UNNEUTRAL SERVICE
I
THE DIFFERENT KINDS OF UNNEUTRAL SERVICE
Hall, §§ 248-253--Lawrence, §§ 260-262--Westlake, II. pp.
261-265--Phillimore, III. §§ 271-274--Halleck, II. pp.
289-301--Taylor, §§ 667-673--Walker, § 72--Wharton, III. §
374--Wheaton, §§ 502-504 and Dana's note No. 228--Moore, VII. §§
1264-1265--Bluntschli, §§ 815-818--Heffter, § 161A--Geffcken in
Holtzendorff, IV. pp. 731-738--Ullmann, § 192--Bonfils, Nos.
1584-1588--Despagnet, Nos. 716-716 _bis_--Rivier, II. pp.
388-391--Nys, III. pp. 675-681--Calvo, V. §§ 2796-2820--Fiore,
III. Nos. 1602-1605, and Code, Nos. 1836-1840--Martens, II. §
136--Kleen, I. §§ 103-106--Boeck, Nos. 660-669--Pillet, p.
330--Gessner, pp. 99-111--Perels, § 47--Testa, p. 212--Dupuis,
Nos. 231-238, and _Guerre_, Nos. 172-188--Bernsten, § 9--Nippold,
II. § 35--Holland, _Prize Law_, §§ 88-105--U.S. Naval War Code,
articles 16 and 20--Hautefeuille, II. pp. 173-188--Ortolan, II.
pp. 209-213--Mountague Bernard, _Neutrality of Great Britain
during the American Civil War_ (1870), pp. 187-205--Marquardsen,
_Der Trent-Fall_ (1862), pp. 58-71--Hirsch, _Kriegskonterbande und
verbotene Transporte in Kriegszeiten_ (1897), pp.
42-55--Takahashi, _International Law during the Chino-Japanese
War_ (1899), pp. 52-72--Vetzel, _De la contrebande par analogie en
droit maritime internationale_ (1901)--Atherley-Jones, _Commerce
in War_ (1906), pp. 304-315--Hirschmann, _Das internationale
Prisenrecht_ (1912), §§ 31-32--See also the monographs quoted
above at the commencement of § 391, and the General Report
presented to the Naval Conference of London on behalf of the
Drafting Committee, articles 45-47.
[Sidenote: Unneutral service in general.]
§ 407. Before the Declaration of London the term _unneutral service_ was
used by several writers with reference to the carriage of certain
persons and despatches for the enemy on the part of neutral vessels. The
term has been introduced in order to distinguish the carriage of persons
and despatches for the enemy from the carriage of contraband, as these
were often confounded with each other. Since contraband consists of
certain goods only and never of persons or despatches, a vessel carrying
persons and despatches for the enemy is not thereby actually carrying
contraband.[858] And there is another important difference between the
two. Carriage of contraband need not necessarily, and in most cases
actually does not, take place in the direct service of the enemy. On the
other hand, carriage of persons and despatches for the enemy always
takes place in the direct service of the enemy, and, consequently,
represents a much more intensive assistance of, and a much more intimate
connection with, the enemy than carriage of contraband. For these
reasons a distinct treatment of carriage of contraband, on the one hand,
and carriage of persons and despatches, on the other, was certainly
considered desirable by many publicists. Those writers who did not adopt
the term _unneutral service_, on account of its somewhat misleading
character, preferred[859] the expression _analogous of contraband_,
because in practice maritime transport for the enemy was always treated
in analogy with, although not as, carriage of contraband.
[Footnote 858: This was recognised in the case of the _Yangtsze
Insurance Association_ v. _Indemnity Mutual Marine Assurance Company_,
L.R. (1908), 1 K.B. 910 and 2 K.B. 504.]
[Footnote 859: It was also preferred in the first edition of this work.
But it was necessary to abandon further resistance on account of the
fact that after the official adoption, in the translation of the
Declaration of London, of the term _unneutral service_ it was useless to
oppose it.]
