[914] The Actaeon (1815), 2 Dodson, 48; the Felicity (1819), 2 Dodson, 381; the Leucade (1855), Spinks, 217. See Phillimore, III. § 333; Twiss, II. § 166; Hall, § 77; Holland, Letters to the "Times" upon War and Neutrality (1909), pp. 140-150.
The Declaration of London proposes to settle the matter by a compromise. Recognising that neutral prizes may not as a rule be destroyed, and admitting only one exception to the rule, it empowers the captor under certain circumstances and conditions to demand the handing over, or to proceed himself to the destruction, of contraband carried by a neutral prize which he is compelled to abandon.
The very first rule of Chapter IV. of the Declaration of London, headed "Destruction of Neutral Prizes," is that of article 48, according to which, as a matter of principle, captured neutral vessels may not be destroyed, but must be taken into a port of a Prize Court. However, article 49 permits, as an exception to the rule, the destruction of such a captured neutral vessel as would herself be liable to condemnation, if the taking of the vessel into a port of a Prize Court would involve danger to the safety of the capturing cruiser, or to the success of the operations in which she is at the time of capture engaged.
There is, therefore, no doubt that a neutral prize may no longer be destroyed because the captor cannot spare a prize crew or because a port of a Prize Court is too far distant, or the like. The only justification for destruction of a neutral prize is danger to the captor or his operations at the time of capture. As regards the degree of danger required, it cannot be denied that the wording of article 49 does not provide any clue for a restrictive interpretation. But considering that article 51 speaks of an "exceptional necessity," it is hoped and to be expected that the International Prize Court would give such an interpretation to article 49 as would permit a resort to the sinking of neutral prizes in cases of absolute necessity only. Be that as it may, according to article 49 only such neutral prizes may be sunk as would be liable to confiscation if brought before a Prize Court. Sinking of captured neutral vessels—apart from neutral vessels which have acquired enemy character and may for this reason be sunk under the same conditions as enemy vessels—is, therefore, chiefly admitted in three[915] cases, namely: (1) When—see article 40 of the Declaration of London—the vessel carries contraband the value of which forms more than half the value of the cargo; (2) when a vessel has been captured for rendering those kinds of unneutral service which are enumerated by article 45 of the Declaration of London; (3) when—see article 21 of the Declaration of London—a vessel has been captured for breach of blockade. In no case, however, in which she is not liable to confiscation, may a neutral vessel under any circumstances and conditions be destroyed; she must always be abandoned if the capturing cruiser cannot take her into a port of a Prize Court.
[915] Only such cases of possible confiscation of a neutral vessel are mentioned in the text as are in accordance with the Declaration of London. The practice of some States has hitherto admitted confiscation in other cases also, for instance, in case of deficiency, spoliation, or defacement of ship papers, and in case of double and false papers; see above, §§ [426]-428. It will be the task of the International Prize Court to evolve a uniform practice with regard to such cases. Likewise the text does not enumerate the cases in which the sinking of a neutral vessel is permissible because she previously acquired enemy character; concerning this, see above, § [89].
However this may be, when the captor feels compelled to resort to the destruction of a neutral prize, he must place in safety all persons found on the captured vessel, and he must take on board all the captured ship's papers which are relevant for the purpose of deciding the validity of the capture (article 50). And (article 51) if the captor fails to establish the fact before the Prize Court that he destroyed the prize in the face of an exceptional necessity, the owners of the vessel and cargo must receive full compensation without any examination of, and any regard to, the question as to whether or no the capture itself was justifiable. Compensation must likewise be paid in case the capture is held by the Prize Court to be invalid, although the act of destruction has been held to be justifiable (article 52). And in any case, the owners of neutral goods not liable to condemnation which have been destroyed with the vessel, may always and under all circumstances and conditions claim damages (article 53).
Thus many safeguards have been established against arbitrariness in resorting to the destruction of neutral prizes. On the other hand, it would seem to be going too far to insist on the captor letting the prize go with her contraband on board, if he be compelled to abandon the prize. For this reason article 54 empowers the captor of a neutral vessel herself not liable to confiscation, to demand the handing over, or to proceed himself to the destruction, of any goods liable to confiscation found on board, if the taking of the vessel into a port of a Prize Court would involve danger to the captor or to the success of the operations in which he is at the time of capture engaged. Details concerning such destruction have been given above in § 406a (2).
Ransom and Recapture of Neutral Prizes.
§ 432. Regarding ransom of captured neutral vessels, the same is valid as regards ransom of captured enemy vessels.[916]