CHAPTER VI VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS
I VISITATION
Bynkershoek, Quaest. jur. pub. I. c. 14—Vattel, III. § 114—Hall, §§ 270-276—Manning, pp. 433-460—Phillimore, III. §§ 322-344—Twiss, II. §§ 91-97—Halleck, II. pp. 255-271—Taylor, §§ 685-689—Wharton, III. §§ 325 and 346—Wheaton, §§ 524-537—Moore, VII. §§ 1199-1205—Bluntschli, §§ 819-826—Heffter, §§ 167-171—Geffcken in Holtzendorff, IV. pp. 773-781—Klüber, §§ 293-294—G. F. Martens, II. §§ 317 and 321—Ullmann, § 196—Bonfils, Nos. 1674-1691—Despagnet, Nos. 717-721—Rivier, II. pp. 423-426—Nys, III. pp. 682-692—Calvo, V. §§ 2939-2991—Fiore, III. Nos. 1630-1641, and Code, Nos. 1853-1877—Martens, II. § 137—Kleen, II. §§ 185-199, 209—Gessner, pp. 278-332—Boeck, Nos. 767-769—Dupuis, Nos. 239-252, and Guerre, Nos. 189-204—Bernsten, § 11—Nippold, II. § 35—Perels, §§ 52-55—Testa, pp. 230-242—Ortolan, II. pp. 214-245—Hautefeuille, III. pp. 1-299—Holland, Prize Law, §§ 1-17, 155-230—U.S. Naval War Code, articles 30-33—Schlegel, Sur la visite des vaisseaux neutres sous convoi (1800)—Mirbach, Die völkerrechtlichen Grundsätze des Durchsuchungsrechts zur See (1903)—Loewenthal, Das Untersuchungsrecht des internationalen Seerechts im Krieg und Frieden (1905)—Atherley-Jones, Commerce in War (1906), pp. 299-360—Hirschmann, Das internationale Prisenrecht (1912), §§ 33-34—Duboc in R.G. IV. (1897), pp 382-403—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 the Drafting Committee, article 63.
Conception of Right of Visitation.
§ 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'être 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 assistance to the enemy and to render him unneutral services.[888]
[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.
[887] See, for instance, Hübner, De la saisie des bâtiments neutres (1759), I. p. 227.
[888] Attention should be drawn to the Règlement international des prises maritimes, adopted at Heidelberg in 1887 by the Institute of International Law; §§ 1-29 regulate visit and search. See Annuaire, IX. (1888), p. 202.
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.
[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.
[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 Règlement international des prises maritimes of the Institute of International Law takes up the same attitude. 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 Règlement international des prises maritimes declares this right to cease "avec les préliminaires de la paix." See below, § [436].
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 asserted[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 assuring the absence of contraband and unneutral service.
[891] In former times Great Britain tried to extend visitation to neutral men-of-war. See Manning, p. 455.
[892] See, for instance, Gessner, p. 297, and Perels, § 52, IV.
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 asserted 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.
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 éviter tout désordre, n'approcheront pas de plus près les Français que la portée du canon, et pourront envoyer leur petite barque ou chaloupe à bord des navires français et faire entrer dedans deux ou trois hommes seulement, à qui seront montrés les passeports par le maître du navire français, par lesquels il puisse apparoir, non seulement de la charge, mais aussi du lieu de sa demeure et résidence, et du nom tant du maître ou patron que du navire même, afin que, par ces deux moyens, on puisse connaître, s'il porte des marchandises de contrebande; et qu'il apparaisse suffisamment tant de la qualité du dit navire que de son maître ou patron; auxquelles passeports on devra donner entière foi et créance."
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.
[894] See above, [vol. I. § 268].
[895] See Ortolan, II. p. 220, and Perels, § 53, pp. 284, 285.
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 passengers, 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.
[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.
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 assist 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.
[897] See above, [vol. I. § 269], and Holland, Prize Law, §§ 217-230.
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 hitherto 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.
[898] The Maria (1799), 1 C. Rob. 340.
[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.
What constitutes 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 constitute 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.
[900] The Maria (1799), 1 C. Rob. 340.
Resistance to be penal must be forcible resistance. It constitutes 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, constitutes forcible resistance. The International Prize Court, if established, would have to develop a practice which would decide these points.