The Declaration of London puts the whole matter upon a new and very much
enlarged basis, for Chapter III. treats in articles 45 to 47, under the
heading _De l'assistance hostile_--the official English translation of
which is _unneutral service_--not only of the carriage of persons for
the enemy on the part of a neutral vessel, but also of the transmission
of intelligence in the interest of the enemy, the taking of a direct
part in the hostilities, and a number of other acts on the part of a
neutral vessel. Accordingly the Declaration of London makes a
distinction between two kinds of unneutral service, meting out for the
one a treatment analogous in a general way to contraband, and for the
other a treatment analogous to that of enemy merchant vessels. Carriage
of individual members of the armed forces of the enemy and a certain
case of transmission of intelligence in the interest of the enemy
constitute the first kind, and four groups of acts creating enemy
character for the vessel concerned constitute the second kind.[860]
[Footnote 860: Although--see above, §§ 173 and 174--prevention of
unneutral service to the enemy is a means of sea warfare, it chiefly
concerns neutral commerce, and is, therefore, more conveniently treated
with neutrality.]
[Sidenote: Carriage of Persons for the Enemy.]
§ 408. Either belligerent may punish neutral vessels for carrying, in
the service of the enemy, certain persons.
Such persons included, according to the customary rules of International
Law hitherto prevailing, not only members of the armed forces of the
enemy, but also individuals who were not yet members of the armed forces
but who would have become so as soon as they reached their place of
destination, and, thirdly, non-military individuals in the service of
the enemy either in such a prominent position that they could be made
prisoners of war, or who were going abroad as agents for the purpose of
fostering the cause of the enemy. Thus, for instance, if the head of the
enemy State or one of his cabinet ministers fled the country to avoid
captivity, the neutral vessel that carried him could have been punished,
as could also the vessel carrying an agent of the enemy sent abroad to
negotiate a loan and the like. However, the mere fact that enemy persons
were on board a neutral vessel did not in itself prove that these
persons were carried by the vessel for the enemy and in his service.
This was the case only when either the vessel knew of the character of
the persons and nevertheless carried them, thereby acting in the service
of the enemy, or when the vessel was directly hired by the enemy for
the purpose of transport of the individuals concerned. Thus, for
instance, if able-bodied men booked their passages on a neutral vessel
to an enemy port with the secret intention of enlisting in the forces of
the enemy, the vessel could not be considered as carrying persons for
the enemy; but she could be so considered if an agent of the enemy
openly booked their passages. Thus, further, if the fugitive head of the
enemy State booked his passage under a false name, and concealed his
identity from the vessel, she could not be considered as carrying a
person for the enemy; but she could be so considered if she knew whom
she was carrying, because she was then aware that she was acting in the
service of the enemy. As regards a vessel directly hired by the enemy,
there could be no doubt that she was acting in the service of the enemy.
Thus the American vessel _Orozembo_[861] was in 1807, during war between
England and the Netherlands, captured and condemned, because, although
chartered by a merchant in Lisbon ostensibly to sail in ballast to Macao
and to take from there a cargo to America, she received by order of the
charterer three Dutch officers and two Dutch civil servants, and sailed,
not to Macao, but to Batavia. And the American vessel _Friendship_[862]
was likewise in 1807, during war between England and France, captured
and condemned, because she was hired by the French Government to carry
ninety shipwrecked officers and sailors home to a French port.
[Footnote 861: 6 C. Rob. 430.]
[Footnote 862: 6 C. Rob. 420.]
According to British practice hitherto prevailing, a neutral vessel was
considered as carrying persons in the service of the enemy even if she
were, through the application of force, constrained by the enemy to
carry the persons, or if she were in _bona-fide_ ignorance of the status
of her passengers. Thus, in 1802, during war between Great Britain and
France, the Swedish vessel _Carolina_[863] was condemned by Sir William
Scott for having carried French troops from Egypt to Italy, although the
master endeavoured to prove that the vessel was obliged by force to
render the transport service. And the above-mentioned vessel _Orozembo_
was condemned[864] by Sir William Scott, although her master was
ignorant of the service for the enemy on which he was engaged: "... In
cases of _bona-fide_ ignorance there may be no actual delinquency; but
if the service is injurious, that will be sufficient to give the
belligerent a right to prevent the thing from being done or at least
repeated," said Sir William Scott.[865]
[Footnote 863: 4 C. Rob. 256.]
