizure of these men without the seizure of the vessel was illegal. Since, according to the Declaration of London, a neutral vessel rendering unneutral service of any kind is liable to be confiscated, it is evident that in such a case the enemy persons and despatches concerned may not be taken off the vessel unless the vessel herself is seized and brought into a port of a Prize Court. However, article 47 provides that any member of the armed forces of the enemy found on board a neutral merchant vessel may be taken off and made a prisoner of war, although there may be no ground for the capture of the vessel. Therefore, if a vessel carries individual members of the armed forces of the enemy in the ordinary course of her voyage,[882] or if she transports a military detachment of the enemy and the like without being aware of the outbreak of hostilities, the members of the armed forces of the enemy on board may be seized, although the vessel herself may not be seized, as she is not rendering unneutral service.
[880] See Holland, Prize Law, § 104.
[881] See above, § [408, p. 519, note 3].
[882] Accordingly, in January 1912, during the Turco-Italian War, the Italian gunboat Volturno, after having overhauled, in the Red Sea, the British steamer Africa going from Hodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other Turkish officers. Although the Declaration of London is not yet ratified by Great Britain, she did not protest. The case of the Manouba ought likewise to be mentioned here. This French steamer, which plies between Marseilles and Tunis, was stopped on January 16, 1912, by an Italian cruiser in the Mediterranean, and twenty-nine Turkish passengers, who were supposed to be Turkish officers on their way to the theatre of war, were forcibly taken off and made prisoners. On the protest of France, the captives were handed over to her in order to ascertain whether they were members of the Turkish forces, and it was agreed between the parties that the case should be settled by an arbitral award of the Permanent Court of Arbitration at the Hague, Italy asserting that she had only acted in accordance with article 47 of the Declaration of London.
The Declaration of London does not mention the case of enemy despatches embodying intelligence found on board such a neutral vessel as may not herself be captured for such carriage. For instance, in the case of a mail steamer pursuing her ordinary course and carrying a despatch of the enemy not in her mail bags but separately, the vessel may not, according to article 45, be seized. In this, and similar cases, may despatches be seized without the seizure of the vessel? It has been pointed out above, § [409], that, in a case of necessity, self-preservation would justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy. This certainly fits the case of a vessel transmitting oral intelligence. But if a vessel carried despatches, the necessity of detaining her ceases through seizure of the despatches themselves. The question—see above, § [412]—as to whether in such cases the despatches may be seized without seizure of the vessel ought, therefore, in analogy with article 47 of the Declaration of London, to be answered in the affirmative.
Quite different from the case of seizure of such enemy persons and despatches as a vessel cannot carry without exposing herself to punishment, is the case[883] where a vessel has such enemy persons and despatches on board as she is allowed to carry, but whom a belligerent believes it to be necessary in the interest of self-preservation to seize. Since necessity in the interest of self-preservation is, according to International Law, an excuse[884] for an illegal act, a belligerent may seize such persons and despatches, provided that such seizure is not merely desirable, but absolutely necessary[885] in the interest of self-preservation, as, for instance, in the case where an Ambassador of the enemy on board a neutral vessel is on the way to submit to a neutral a draft treaty of alliance injurious to the other belligerent.
[883] See Hall, § 253; Rivier, II. p. 390.
[884] See above, [vol. I. § 129].
[885] See above, [vol. I. § 130].