[904] The Elsebe, 5 C Rob. 173.
Since Great Britain—see above, § [417]—has abandoned her opposition to the right of convoy and has agreed to articles 61 and 62 of the Declaration of London which lay down rules concerning the matter, the resistance by a neutral convoy to visitation may not, under ordinary circumstances, be considered to be resistance on the part of the convoyed neutral merchantman. If, however, the commander of a convoy, after having refused to give the written information mentioned in article 61 or to allow the investigation mentioned in article 62, forcibly resists visitation of the convoyed merchantmen by a belligerent cruiser, the question as to whether resistance by a convoy is equivalent to resistance by a convoyed vessel, may even under the Declaration of London arise.
Deficiency of Papers.
§ 426. Since the purpose of visit is to ascertain the nationality of a vessel, the character of her cargo and passengers, and the ports from and to which she is sailing, it is obvious that this purpose cannot be realised in case the visited vessel is deficient in her papers. As stated above in [Vol. I. § 262], every merchantman ought to carry the following papers: (1) A certificate of registry or a sea-letter (passport); (2) the muster-roll; (3) the log-book; (4) the manifest of cargo; (5) bills of lading, and (6) if chartered, the charter-party. Now, if a vessel is visited and cannot produce one or more of the papers mentioned, she is suspect. Search is, of course, admissible for the purpose of verifying the suspicion, but it may be that, although search has not produced any proof of guilt, the suspicion is not dispelled. In such case she may be seized and brought to a port for thorough examination. But, with the exception of the case that she cannot produce either certificate of registry or a sea-letter (passport), she ought not to be confiscated for deficiency in papers only. Yet, if the cargo is also suspect, or if there are other circumstances which increase the suspicion, confiscation would be, I believe, in the discretion of the Prize Court.
The Declaration of London does not mention the point, and the International Prize Court would, therefore, have to evolve a system of rules to be applied in cases concerned.
Spoliation, Defacement, and Concealment of Papers.
§ 427. Mere deficiency of papers does not arouse the same suspicion which a vessel incurs if she destroys[905] or throws overboard any of her papers, defaces them or conceals them, and in especial in case the spoliation of papers takes place at the time when the visiting vessel comes in sight. Whatever her cargo may be, a vessel may at once be seized without further search so soon as it becomes apparent that spoliation, defacement, or concealment of papers has taken place. The practice of the several States has hitherto differed with regard to other consequences of spoliation, and the like, of papers, but confiscation is certainly admissible in case other circumstances increase the suspicion.[906]
[905] The Hunter (1815), 1 Dodson, 480.
[906] See the case of the Apollo in Calvo, V. § 2989.
The Declaration of London does not mention the case of spoliation of papers, and it would therefore be the task of the International Prize Court to evolve a uniform practice concerning the subject.