[Footnote 864: See Phillimore, III. § 274, and Holland, _Prize Law_, §§
90-91. Hall, § 249, p. 700, note 2, reprobates the British practice.
During the Russo-Japanese War only one case of condemnation of a neutral
vessel for carrying persons for the enemy is recorded, that of the
_Nigretia_, a vessel which endeavoured to carry into Vladivostock the
escaped captain and lieutenant of the Russian destroyer _Ratzoporni_;
see Takahashi, pp. 639-641.]
[Footnote 865: It should be mentioned that, according to the customary
law hitherto prevailing, the case of diplomatic agents sent by the enemy
to neutral States was an exception to the rule that neutral vessels may
be punished for carrying agents sent by the enemy. The importance of
this exception became apparent in the case of the _Trent_ which occurred
during the American War. On November 8, 1861, the Federal cruiser _San
Jacinto_ stopped the British mail steamer _Trent_ on her voyage from
Havana to the British port of Nassau, in the Bahamas, forcibly took off
Messrs. Mason and Slidell, together with their secretaries, political
agents sent by the Confederate States to Great Britain and France, and
then let the vessel continue her voyage. Great Britain demanded their
immediate release, and the United States at once granted this, although
the ground on which release was granted was not identical with the
ground on which release was demanded. The Government of the United
States maintained that the removal of these men from the vessel without
bringing her before a Prize Court for trial was irregular, and,
therefore, not justified, whereas release was demanded on the ground
that a neutral vessel could not be prevented from carrying diplomatic
agents sent by the enemy to neutrals. Now diplomatic agents in the
proper sense of the term these gentlemen were not, because although they
were sent by the Confederate States, the latter were not recognised as
such, but only as a belligerent Power. Yet these gentlemen were
political agents of a quasi-diplomatic character, and the standpoint of
Great Britain was for this reason perhaps correct. The fact that the
Governments of France, Austria, and Prussia protested through their
diplomatic envoys in Washington shows at least that neutral vessels may
carry unhindered diplomatic agents sent by the enemy to neutrals,
however doubtful it may be whether the same is valid regarding agents
with a quasi-diplomatic character. See _Parliamentary Papers_, 1862,
North America, N. 5; Marquardsen, _Der Trent Fall_ (1862); Wharton, §
374; Moore, VII. § 1265; Phillimore, II. §§ 130-130A; Mountague Bernard,
_Neutrality of Great Britain during the American Civil War_ (1870), pp.
187-205; Harris, _The Trent Affair_ (1896).]
According to the Declaration of London neutral merchantmen may, apart
from the case of the carriage of persons who in the course of the voyage
directly assist the operations of the enemy, only be considered to
render unneutral service by carrying such enemy persons as are actually
already members of the armed forces of the enemy. Article 45 makes it
quite apparent, through using the words "_embodied_ in the armed
forces," that reservists and the like who are on their way to the enemy
country for the purpose of there joining the armed forces, do not belong
to such enemy persons as a neutral vessel may not carry without exposing
herself to punishment for rendering unneutral service to the enemy. And
four different cases of carrying enemy persons must be distinguished
according to the Declaration of London, namely: that of a neutral vessel
exclusively engaged in the transport of enemy troops; that of a vessel
transporting a military detachment of the enemy; that of a vessel
transporting one or more persons who in the course of the voyage
directly assist the operations of the enemy; that of a vessel
transporting, on a voyage specially undertaken, individual members of
the armed forces of the enemy.
(1) According to article 46, No. 4, a neutral vessel exclusively
intended at the time for the transport of enemy troops acquires thereby
enemy character. This case will be considered with others of the same
kind below in § 410.
