See the literature quoted above at the commencement of § [407].
Capture for Unneutral Service.
§ 411. According to customary rules hitherto prevailing, as well as according to the Declaration of London, a neutral vessel may be captured if visit or search establish the fact, or grave suspicion of the fact, that she is rendering unneutral service to the enemy. And such capture may take place anywhere throughout the range of the Open Sea and the territorial maritime belt of either belligerent.
Stress must be laid on the fact that mail steamers are on principle not exempt from capture for unneutral service. Although, according to article 1 of Convention XI., the postal correspondence of belligerents as well as of neutrals, whatever its official or private character, found on board a vessel on the sea is inviolable,[875] and a vessel may never, therefore, be considered to be rendering unneutral service by carrying amongst her postal correspondence despatches containing intelligence for the enemy, a mail steamer is nevertheless—see article 2 of Convention XI.—not exempt from the laws and customs of naval war respecting neutral merchantmen. A mail boat is, therefore, quite as much as any other merchantman, exposed to capture for rendering unneutral service.
[875] See above, §§ [191] and [319].
However this may be, capture is allowed only so long as the vessel is in delicto, that is during the time in which she is rendering the unneutral service concerned or immediately afterwards while she is being chased for having rendered unneutral service. A neutral vessel may not, therefore, be captured after the completion of a voyage specially undertaken for the purpose of transporting members of the armed forces of the enemy, or of transmitting intelligence for the enemy, or after having disembarked the military detachment of the enemy and the persons directly assisting the operations of the enemy in the course of the voyage whom she was transporting. And it must be specially emphasised that even such neutral vessel as had acquired—see article 46 of the Declaration of London—enemy character by rendering unneutral service, ceases to be in delicto after her unneutral service has come to an end. Thus, for instance, a neutral vessel which took a direct part in hostilities[876] may not afterwards be captured, nor may a vessel which has disembarked the agent of the enemy Government under whose orders or control she was navigating.
[876] Provided she did not—see above, § [410] (1)—commit acts of a piratical character; for such acts she may always be punished.
Penalty for Unneutral Service.
§ 412. According to the practice hitherto prevailing, a neutral vessel captured for carriage of persons or despatches in the service of the enemy could be confiscated. Moreover, according to British[877] practice, such part of the cargo as belonged to the owner of the vessel was likewise confiscated.[878] And if the vessel was not found guilty of carrying persons or despatches in the service of the enemy, and was not therefore condemned, the Government of the captor could nevertheless detain the persons as prisoners of war and confiscate the despatches, provided the persons and despatches concerned were in any way of such a character as to make a vessel, which was cognisant of this character, liable to punishment for transporting them for the enemy.
[877] The Friendship (1807), 6 C. Rob. 420; the Atalanta (1808), 6 C. Rob. 440. See Holland, Prize Law, §§ 95 and 105.