VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS
I
VISITATION
Bynkershoek, _Quaest. jur. pub._ I. c. 14--Vattel, III. §
114--Hall, §§ 270-276--Manning, pp. 433-460--Phillimore, III. §§
322-344--Twiss, II. §§ 91-97--Halleck, II. pp. 255-271--Taylor, §§
685-689--Wharton, III. §§ 325 and 346--Wheaton, §§ 524-537--Moore,
VII. §§ 1199-1205--Bluntschli, §§ 819-826--Heffter, §§
167-171--Geffcken in Holtzendorff, IV. pp. 773-781--Klüber, §§
293-294--G. F. Martens, II. §§ 317 and 321--Ullmann, §
196--Bonfils, Nos. 1674-1691--Despagnet, Nos. 717-721--Rivier, II.
pp. 423-426--Nys, III. pp. 682-692--Calvo, V. §§ 2939-2991--Fiore,
III. Nos. 1630-1641, and Code, Nos. 1853-1877--Martens, II. §
137--Kleen, II. §§ 185-199, 209--Gessner, pp. 278-332--Boeck, Nos.
767-769--Dupuis, Nos. 239-252, and _Guerre_, Nos.
189-204--Bernsten, § 11--Nippold, II. § 35--Perels, §§
52-55--Testa, pp. 230-242--Ortolan, II. pp. 214-245--Hautefeuille,
III. pp. 1-299--Holland, _Prize Law_, §§ 1-17, 155-230--U.S. Naval
War Code, articles 30-33--Schlegel, _Sur la visite des vaisseaux
neutres sous convoi_ (1800)--Mirbach, _Die völkerrechtlichen
Grundsätze des Durchsuchungsrechts zur See_ (1903)--Loewenthal,
_Das Untersuchungsrecht des internationalen Seerechts im Krieg und
Frieden_ (1905)--Atherley-Jones, _Commerce in War_ (1906), pp.
299-360--Hirschmann, _Das internationale Prisenrecht_ (1912), §§
33-34--Duboc in _R.G._ IV. (1897), pp 382-403--See also the
monographs quoted above at the commencement of § 391, Bulmerincq's
articles on _Le droit des prises maritimes_ in _R.I._ X-XIII.
(1878-1881), and the General Report presented to the Naval
Conference of London on behalf of the Drafting Committee, article
63.
[Sidenote: Conception of Right of Visitation.]
§ 414. Right of visitation[886] is the right of belligerents to visit
and eventually search neutral merchantmen for the purpose of
ascertaining whether these vessels really belong to the merchant marine
of neutrals, and, if this is found to be the case, whether they are
attempting to break a blockade, or carry contraband, or render unneutral
service to the enemy. The right of visit and search was already
mentioned in the _Consolato del Mare_, and although it has often[887]
been contested, its _raison d'être_ is so obvious that it has long been
universally recognised in practice. It is indeed the only means by which
belligerents are able to ascertain whether neutral merchantmen intend to
bring assistance to the enemy and to render him unneutral services.[888]
[Footnote 886: It must be borne in mind that this right of visitation is
not an independent right but is involved in the right of either
belligerent--see above, § 314--to punish neutral vessels breaking
blockade, carrying contraband, and rendering unneutral service.]
[Footnote 887: See, for instance, Hübner, _De la saisie des bâtiments
neutres_ (1759), I. p. 227.]
[Footnote 888: Attention should be drawn to the _Règlement international
des prises maritimes_, adopted at Heidelberg in 1887 by the Institute of
International Law; §§ 1-29 regulate visit and search. See _Annuaire_,
IX. (1888), p. 202.]
[Sidenote: Right of Visitation, by whom, when, and where exercised.]
§ 415. The right of visit and search may be exercised by all
warships[889] of belligerents. But since it is a belligerent right, it
may, of course, only be exercised after the outbreak and before the end
of war. The right of visitation on the part of men-of-war of all nations
in time of peace in a case of suspicion of piracy--see above, vol. I. §
266 (2)--has nothing to do with the right of visit and search on the
part of belligerents. And since an armistice does not bring war to an
end, and since, on the other hand, the exercise of the right of
visitation is not an act of warfare, this right may be exercised during
the time of a partial as well as of a general armistice.[890] The region
where the right may be exercised is the maritime territorial belt of
either belligerent, and, further, the Open Sea, but not the maritime
territorial belt of neutrals. Whether the part of the Open Sea in which
a belligerent man-of-war meets with a neutral merchantman is near or far
away from that part of the world where hostilities are actually taking
place makes no difference so long as there is suspicion against the
vessel. The question as to whether the men-of-war of a belligerent may
exercise the right of visitation in the maritime territorial belt of an
ally is one between the latter and the belligerent exclusively, provided
such an ally is already a belligerent.