(2) In case a vessel, although she is not exclusively therefor destined,
and although she is not on a voyage specially undertaken for that
purpose, transports, to the knowledge of either the owner or the
charterer or the master, a military detachment of the enemy, she is,
according to article 45, No. 2, considered to render unneutral service
for which she may be punished. Accordingly, if to the knowledge of
either the owner or the charterer or the master, a neutral vessel _in
the ordinary course of her voyage_ carries a military detachment of the
enemy, she is liable to be seized for unneutral service.
(3) In case a neutral vessel, to the knowledge of either the owner or
the charterer or the master, carries one or more persons--subjects of
one of the belligerents or of a neutral Power--who in the course of the
voyage directly assist the operations of the enemy in any way, for
instance by signalling or sending message by wireless telegraphy, she
is, according to article 45, No. 2, likewise liable to seizure for
rendering unneutral service.
(4) In case a neutral vessel carries individual members of the armed
forces of the enemy, she is, according to article 45, No. 1, then only
liable to seizure if she is on a voyage specially undertaken for such
transport, that means, if she has been turned from her ordinary course
and has touched at a port outside her ordinary course for the purpose of
embarking, or is going to touch at a port outside her ordinary course
for the purpose of disembarking, the enemy persons concerned. A liner,
therefore, carrying individual members of the armed forces of the enemy
in the ordinary course of her voyage may not be considered to be
rendering unneutral service and may not be seized. However, according to
article 47, a neutral vessel carrying members of the armed forces of the
enemy while pursuing her ordinary course, may be stopped for the purpose
of taking off such enemy persons and making them prisoners of war (see
below, § 413).
[Sidenote: Transmission of Intelligence to the Enemy.]
§ 409. Either belligerent may punish neutral merchantmen for
transmission of intelligence to the enemy.
According to customary rules hitherto in force, either belligerent might
punish neutral vessels for the carriage of political despatches from or
to the enemy, and especially for such despatches as were in relation to
the war. But to this rule there were two exceptions. Firstly, on the
ground that neutrals have a right to demand that their intercourse with
either belligerent be not suppressed: a neutral vessel might not,
therefore, be punished for carrying despatches from the enemy to neutral
Governments, and _vice versa_,[866] and, further, despatches from the
enemy Government to its diplomatic agents and consuls abroad in neutral
States, and _vice versa_.[867] Secondly, on account of article 1 of
Convention XI., by which postal correspondence is inviolable, except in
the case of violation of blockade, the correspondence destined for, or
proceeding from, the blockaded port. However, the mere fact that a
neutral vessel had political despatches to or from the enemy on board
did not by itself prove that she was carrying them _for and in the
service of the enemy_. Just as in the case of certain enemy persons on
board, so in the case of despatches, the vessel was only considered to
be carrying them in the service of the enemy if either she knew of their
character and had nevertheless taken them on board, or if she was
directly hired for the purpose of carrying them. Thus, the American
vessel _Rapid_,[868] which was captured in 1810 during the war between
Great Britain and the Netherlands, on her voyage from New York to
Tonningen, for having on board a despatch for a Cabinet Minister of the
Netherlands hidden under a cover addressed to a merchant at Tonningen,
was released by the Prize Court. On the other hand, the _Atalanta_,[869]
which carried despatches in a tea chest hidden in the trunk of a
supercargo, was condemned.[870]
[Footnote 866: The _Caroline_ (1808), 6 C. Rob. 461.]
[Footnote 867: The _Madison_ (1810), Edwards, 224.]
[Footnote 868: Edwards, 228.]
[Footnote 869: 6 C. Rob. 440.]
[Footnote 870: British practice seems unsettled on the question as to
whether the vessel must know of the character of the despatch which she
is carrying. In spite of the case of the _Rapid_, quoted above, Holland,
_Prize Law_, § 100, maintains that ignorance of the master of the vessel
is no excuse, and Phillimore, III. § 272, seems to be of the same
opinion.]
According to the Declaration of London the carriage of despatches for
the enemy may only be punished in case it falls under the category of
transmitting intelligence to the enemy on the part of a neutral vessel.
