§ 429. From the statements given above in §§ 368-428 regarding blockade, contraband, unneutral service, and visitation, it is obvious that capture may take place either because the vessel, or the cargo, or both, are liable to confiscation, or because grave suspicion demands a further inquiry which can be carried out in a port only. Both cases are alike so far as all details of capture are concerned, and in the latter case Prize Courts may pronounce capture to be justified, although no ground for confiscation of either vessel or cargo, or both, has been detected.
The mode of capture is the same as described above in § 184 regarding capture of enemy vessels.[911]
[911] The Règlement international des prises maritimes, adopted by the Institute of International Law at its meeting at Heidelberg in 1887, regulates capture in §§ 45-62; see Annuaire, IX. (1888), p. 204.
Effect of Capture of Neutral Vessels, and their Conduct to Port.
§ 430. The effect of capture of neutral vessels is in every way different from the effect of capture of enemy vessels,[912] since the purpose of capture differs in these two cases. Capture of enemy vessels is made for the purpose of appropriating them in the exercise of the right of belligerents to appropriate all enemy property found on the Open Sea or in the maritime territorial belt of either belligerent. On the other hand, neutral merchantmen are captured for the purpose of confiscation of vessel or cargo, or both, as punishment for certain special acts, the punishment to be pronounced by a Prize Court after a thorough investigation into all the circumstances of the special case. Therefore, although the effect of capture of neutral vessels is that the vessels, the individuals, and the goods thereon are placed under the captor's authority, her officers and crew never become prisoners of war. They are indeed to be detained as witnesses for the trial of the vessel and cargo, but nothing stands in the way of releasing such of them as are not wanted for that purpose. As regards passengers, if any, they have to be released as soon as possible, with the exception of those enemy persons who may be made prisoners of war.
Regarding the conduct of captured neutral vessels to a port of a Prize Court, the same is valid as regards conduct of captured enemy vessels[913] to such port.
Destruction of Neutral Prizes.
§ 431. That as a rule captured neutral vessels may not be sunk, burned, or otherwise destroyed has always been universally recognised just as that captured enemy merchantmen may not as a rule be destroyed. But up to the time of the agreement on the Declaration of London it was a moot question whether the destruction of captured neutral vessels was likewise exceptionally allowed instead of bringing them before a Prize Court. British[914] practice did not, as regards the neutral owner of the vessel, hold the captor justified in destroying a vessel, however exceptional the case may have been, and however meritorious the destruction of the vessel may have been from the point of view of the Government of the captor. For this reason, should a captor, for any motive whatever, have destroyed a neutral prize, full indemnities had to be paid to the owner, although, if brought into a port of a Prize Court, condemnation of vessel and cargo would have been pronounced beyond doubt. The rule was, that a neutral prize must be abandoned in case it could not, for any reason whatever, be brought to a port of a Prize Court. But the practice of other States did not recognise this British rule. The question became of great importance in 1905, during the Russo-Japanese War, when Russian cruisers sank the British vessels Knight Commander, Oldhamia, Icona, St. Kilda, and Hipsang, the German vessels Thea, and Tetardos, and the Danish vessel Princesse Marie. Russia paid damages to the owners of the vessels Icona, St. Kilda, Thea, Tetardos, and Princesse Marie, because her Prize Courts declared that the capture of these vessels was not justified, but she refused to pay damages to the owners of the other vessels destroyed, because her Prize Courts considered them to have been justly captured.