The Knight Commander was condemned by the Prize Court at Vladivostok on August 16, 1904, and the sentence was confirmed on December 5, 1905, by the Court of Appeal at St. Petersburg, which found it "impossible to agree that the destruction of a neutral vessel is contrary to the principles of international law." The Russian Government remained firm on the point, and in 1908 declined to submit the case to arbitration.
The Institut de Droit International in its Code des Prises maritimes, voted in 1887, Art. 50 (not, be it observed, professing to state the law as it is, but as it should be), had taken a view in accordance with that maintained by the British Government (Annuaire for 1888, t. ix. p. 228; cf. ib. pp. 200, 201). (The Manuel des lois de la guerre maritime, voted at Oxford in 1913, dealing exclusively with "les rapports entre les belligérants," does not deal with the topic in question.) It was, however, the opinion of the present writer, as will appear from the following letters, that no rule of international law, by which the sinking of even neutral prizes was absolutely prohibited, could be shown to exist. He had previously touched upon this question in his evidence before the Royal Commission on the Supply of Food, &c., in Time of War, on November, 4, 1903, and returned to it later in his paper upon "The Duties of Neutrals," read to the British Academy on April 12, 1905, Transactions, ii. p. 66. It was reproduced in French, German, Belgian, and Spanish periodicals, and was cited in the judgment of the St. Petersburg Court of Appeal in the case of the Knight Commander.
The subsequent history of the question, and, in particular, of the rules suggested in Arts. 48-54 of the unratified Declaration of London, may be claimed in favour of the correctness of the opinion maintained in the letters.
Sir,—The neutral Powers have serious ground of complaint as to the mode in which Russia is conducting operations at sea. It may, however, be doubted whether public opinion is sufficiently well informed to be capable of estimating the comparative gravity of the acts which are just now attracting attention. Putting aside for the moment questions arising out of the Straits Convention of 1856, as belonging to a somewhat different order of ideas, we may take it that the topics most needing careful consideration relate to removal of contraband from the ship that is carrying it without taking her in for adjudication; [175]interference with mail steamers and their mail bags; perversely wrong decisions of Prize Courts; confiscation of ships as well as of their contraband cargo; destruction of prizes at sea; the list of contraband. Of these topics, the two last mentioned are probably the most important, and on each of these I will ask you to allow me to say a few words.
1. There is no doubt that by the Russian regulations of 1895, Art. 21; and instructions of 1901, Art. 40, officers are empowered to destroy their prizes at sea, no distinction being drawn between neutral and enemy property, under such exceptional circumstances as the bad condition or small value of the prize, risk of recapture, distance from a Russian port, danger to the Imperial cruiser or to the success of her operations. The instructions of 1901, it may be added, explain that an officer "incurs no responsibility whatever" for so acting if the captured vessel is really liable to confiscation and the special circumstances imperatively demand her destruction. It is fair to say that not dissimilar, though less stringent, instructions were issued by France in 1870 and by the United States in 1898; also that, although the French instructions expressly contemplate "l'établissement des indemnités à attribuer aux neutres," a French prize Court in 1870 refused compensation to neutral owners for the loss of their property on board of enemy ships burnt at sea.
The question, however, remains whether such regulations are in accordance with the rules of international law. The statement of these rules by Lord Stowell, who speaks of them as "clear in principle and established in practice," may, I think, be summarised as follows: An enemy's ship, after her crew has been placed in safety, may be destroyed. Where there is any ground for believing that the ship, or any part of her cargo, is neutral property, such action is justifiable only in cases of "the gravest importance to the captor's own State," after securing the ship's papers and subject to [176]the right of neutral owners to receive fall compensation (Actaeon, 2 Dods. 48; Felicity, ib. 381; substantially followed by Dr. Lushington in the Leucade, Spinks, 221). It is not the case, as is alleged by the Novoe Vremya, that any British regulations "contain the same provisions as the Russian" on this subject. On the contrary, the Admiralty Manual of 1888 allows destruction of enemy vessels only; and goes so far in the direction of liberality as to order the release, without ransom, of a neutral prize which either from its condition, or from lack of a prize crew, cannot be sent in for adjudication. The Japanese instructions of 1894 permit the destruction of only enemy vessels; and Art. 50 of the carefully debated "Code des prises" of the Institut de Droit International is to the same effect. It may be worth while to add that the eminent Russian jurist, M. de Martens, in his book on international law, published some twenty years ago, in mentioning that the distance of her ports from the scenes of naval operations often obliges Russia to sink her prizes, so that "ce qui les lois maritimes de tous les états considèrent comme un moyen auquel il n'y a lieu de recourir qu'à la dernière extrémité, se transformera nécessairement pour nous en règle normale," foresaw that "cette mesure d'un caractère général soulévera indubitablement contre notre pays un mécontentement universel."
2. A far more important question is, I venture to think, raised by the Russian list of contraband, sweeping, as it does, into the category of "absolutely contraband" articles things such as provisions and coal, to which a contraband character, in any sense of the term, has usually been denied on the Continent, while Great Britain and the United States have admitted them into the category of "conditional" contraband, only when shown to be suitable and destined for the armed forces of the enemy, or for the relief of a place besieged. Still more unwarrantable is the Russian claim to interfere with the trade in raw cotton. Her prohibition of [177]this trade is wholly unprecedented, for the treatment of cotton during the American Civil War will be found on examination to have no bearing on the question under consideration. I touch to-day upon this large subject only to express a hope that our Government, in concert, if possible, with other neutral Governments, has communicated to that of Russia, with reference to its list of prohibited articles, a protest in language as unmistakable as that employed by our Foreign Office in 1885; "I regret to have to inform you, M. l'Ambassadeur," wrote Lord Granville, "that Her Majesty's Government feel compelled to take exception to the proposed measure, as they cannot admit that, consistently with the law and practice of nations, and with the rights of neutrals, provisions in general can be treated as contraband of war." A timely warning that a claim is inadmissible is surely preferable to waiting till bad feeling has been aroused by the concrete application of an objectionable doctrine.
I am, Sir, your obedient servant,
T. E. HOLLAND