Two kinds of such transmission of intelligence must be distinguished:--
Firstly, according to article 46, No. 4, a neutral vessel exclusively
intended for the transmission of intelligence to the enemy acquires
thereby enemy character; this will be considered with other cases of the
same kind below in § 410.
Secondly, according to article 45, No. 1, a neutral vessel may be seized
for transmitting intelligence to the enemy if she is on a voyage
specially undertaken for such transmission, that is to say, if she has
been turned from her ordinary course and has touched or is going to
touch at a port outside her ordinary course for the purpose of
transmitting intelligence to the enemy. A liner, therefore, transmitting
intelligence to the enemy in the ordinary course of her voyage may not
be considered to be rendering unneutral service and may not be punished.
However, self-preservation would in a case of necessity justify a
belligerent in temporarily detaining such a liner for the purpose of
preventing the intelligence from reaching the enemy.[871]
[Footnote 871: See below, § 413.]
The conception "transmission of intelligence" is not defined by the
Declaration of London. It certainly means not only oral transmission of
intelligence, but also the transmission of despatches containing
intelligence. The transmission of any political intelligence of value to
the enemy, whether or no the intelligence is in relation to the war,
must be considered unneutral service, the case excepted in which
intelligence is transmitted from the enemy to neutral Governments, and
vice versa, and, further, from the enemy Government to its diplomatic
agents and consuls abroad in neutral States. And it must be emphasised
that, although a vessel may be seized and punished for unneutral
service, according to article 1 of Convention XI. of the Second Hague
Peace Conference the postal correspondence of neutrals or belligerents,
whatever its character, found on board is inviolable.
[Sidenote: Unneutral Service creating Enemy Character.]
§ 410. In contradistinction to cases of unneutral service which are
similar to carriage of contraband, the Declaration of London enumerates
in article 46 four cases of such kinds of unneutral service as vest
neutral vessels with enemy character.[872]
(1) There is, firstly, the case of a neutral merchantman taking a direct
part in the hostilities. This may occur in several ways, but such vessel
in every case loses her neutral and acquires enemy character, just as a
subject of a neutral Power who enlists in the ranks of the enemy armed
forces. But a distinction must be made between taking a direct part in
the hostilities, for instance rendering assistance to the enemy fleet
during battle, on the one hand, and, on the other, acts of a piratical
character. If a neutral merchantman--see above, §§ 85, 181, and
254--without Letters of Marque during war and from hatred of one of the
belligerents, were to attack and sink merchantmen of such belligerent,
she would have to be considered, and could therefore be treated as, a
pirate.
(2) There is, secondly, the case of a neutral vessel which sails under
the orders or the control of an agent placed on board by the enemy
Government. The presence of such agent, and the fact that the vessel
sails under his orders or control shows clearly that she is really for
all practical purposes part and parcel of the enemy forces.
(3) There is, thirdly, the case of a neutral vessel in the exclusive
employment of the enemy. This may occur in two different ways: either
the vessel may be rendering a specific service in the exclusive
employment of the enemy, as, for instance, did those German merchantmen
during the Russo-Japanese War which acted as colliers for the Russian
fleet _en route_ for the Far East; or the vessel may be chartered by the
enemy so that she is entirely at his disposal for any purpose he may
choose, whether such purpose is or is not connected with the war.[873]
(4) There is, fourthly and lastly, the case of a neutral merchantman
exclusively intended at the time either for the transport of enemy
troops or for the transmission of intelligence for the enemy. This case
is different from the case--provided for by article 45, No. 1--of a
vessel on a voyage specially undertaken with a view to the carriage of
individual members of the armed forces of the enemy. Whereas the latter
is a case of unneutral service rendered by a vessel which turns from her
course for the purpose of rendering specific service, the former is a
case in which the vessel is exclusively and for the time being
permanently intended and devoted to the rendering of unneutral service.
