§ 273. Private vessels only[553] can commit piracy. A man-of-war or other public ship, as long as she remains such, is never a pirate. If she commits unjustified acts of violence, redress must be asked from her flag State, which has to punish the commander and to pay damages where required. But if a man-of-war or other public ship of a State revolts and cruises the sea for her own purposes, she ceases to be a public ship, and acts of violence now committed by her are indeed piratical acts. A privateer is not a pirate as long as her acts of violence are confined to enemy vessels, because such acts are authorised by the belligerent in whose services she is acting. And it matters not that the privateer is originally a neutral vessel.[554] But if a neutral vessel were to take Letters of Marque from both belligerents, she would be considered a pirate.
[553] Piracy committed by the mutinous crew will be treated below, § 274.
[554] See details regarding this controversial point in Hall, § 81. See also below, [vol. II. §§ 83] and [330].
Doubtful is the case where a privateer in a civil war has received her Letters of Marque from the insurgents, and, further, the case where during a civil war men-of-war join the insurgents before the latter have been recognised as a belligerent Power. It is evident that the legitimate Government will treat such ships as pirates; but third Powers ought not to do so, as long as these vessels do not commit any act of violence against ships of these third Powers. Thus, in 1873, when an insurrection broke out in Spain, Spanish men-of-war stationed at Carthagena fell into the hands of the insurgents, and the Spanish Government proclaimed these vessels pirates, England, France, and Germany instructed the commanders of their men-of-war in the Mediterranean not to interfere as long as these insurgent vessels[555] abstained from acts of violence against the lives and property of their subjects.[556] On the other hand, when in 1877 a revolutionary outbreak occurred at Callao in Peru and the ironclad Huascar, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal without payment from one of these, and forcibly took two Peruvian officials from on board another where they were passengers, she was justly considered a pirate and attacked by the British Admiral de Horsey, who was in command of the British squadron in the Pacific.[557]
[555] See Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp. 179-182.
[556] But in the American case of the Ambrose Light (25 Federal 408; see also Moore, II. § 332, p. 1098) the Court did not agree with this. The Ambrose Light was a brigantine which, when on April 24, 1885, she was sighted by Commander Clark of the U.S.S. Alliance in the Caribbean Sea, was flying a strange flag showing a red cross on a white ground, but she afterwards hoisted the Columbian flag; when seized she was found to carry sixty armed soldiers, one cannon, and a considerable quantity of ammunition. She bore a commission from Columbian insurgents, and was designed to assist in the blockade of the port of Carthagena by the rebels. Commander Clark considered the vessel to be a pirate and sent her in for condemnation. The Court held that in absence of any recognition of the Columbian insurgents as a belligerent Power the Ambrose Light had been lawfully seized as a pirate. The vessel was, however, nevertheless released because the American Secretary of State had recognised by implication a state of war between the insurgents and the legitimate Columbian Government.
[557] As regards the case of the Argentinian vessel Porteña and the Spanish vessel Montezuma, afterwards called Cespedes, see Calvo, I. §§ 502 and 503.
The case must also be mentioned of a privateer or man-of-war which after the conclusion of peace or the termination of war by subjugation and the like continues to commit hostile acts. If such vessel is not cognisant of the fact that the war has come to an end she cannot be considered as a pirate. Thus the Confederate cruiser Shenandoah, which in 1865, for some months after the end of the American Civil War, attacked American vessels, was not considered a pirate[558] by the British Government when her commander gave her up to the port authorities at Liverpool in November 1865, because he asserted that he had not known till August of the termination of the war, and that he had abstained from hostilities as soon as he had obtained this information.
[558] See Lawrence, § 102.
It must be emphasised that the motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (animus furandi) is not required. Thus, for instance, if a private neutral vessel without Letters of Marque during war out of hatred of one of the belligerents were to attack and to sink vessels of such belligerent without plundering at all, she would nevertheless be considered as a pirate.[559]