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]
[901] Martens, N.R. VIII. p. 350.
[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 Fanny (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.
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.
[903] The Maria, 1 C. Rob. 340.
[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 circumstances, 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.
Deficiency of Papers.
§ 426. Since the purpose of visit is to ascertain the nationality of a vessel, the character of her cargo and passengers, 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 (passport); (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 (passport), she ought not to be confiscated for deficiency in papers only. Yet, if the cargo is also suspect, or if there are other circumstances 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.
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 hitherto differed with regard to other consequences of spoliation, and the like, of papers, but confiscation is certainly admissible in case other circumstances increase the suspicion.[906]
[905] The Hunter (1815), 1 Dodson, 480.
[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.
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 hitherto 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]
[907] The Sarah (1801), 3 C. Rob. 330.
[908] The Eliza and Katy (1805), 6 C. Rob. 192.
[909] The St. Nicholas (1816), 1 Wheaton, 417.
[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.
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 pronounce 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]
[911] The Règlement international des prises maritimes, adopted by the Institute of International Law at its meeting at Heidelberg in 1887, regulates capture in §§ 45-62; see Annuaire, IX. (1888), p. 204.
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 pronounced by a Prize Court after a thorough investigation into all the circumstances 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 passengers, 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.
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.
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 pronounced 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-Japanese 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.
[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 circumstances 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 circumstances and conditions be destroyed; she must always be abandoned if the capturing cruiser cannot take her into a port of a Prize Court.
[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 hitherto 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 circumstances 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 § 406a (2).
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]
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.
[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.
But the matter of recapture of neutral prizes is not settled, no rule of International Law and no uniform practice of the several States being formulated regarding it. Very few treaties touch upon it, and the municipal regulations of the different States regarding prizes seldom mention it. According to British practice,[918] the recaptor of a neutral prize is entitled to salvage, in case the recaptured vessel would have been liable to condemnation if brought into an enemy port.
[918] The War Onskan (1799), 2 C. Rob. 299. See Holland, Prize Law, § 270.
Release after Capture.
§ 433. Besides the case in which captured vessels must be abandoned, because they cannot for some reason or another be brought into a port, there are cases in which they are released without a trial. The rule is that a captured neutral vessel is to be tried by a Prize Court in case the captor asserts her to be suspicious or guilty. But it may happen that all suspicion is dispelled even before the trial, and then the vessel is to be released at once. For this reason article 246 of Holland's Prize Law lays down the rule: "If, after the detention of the vessel, there should come to the knowledge of the commander any further acts tending to show that the vessel has been improperly detained, he should immediately release her...." Even after she has been brought into the port of a Prize Court, release can take place without a trial. Thus the German vessels Bundesrath and Herzog, which were captured in 1900 during the South African War and taken to Durban, were, after search had dispelled all suspicion, released without trial.
That the released vessel may claim damages is a matter of course, and article 64 of the Declaration of London precisely enacts it. But it should be mentioned that, since Convention XII. stipulates only appeals against judgments of National Prize Courts, the International Prize Court would not have jurisdiction in a case of the release of a vessel without trial, and that the question of compensation could, therefore, be settled through the diplomatic channel only.
III TRIAL OF CAPTURED NEUTRAL VESSELS
Lawrence, §§ 188-190—Maine, p. 96—Manning, pp. 472-483—Phillimore, III. §§ 433-508—Twiss, II. §§ 169-170—Halleck, II. pp. 393-429—Taylor, §§ 563-567—Wharton, III. §§ 328-330—Moore, VII. §§ 1222-1248—Wheaton, §§ 389-397—Bluntschli, §§ 841-862—Heffter, §§ 172-173—Geffcken in Holtzendorff, IV. pp. 781-788—Ullmann, § 196—Bonfils, Nos. 1676-1691—Despagnet, Nos. 677-682 bis—Rivier, II. pp. 353-356—Nys, III. pp. 710-718—Calvo, V. §§ 3035-3087—Fiore, III. Nos. 1681-1691, and Code, Nos. 1890-1929—Martens, II. §§ 125-126—Kleen, II. §§ 219-234—Gessner, pp. 357-427—Boeck, Nos. 740-800—Dupuis, Nos. 282-301, and Guerre, Nos. 218-223—Nippold, II. § 35—Perels, §§ 56-57—Testa, pp. 244-247—Hautefeuille, III. pp. 299-365—Atherley-Jones, Commerce in War (1906), pp. 361-594—Hirschmann, Das internationale Prisenrecht (1912), § 38—See also the monographs quoted above at the commencement of § [391], and Bulmerincq's articles on Le droit des prises maritimes in R.I. X.-XIII. (1878-1881).