For the time being she is, therefore, actually part and parcel of the
enemy marine. For this reason she is considered to be rendering
unneutral service, and to have lost her neutral character, even if, at
the moment an enemy cruiser searches her, she is engaged neither in the
transport of troops nor in the transmission of intelligence. The fact is
decisive that she is for the time being exclusively intended for such
unneutral service, whether or no she is at every moment really engaged
in rendering such service. And it makes no difference, whether the
vessel is engaged by the enemy and paid for the transport of troops or
the transmission of intelligence, or whether she renders the
service[874] gratuitously.
[Footnote 872: See above, § 89 (1), p. 113.]
[Footnote 873: Two cases of interest occurred in 1905, during the
Russo-Japanese War. The _Industrie_, a German vessel, and the
_Quang-nam_, a French vessel, were captured and condemned by the
Japanese for being in the employ of Russia as reconnoitring vessels,
although the former pretended to collect news in the service of the
Chefoo _Daily News_, and the latter pretended to be a cargo vessel
plying between neutral ports. See Takahashi, pp. 732 and 735.]
[Footnote 874: As regards the meaning of the term transmission of
intelligence, see above, § 409.]
II
CONSEQUENCES OF UNNEUTRAL SERVICE
See the literature quoted above at the commencement of § 407.
[Sidenote: Capture for Unneutral Service.]
§ 411. According to customary rules hitherto prevailing, as well as
according to the Declaration of London, a neutral vessel may be captured
if visit or search establish the fact, or grave suspicion of the fact,
that she is rendering unneutral service to the enemy. And such capture
may take place anywhere throughout the range of the Open Sea and the
territorial maritime belt of either belligerent.
Stress must be laid on the fact that mail steamers are on principle not
exempt from capture for unneutral service. Although, according to
article 1 of Convention XI., the postal correspondence of belligerents
as well as of neutrals, whatever its official or private character,
found on board a vessel on the sea is inviolable,[875] and a vessel may
never, therefore, be considered to be rendering unneutral service by
carrying amongst her postal correspondence despatches containing
intelligence for the enemy, a mail steamer is nevertheless--see article
2 of Convention XI.--not exempt from the laws and customs of naval war
respecting neutral merchantmen. A mail boat is, therefore, quite as much
as any other merchantman, exposed to capture for rendering unneutral
service.
[Footnote 875: See above, §§ 191 and 319.]
However this may be, capture is allowed only so long as the vessel is
_in delicto_, that is during the time in which she is rendering the
unneutral service concerned or immediately afterwards while she is being
chased for having rendered unneutral service. A neutral vessel may not,
therefore, be captured after the completion of a voyage specially
undertaken for the purpose of transporting members of the armed forces
of the enemy, or of transmitting intelligence for the enemy, or after
having disembarked the military detachment of the enemy and the persons
directly assisting the operations of the enemy in the course of the
voyage whom she was transporting. And it must be specially emphasised
that even such neutral vessel as had acquired--see article 46 of the
Declaration of London--enemy character by rendering unneutral service,
ceases to be _in delicto_ after her unneutral service has come to an
end. Thus, for instance, a neutral vessel which took a direct part in
hostilities[876] may not afterwards be captured, nor may a vessel which
has disembarked the agent of the enemy Government under whose orders or
control she was navigating.
[Footnote 876: Provided she did not--see above, § 410 (1)--commit acts
of a piratical character; for such acts she may always be punished.]
[Sidenote: Penalty for Unneutral Service.]
§ 412. According to the practice hitherto prevailing, a neutral vessel
captured for carriage of persons or despatches in the service of the
enemy could be confiscated. Moreover, according to British[877]
practice, such part of the cargo as belonged to the owner of the vessel
was likewise confiscated.[878] And if the vessel was not found guilty of
carrying persons or despatches in the service of the enemy, and was not
therefore condemned, the Government of the captor could nevertheless
detain the persons as prisoners of war and confiscate the despatches,
provided the persons and despatches concerned were in any way of such a
character as to make a vessel, which was cognisant of this character,
liable to punishment for transporting them for the enemy.
[Footnote 877: The _Friendship_ (1807), 6 C. Rob. 420; the _Atalanta_
(1808), 6 C. Rob. 440. See Holland, _Prize Law_, §§ 95 and 105.]
