[366] See, on the one hand, the Fanny (1814), 1 Dodson, 443, and, on the other, the Nereide (1815), 9 Cranch, 388. See also below, § [424, p. 542 note 2].
Immunity of Vessels charged with Religious, Scientific, or Philanthropic Mission.
§ 186. Enemy vessels engaged in scientific discovery and exploration were, according to a general international usage in existence before the Second Peace Conference of 1907, granted immunity from attack and seizure in so far and so long as they themselves abstained from hostilities. The usage grew up in the eighteenth century. In 1766, the French explorer Bougainville, who started from St. Malo with the vessels La Boudeuse and L'Étoile on a voyage round the world, was furnished by the British Government with safe-conducts. In 1776, Captain Cook's vessels Resolution and Discovery, sailing from Plymouth for the purpose of exploring the Pacific Ocean, were declared exempt from attack and seizure on the part of French cruisers by the French Government. Again, the French Count Lapérouse, who started on a voyage of exploration in 1785 with the vessels Astrolabe and Boussole, was secured immunity from attack and seizure. During the nineteenth century this usage became quite general, and had almost ripened into a custom; examples are the Austrian cruiser Novara (1859) and the Swedish cruiser Vega (1878). No immunity, however, was granted to vessels charged with religious or philanthropic missions. A remarkable case occurred during the Franco-German war. In June, 1871, the Palme, a vessel belonging to the Missionary Society of Basle, was captured by a French man-of-war, and condemned by the Prize Court of Bordeaux. The owners appealed and the French Conseil d'État set the vessel free, not because the capture was not justified but because equity demanded that the fact that Swiss subjects owning sea-going vessels were obliged to have them sailing under the flag of another State, should be taken into consideration.[367]
[367] See Rivier, II. pp. 343-344; Dupuis, No. 158; and Boeck, No. 199.
The Second Peace Conference embodied the previous usage concerning immunity of vessels of discovery and exploration in a written rule and extended the immunity to vessels with a religious or philanthropic mission, for article 4 of Convention XI. enacts that vessels charged with religious, scientific, or philanthropic missions are exempt from capture.
It must be specially observed that it matters not whether the vessel concerned is a private or a public vessel.[368]
[368] See U.S. Naval War Code, article 13. The matter is discussed at some length by Kleen, II. § 210, pp. 503-505. Concerning the case of the English explorer Flinders, who sailed with the vessel Investigator from England, but exchanged her for the Cumberland, which was seized in 1803 by the French at Port Louis, in Mauritius, as she was not the vessel to which a safe-conduct was given, see Lawrence, § 185.
Immunity of Fishing-boats and small boats employed in local Trade.
§ 187. Coast fishing-boats, in contradistinction to boats engaged in deep-sea fisheries, were, according to a general, but not universal, custom in existence during the nineteenth century, granted immunity from attack and seizure so long and in so far as they were unarmed and were innocently employed in catching and bringing in fish.[369] As early as the sixteenth century treaties were concluded between single States stipulating such immunity to each other's fishing-boats for the time of war. But throughout the seventeenth and eighteenth centuries there were instances of a contrary practice, and Lord Stowell refused[370] to recognise in strict law any such exemption, although he recognised a rule of comity to that extent. Great Britain has always taken the standpoint that any immunity granted by her to fishing-boats was a relaxation[371] of strict right in the interest of humanity, but revocable at any moment, and that her cruisers were justified in seizing enemy fishing-boats unless prevented therefrom by special instructions on the part of the Admiralty.[372] But at the Second Peace Conference she altered her attitude, and agreed to the immunity not only of fishing vessels, but also of small boats employed in local trade. Article 3 of Convention XI. enacts, therefore, that vessels employed exclusively in coast fisheries, and small boats employed in local trade, are, together with appliances, rigging, tackle, and cargo, exempt from capture.
[369] The Paquette Habana (1899), 175, United States, 677. See U.S. Naval War Code, article 14; Japanese Prize Law, article 3 (1).