Trial of Captured Vessels a Municipal Matter.
§ 434. Although belligerents have, under certain circumstances, according to International Law, the right to capture neutral vessels, and although they have the duty to bring these vessels for trial before a Prize Court, such trials are in no way an international matter. Just as Prize Courts—apart from the proposed International Prize Court—are municipal[919] institutions, so trials of captured neutral vessels by these Prize Courts are municipal matters. The neutral home States of the vessels are not represented and, directly at any rate, not concerned in the trial. Nor is, as commonly maintained, the law administered by Prize Courts International Law. These Courts apply the law of their country. The best proof of this is the fact that the practice of the Prize Courts of the several countries has hitherto differed in many points. Thus, for instance, the question what is and what is not contraband, and, further, the question when an attempt to break blockade begins and when it ends, have hitherto been differently answered by the practice of different States.
[919] See above, § [192]. The matter is regulated so far as Great Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch. 25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The Règlement international des prises maritimes, adopted in 1887 at Heidelberg by the Institute of International Law, provides in §§ 63-118 detailed rules concerning the organisation of Prize Courts and the procedure before them; see Annuaire, IX. (1888), p. 208.
Many writers, however, maintain that Prize Courts are International Courts, and that the law administered by these courts is International Law. Lord Stowell again and again[920] emphatically asserted it, and the vast majority of English and American writers[921] follow him. But it is to be expected that the recognition of the difference between Municipal and International Law, as expounded above, [Vol. I., §§ 20]-25, and of the fact that States only, and neither their Courts nor officials nor citizens, are subjects of International Law, will lead to the general recognition of the fact that the law applied by National Prize Courts is not and cannot be International Law.
[920] The Maria (1799), 1 C. Rob. 340; the Recovery (1807), 6 C. Rob. 341; the Fox and others (1811), Edwards, 311.
[921] See, for instance, Halleck, II. p. 411; Maine, p. 96; Manning, p. 472; Phillimore, III. §§ 433-436; Hall, § 277. On the other hand, Holland, Studies, p. 199; Westlake, II. p. 289; and Scott, Conferences, p. 467, distinctly agree with me.
And matters will remain as they are even after the establishment of the International Prize Court and ratification of the Declaration of London. The law of this Declaration is certainly International Law, but it will be binding only upon the States, and they, on their part, must embody it in their Municipal Law so that their Prize Courts are obliged to administer such a law in prize cases as is in conformity with the Declaration of London. It will be the task of the International Prize Court[922] to control the National Prize Courts in that direction. A State which is a party to the Declaration and would nevertheless order its Prize Courts to apply a law which is in opposition to the Declaration of London, would commit an international delinquency, but its Prize Courts would be obliged to apply such law.
[922] Trial before this Court is, of course, an international matter.
Result of Trial.
§ 435. The trial of a captured neutral ship can have one or more of five results:—vessel and cargo can be condemned,[923] or the vessel alone, or the cargo alone; and the vessel and cargo can be released either with or without costs and damages. Costs and damages must be allowed when capture was not justified, and, after the ratification of the Declaration of London and the establishment of the International Prize Court, an appeal may, according to article 64 of the Declaration of London and article 4 of Convention XII., be brought before the International Prize Court if costs and damages are refused or inadequately allowed by a Prize Court. But it must be emphasised that capture might be justified, as, for instance, in the case of spoliation of papers, although the Prize Court did not condemn the vessel, and, further, that costs and damages are never allowed in case a part only of the cargo is condemned, although the vessel herself and the greater part of the cargo are released. That, in case the captor is unable to pay the costs and damages allowed to a released neutral vessel, his Government has to indemnify the vessel, there ought to be no doubt, for a State bears "vicarious" responsibility[924] for internationally injurious acts of its naval forces.