[Footnote 878: See, however, the _Hope_ (1808), 6 C. Rob. 463, note.]
The Declaration of London recognises these three rules. Articles 45 and
46 declare any vessel rendering any kind of unneutral service to the
enemy liable to confiscation, and likewise declare such part of the
cargo as belongs to the owner of the confiscated vessel liable to
confiscation. And article 47 enacts that, although a neutral vessel may
not be condemned because there are no grounds for her capture, the
capturing State may nevertheless detain as prisoners of war any members
of the armed forces of the enemy who were found on board the vessel. The
case of despatches found on board is not mentioned by article 47, but
there ought to be no doubt--see below, § 413--that the old customary
rule that, although the vessel may not be condemned because there is no
ground for capture, any despatches for the enemy found on board may, in
analogy with article 47, be confiscated, provided such despatches are
not part of the postal correspondence carried on board.
It must be emphasised that the mere fact that a neutral vessel is
rendering unneutral service, is not sufficient for her condemnation; for
in addition _mens rea_ is required. Now as regards the four kinds of
unneutral service which create enemy character, _mens rea_ is obviously
always in existence, and therefore always presumed to be present. For
this reason article 46, in contradistinction to article 45, does not
mention anything concerning the knowledge by the vessel of the outbreak
of hostilities. But as regards the other cases of unneutral service,
article 45 provides that the vessel may not be confiscated if the vessel
is encountered at sea while unaware of the outbreak of hostilities, or
if the master, after becoming aware of the outbreak of hostilities, has
had no opportunity of disembarking the passengers concerned. On the
other hand, a vessel is deemed, according to article 45, to be aware of
the existence of a state of war if she left an enemy port subsequent to
the outbreak of hostilities, or a neutral port subsequent to the
notification of the outbreak of hostilities to the Power to which such
port belongs, provided that such notification was made in sufficient
time.
Although the Declaration of London metes out the same punishment for the
several kinds of unneutral service which it enumerates, it nevertheless
makes a distinction, apart from the penalty, with regard to the
treatment of the vessels captured for rendering unneutral service.
Article 45 provides for a neutral vessel captured for having rendered
either of the two kinds of unneutral service mentioned in this article a
treatment which is, in a general way, the same as that for a neutral
vessel captured for the carriage of contraband. This means that the
vessel does not lose her neutral character, and must under all
circumstances and conditions be taken before a Prize Court, unless--see
article 49 of the Declaration of London--the taking of her into a port
of the capturing State would involve danger to the safety of the
capturing vessel or to the success of the military operations in which
she is engaged at the time. And an appeal from the national Prize Courts
may be brought to the International Prize Court.
Article 46, on the other hand, provides, apart from the penalty, a
treatment for a vessel captured for having rendered any of the four
kinds of unneutral service enumerated in this article which, in a
general way, is the same as that for a captured enemy merchantman. This
means that such vessel acquires enemy character. Accordingly (see above,
§ 89) all enemy goods on the vessel may be seized, all goods on board
will be presumed to be enemy goods, and the owners of neutral goods on
board will have to prove the neutral character of their goods. Further,
the rules of articles 48 and 49 of the Declaration of London concerning
the destruction of neutral vessels do not apply. Again, no appeal may be
brought from the national Prize Courts to the International Prize Court
by the owner of the ship except concerning the one question only,
namely, whether the act of which she is accused has the character of
unneutral service.[879]
[Footnote 879: The question as to whether, if the vessel has been
destroyed by the captor, the innocent owners of the neutral goods on
board may claim compensation, has to be decided in the same way as the
question as to whether the owners of neutral goods on a destroyed enemy
merchantman have a claim to compensation; see above, § 194.]
[Sidenote: Seizure of Enemy Persons and Despatches without Seizure of
Vessel.]
