[900] The Maria (1799), 1 C. Rob. 340.
Resistance to be penal must be forcible resistance. It constitutes resistance, therefore, if a vessel applies force in resisting any legitimate action by the belligerent cruiser which requires her to stop and to be visited and searched. The term forcible resistance is not defined in detail by article 63 of the Declaration of London. It is, consequently, not certain whether the actual application of force only, or also the refusal, on the part of the master, to show the ship papers or to open locked parts of the vessel or locked boxes, and similar acts, constitutes forcible resistance. The International Prize Court, if established, would have to develop a practice which would decide these points.
Sailing under Enemy Convoy equivalent to Resistance.
§ 424. Wheaton excepted, all writers would seem to agree that the fact of neutral merchantmen sailing under a convoy of enemy men-of-war is equivalent to forcible resistance on their part, whether they themselves intend to resist by force or not. But the Government of the United States of America in 1810 contested this principle. In that year, during war between Great Britain and Denmark, many American vessels sailing from Russia used to seek protection under the convoy of British men-of-war, whereupon Denmark declared all such American vessels to be good and lawful prizes. Several were captured without making any resistance whatever, and were condemned by Danish Prize Courts. The United States protested, and claimed indemnities from Denmark, and in 1830 a treaty between the parties was signed at Copenhagen,[901] according to which Denmark had to pay 650,000 dollars as indemnity. But in article 5 of this treaty the parties "expressly declare that the present convention is only applicable to the cases therein mentioned, and, having no other object, may never hereafter be invoked by one party or the other as a precedent or a rule for the future."[902]
[901] Martens, N.R. VIII. p. 350.
[902] See Wheaton, §§ 530-537, and Taylor, § 693, p. 790. Wheaton was the negotiator of this treaty on the part of the United States.—With the case of neutral merchantmen sailing under enemy convoy, the other case—see above, § 185—in which neutral goods are placed on board an armed enemy vessel is frequently confused. In the case of the Fanny (1814), 1 Dodson, 443, Sir William Scott condemned neutral Portuguese property on the ground that placing neutral property on board an armed vessel was equal to resistance against visitation. But the Supreme Court of the United States of America, in the of the Nereide (1815), 9 Cranch, 388, held the contrary view. The Court was composed of four judges, of whom Story was one, and the latter dissented from the majority and considered the British practice correct. See Phillimore, III. § 341, and Wheaton, § 529.
Article 63 of the Declaration of London does not—as was pointed out above in § [423]—define the term forcible resistance, but it is to be expected that the practice of the International Prize Court would consider the sailing under enemy convoy equivalent to forcible resistance.
Resistance by Neutral Convoy.
§ 425. Since Great Britain did not, before agreeing to the Declaration of London, recognise the right of convoy and had always insisted upon the right of visitation to be exercised over neutral merchantmen sailing under the convoy of neutral men-of-war, the question has arisen as to whether such merchantmen are considered resisting visitation in case the convoying men-of-war only, and not the convoyed vessels themselves, offer resistance. British practice has answered the question in the affirmative. The rule was laid down in 1799[903] and in 1804[904] by Sir William Scott in the cases of Swedish vessels captured while sailing under the convoy of a Swedish man-of-war.
[903] The Maria, 1 C. Rob. 340.