How Arrest is effected.
§ 270. Arrest of a vessel takes place either after visit and search have shown her liable thereto, or after she has committed some act which alone already justifies her seizure. Arrest is effected through the commander of the arresting man-of-war appointing one of her officers and a part of her crew to take charge of the arrested vessel. Such officer is responsible for the vessel and her cargo, which latter must be kept safe and intact. The arrested vessel, either accompanied by the arresting vessel or not, must be brought to such harbour as is determined by the cause of the arrest. Thus, neutral or enemy ships seized in time of war are always[545] to be brought into a harbour of the flag State of the captor. And the same is the case in time of peace, when a vessel is seized because her flag cannot be verified, or because she was sailing under no flag at all. On the other hand, when a fishing vessel or a bumboat is arrested in the North Sea, she is always to be brought into a harbour of her flag State and handed over to the authorities there.[546]
[545] Except in the case of distress or unseaworthiness; see below, [vol. II. § 193].
[546] See below, §§ [282] and [283].
Shipwreck and Distress on the Open Sea.
§ 271. It is at present the universal conviction on the part of the States that goods and persons shipwrecked on the Open Sea do not thereby lose the protection of the flag State of the shipwrecked vessel. No State is allowed to recognise appropriation of abandoned vessels and other derelicts on the Open Sea by those of its subjects who take possession thereof. But every State can by its Municipal Laws enact that those of its subjects who take possession of abandoned vessels and of shipwrecked goods need not restore them to their owners without salvage,[547] whether the act of taking possession occurred on the actual Open Sea or within territorial waters and on shore of the respective State.
[547] The Conference of the Maritime Committee held at Brussels in September 1910 also produced a draft convention concerning salvage, which the British Government likewise intends to ratify provided Parliament passes the "Maritime Conventions Bill," see above, [§ 265, p. 333, note 2], and Supplement to the American Journal of International Law, IV. (1910), p. 126. According to the practice of the Admiralty Court—see the case of the Johann Friederich, 1 W. Robinson, 35—salvage on the Open Sea is, just like collisions, a matter of communis juris upon which the Courts of all maritime States are competent to adjudicate. See Phillimore, IV. § 815; and Dicey, "Conflict of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the Merchant Shipping Act, 1894.
As regards vessels in distress on the Open Sea, some writers[548] maintain that men-of-war must render assistance even to foreign vessels in distress. But it is impossible to say that there is a customary or conventional rule of the Law of Nations in existence which imposes upon all States the duty of instructing their men-of-war to render assistance to foreign vessels in distress, although many States order by Municipal Regulations their men-of-war to render such assistance, and although morally every vessel is bound to render assistance to another vessel in distress.[549]
[548] See, for instance, Perels, § 25, and Fiore, II. No. 732.
[549] According to article 11 of the draft convention concerning salvage produced by the Conference of the Maritime Committee at Brussels in September 1910—see above, [note 1]—"every master shall be obliged, as far as he can do so without serious danger to his vessel, his crew, or his passengers, to lend assistance to any person, even an enemy, found at sea in danger of perishing. The owner of the vessel shall not be liable for violations of the foregoing provision."