§ 413. According to the British[880] and American practice, as well as
that of some other States, which has hitherto prevailed, whenever a
neutral vessel was stopped for carrying persons or despatches for the
enemy, these could not be seized unless the vessel were seized at the
same time. The release, in 1861, during the American Civil War, of
Messrs. Mason[881] and Slidell, who had been forcibly taken off the
_Trent_, while the ship herself was allowed to continue her voyage, was
based, by the United States, on the fact that the seizure of these men
without the seizure of the vessel was illegal. Since, according to the
Declaration of London, a neutral vessel rendering unneutral service of
any kind is liable to be confiscated, it is evident that in such a case
the enemy persons and despatches concerned may not be taken off the
vessel unless the vessel herself is seized and brought into a port of a
Prize Court. However, article 47 provides that any member of the armed
forces of the enemy found on board a neutral merchant vessel may be
taken off and made a prisoner of war, although there may be no ground
for the capture of the vessel. Therefore, if a vessel carries individual
members of the armed forces of the enemy in the ordinary course of her
voyage,[882] or if she transports a military detachment of the enemy and
the like without being aware of the outbreak of hostilities, the members
of the armed forces of the enemy on board may be seized, although the
vessel herself may not be seized, as she is not rendering unneutral
service.
[Footnote 880: See Holland, _Prize Law_, § 104.]
[Footnote 881: See above, § 408, p. 519, note 3.]
[Footnote 882: Accordingly, in January 1912, during the Turco-Italian
War, the Italian gunboat _Volturno_, after having overhauled, in the Red
Sea, the British steamer _Africa_ going from Hodeida to Aden, took off
and made prisoners of war Colonel Riza Bey and eleven other Turkish
officers. Although the Declaration of London is not yet ratified by
Great Britain, she did not protest. The case of the _Manouba_ ought
likewise to be mentioned here. This French steamer, which plies between
Marseilles and Tunis, was stopped on January 16, 1912, by an Italian
cruiser in the Mediterranean, and twenty-nine Turkish passengers, who
were supposed to be Turkish officers on their way to the theatre of war,
were forcibly taken off and made prisoners. On the protest of France,
the captives were handed over to her in order to ascertain whether they
were members of the Turkish forces, and it was agreed between the
parties that the case should be settled by an arbitral award of the
Permanent Court of Arbitration at the Hague, Italy asserting that she
had only acted in accordance with article 47 of the Declaration of
London.]
The Declaration of London does not mention the case of enemy despatches
embodying intelligence found on board such a neutral vessel as may not
herself be captured for such carriage. For instance, in the case of a
mail steamer pursuing her ordinary course and carrying a despatch of the
enemy not in her mail bags but separately, the vessel may not, according
to article 45, be seized. In this, and similar cases, may despatches be
seized without the seizure of the vessel? It has been pointed out above,
§ 409, that, in a case of necessity, self-preservation would justify a
belligerent in temporarily detaining such a liner for the purpose of
preventing the intelligence from reaching the enemy. This certainly fits
the case of a vessel transmitting oral intelligence. But if a vessel
carried despatches, the necessity of detaining her ceases through
seizure of the despatches themselves. The question--see above, §
412--as to whether in such cases the despatches may be seized without
seizure of the vessel ought, therefore, in analogy with article 47 of
the Declaration of London, to be answered in the affirmative.
Quite different from the case of seizure of such enemy persons and
despatches as a vessel cannot carry without exposing herself to
punishment, is the case[883] where a vessel has such enemy persons and
despatches on board as she is allowed to carry, but whom a belligerent
believes it to be necessary in the interest of self-preservation to
seize. Since necessity in the interest of self-preservation is,
according to International Law, an excuse[884] for an illegal act, a
belligerent may seize such persons and despatches, provided that such
seizure is not merely desirable, but absolutely necessary[885] in the
interest of self-preservation, as, for instance, in the case where an
Ambassador of the enemy on board a neutral vessel is on the way to
submit to a neutral a draft treaty of alliance injurious to the other
belligerent.
[Footnote 883: See Hall, § 253; Rivier, II. p. 390.]
[Footnote 884: See above, vol. I. § 129.]
[Footnote 885: See above, vol. I. § 130.]