As regards recapture of neutral prizes,[917] the rule ought to be that ipso facto by recapture the vessel becomes free without payment of any salvage. Although captured, she was still the property of her neutral owners, and if condemnation had taken place at all, it would have been a punishment, and the recapturing belligerent has no interest whatever in the punishment of a neutral vessel by the enemy.
[917] See Hautefeuille, III. pp. 366-406; Gessner, pp. 344-356; Kleen, II. § 217; Geffcken in Holtzendorff, IV. pp. 778-780; Calvo, V. §§ 3210-3216.
But the matter of recapture of neutral prizes is not settled, no rule of International Law and no uniform practice of the several States being formulated regarding it. Very few treaties touch upon it, and the municipal regulations of the different States regarding prizes seldom mention it. According to British practice,[918] the recaptor of a neutral prize is entitled to salvage, in case the recaptured vessel would have been liable to condemnation if brought into an enemy port.
[918] The War Onskan (1799), 2 C. Rob. 299. See Holland, Prize Law, § 270.
Release after Capture.
§ 433. Besides the case in which captured vessels must be abandoned, because they cannot for some reason or another be brought into a port, there are cases in which they are released without a trial. The rule is that a captured neutral vessel is to be tried by a Prize Court in case the captor asserts her to be suspicious or guilty. But it may happen that all suspicion is dispelled even before the trial, and then the vessel is to be released at once. For this reason article 246 of Holland's Prize Law lays down the rule: "If, after the detention of the vessel, there should come to the knowledge of the commander any further acts tending to show that the vessel has been improperly detained, he should immediately release her...." Even after she has been brought into the port of a Prize Court, release can take place without a trial. Thus the German vessels Bundesrath and Herzog, which were captured in 1900 during the South African War and taken to Durban, were, after search had dispelled all suspicion, released without trial.
That the released vessel may claim damages is a matter of course, and article 64 of the Declaration of London precisely enacts it. But it should be mentioned that, since Convention XII. stipulates only appeals against judgments of National Prize Courts, the International Prize Court would not have jurisdiction in a case of the release of a vessel without trial, and that the question of compensation could, therefore, be settled through the diplomatic channel only.
III TRIAL OF CAPTURED NEUTRAL VESSELS
Lawrence, §§ 188-190—Maine, p. 96—Manning, pp. 472-483—Phillimore, III. §§ 433-508—Twiss, II. §§ 169-170—Halleck, II. pp. 393-429—Taylor, §§ 563-567—Wharton, III. §§ 328-330—Moore, VII. §§ 1222-1248—Wheaton, §§ 389-397—Bluntschli, §§ 841-862—Heffter, §§ 172-173—Geffcken in Holtzendorff, IV. pp. 781-788—Ullmann, § 196—Bonfils, Nos. 1676-1691—Despagnet, Nos. 677-682 bis—Rivier, II. pp. 353-356—Nys, III. pp. 710-718—Calvo, V. §§ 3035-3087—Fiore, III. Nos. 1681-1691, and Code, Nos. 1890-1929—Martens, II. §§ 125-126—Kleen, II. §§ 219-234—Gessner, pp. 357-427—Boeck, Nos. 740-800—Dupuis, Nos. 282-301, and Guerre, Nos. 218-223—Nippold, II. § 35—Perels, §§ 56-57—Testa, pp. 244-247—Hautefeuille, III. pp. 299-365—Atherley-Jones, Commerce in War (1906), pp. 361-594—Hirschmann, Das internationale Prisenrecht (1912), § 38—See also the monographs quoted above at the commencement of § [391], and Bulmerincq's articles on Le droit des prises maritimes in R.I. X.-XIII. (1878-1881).
Trial of Captured Vessels a Municipal Matter.