[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]