[923] It would seem to be obvious that condemnation of the vessel involves the loss of the vessel at the date of capture; see Andersen v. Marten, L.R. (1907) 2 K.B. 248.
[924] See above, [vol. I. § 163].
Trial after Conclusion of Peace.
§ 436. It is a moot question whether neutral vessels captured before conclusion of peace may be tried after the conclusion of peace.[925] I think that the answer must be in the affirmative, even if a special clause is contained in the Treaty of Peace, which stipulates that captured but not yet condemned vessels of the belligerents shall be released. A trial of neutral prizes is in any case necessary for the purpose of deciding the question whether capture was justified or not, and whether, should condemnation not be justified, the neutral vessels may claim costs and indemnities. Thus, after the conclusion of the Abyssinian War, in December 1896, the Italian Prize Commission, in the case of the Doelwijk,[926] claimed the right to try the vessel in spite of the fact that peace had been concluded between the time of capture and trial, declared the capture of the vessel and cargo to have been justified, but pronounced that, peace having been concluded, confiscation of vessel and cargo would no longer be lawful.
[925] See Perels, § 57, p. 309, in contradistinction to Bluntschli, § 862. But there is, of course, no doubt that a belligerent can exercise an act of grace and release such prizes. Thus, in November 1905, at the end of the Russo-Japanese War, the Mikado proclaimed the unconditional release of all neutral prizes captured after the signing but before the ratification of the Peace of Portsmouth. Thereby, three German vessels, two English, and one Norwegian escaped confiscation, which in strict law—see above, [p. 534, note 4]—would have been justified.
[926] See Martens, N.R.G. 2nd Ser. XXVIII. pp. 66-90.
Different from the question whether neutral prizes may be tried after the conclusion of peace is the other question whether they may be condemned to be confiscated. In the above-mentioned case of the Doelwijk the question was answered in the negative, but I believe it ought to have been answered in the affirmative. Confiscation of vessel and cargo having the character of a punishment, it would seem that the punishment may be inflicted after the conclusion of peace provided the criminal act concerned was consummated before peace was concluded. But nothing, of course, stands in the way of a belligerent taking a more lenient view and ordering his Prize Courts not to pronounce confiscation of neutral vessels after the conclusion of peace.
The Declaration of London does not settle either the former or the latter question, and it would therefore be the task of the International Prize Court to evolve a uniform practice in the cases concerned.
Protests and Claims of Neutrals after Trial.
§ 437. Hitherto, if a trial led to condemnation, and if the latter was confirmed by the Court of Appeal, the matter as between the captor and the owner of the captured vessel and cargo was finally settled. But the right of protection,[927] which a State exercises over its subjects and their property abroad, may nevertheless have been the cause of diplomatic protests and claims on the part of the neutral home State of a condemned vessel or cargo, in case the verdict of the Prize Courts was considered to be not in accordance with International Law or formally or materially unjust. It is through such protests and claims that the matter, which was hitherto a mere municipal one, became of international importance. And history records many instances of cases of interposition of neutral States after trials of vessels which had sailed under their flags. Thus, for instance, in the famous case of the Silesian Loan,[928] it was the fact that Frederick II. of Prussia considered the procedure of British Prize Courts regarding a number of Prussian merchantmen captured during war between Great Britain and France in 1747 and 1748 as unjust, which made him in 1752 resort to reprisal and cease the payment of the interest of the Silesian Loan. The matter was settled[929] in 1756, through the payment of £20,000 as indemnity by Great Britain. Thus, further, after the American Civil War, articles 12-17 of the Treaty of Washington[930] provided the appointment of three Commissioners for the purpose, amongst others, of deciding all claims against verdicts of the American Prize Courts. And when in 1879, during war between Peru and Chili, the German vessel Luxor was condemned by the Peruvian Courts, Germany interposed and the vessel was released.[931]
[927] See above, [vol. I. § 319].
[929] See Martens, Causes Célèbres, II. p. 167.
[930] See Martens, N.R.G. XX. p. 698.
The ratification of the Declaration of London and the establishment of the International Prize Court would finally do away with such grave international disputes.