[Footnote 889: It should be mentioned that privateers could also
exercise the right of visit and search. But since even such States as
have not acceded to the Declaration of Paris in practice no longer issue
Letters of Marque, such a case will no longer occur.]
[Footnote 890: But this is not universally recognised. Thus,
Hautefeuille, III. p. 91, maintains that during a general armistice the
right of visitation may not be exercised, and § 5 of the _Règlement
international des prises maritimes_ of the Institute of International
Law takes up the same attitude. It ought, likewise, to be mentioned that
in strict law the right of visit and search may be exercised even after
the conclusion of peace before the treaty of peace is ratified. But the
above-mentioned § 5 of the _Règlement international des prises
maritimes_ declares this right to cease "avec les préliminaires de la
paix." See below, § 436.]
[Sidenote: Only Private Vessels may be Visited.]
§ 416. During the nineteenth century it became universally recognised
that neutral men-of-war are not objects of the right of visit and search
of belligerents.[891] And the same is valid regarding public neutral
vessels which sail in the service of armed forces, such as transport
vessels, for instance. Doubt exists as to the position of public neutral
vessels which do not sail in the service of armed forces, but sail for
other purposes, as, for instance, mail-boats belonging to a neutral
State. It is asserted[892] that, if commanded by an officer of the Navy,
they must be treated in the same way as men-of-war, but that it is
desirable to ask the commanders to give their word of honour assuring
the absence of contraband and unneutral service.
[Footnote 891: In former times Great Britain tried to extend visitation
to neutral men-of-war. See Manning, p. 455.]
[Footnote 892: See, for instance, Gessner, p. 297, and Perels, § 52,
IV.]
[Sidenote: Vessels under Convoy.]
§ 417. Sweden in 1653, during war between Great Britain and the
Netherlands, claimed that the belligerents ought to waive their right of
visitation over Swedish merchantmen if the latter sailed under the
convoy of a Swedish man-of-war whose commander asserted the absence of
contraband on board the convoyed vessels. The Peace of Westminster in
1654 brought this war to an end, and in 1756 the Netherlands, then
neutral, claimed the right of convoy. But it was not until the last
quarter of the eighteenth century that the right of convoy was more and
more insisted upon by Continental neutrals. During the American War of
Independence in 1780, the Netherlands again claimed that right, and when
they themselves in 1781 waged war against Great Britain, they ordered
their men-of-war and privateers to respect the right of convoy. Between
1780 and 1800 treaties were concluded, in which Russia, Austria,
Prussia, Denmark, Sweden, France, the United States of America, and
other States recognised that right. But Great Britain always refused to
recognise it, and in July 1800 the action of a British squadron in
capturing a Danish man-of-war and her convoy of six merchantmen for
resistance to visitation called the Second Armed Neutrality into
existence. Yet Great Britain still resisted, and by article 4 of the
"Maritime Convention" of St. Petersburg of June 17, 1801, she conceded
to Russia only that vessels under convoy should not be visited by
privateers. During the nineteenth century more and more treaties
stipulating the right of convoy were concluded, but this right was not
mentioned in the Declaration of Paris of 1856, and Great Britain refused
to recognise it throughout the century. However, Great Britain abandoned
her opposition at the Naval Conference of London of 1908-9, and the
Declaration of London proposes to settle the matter by articles 61 and
62 in the following way:--
Neutral vessels under the convoy of a man-of-war flying the same flag
are exempt from search and may not be visited if the commander of the
convoy, at the request of the commander of the belligerent cruiser which
desires to visit, gives, in writing, all information as to the character
of the convoyed vessels and their cargoes which could be obtained by
search. Should the commander of the belligerent man-of-war have reason
to suspect that the confidence of the commander of the convoy has been
abused, he may not himself resort to visit and search, but must
communicate with the commander of the convoy. The latter must
investigate the matter, and must record the result of his investigation
in a report, a copy of which must be given to the commander of the
belligerent cruiser. Should, in the opinion of the commander of the
convoy, the facts stated in the report justify the capture of one or
more of the convoyed vessels, he must withdraw protection from the
offending vessels, and the belligerent cruiser may then capture them.
In case a difference of opinion arises between the commander of the
convoy and the commander of the belligerent cruiser--for instance, with
regard to the question as to whether certain goods are absolute or
conditional contraband or as to whether the port of destination of a
convoyed vessel is an ordinary commercial port or a port which serves as
a base of supply for the armed forces of the enemy and the like--the
commander of the belligerent cruiser has no power of overruling the
decision of the commander of the convoy. He can only protest and report
the case to his Government, which will settle the matter by means of
diplomacy.
[Sidenote: No Universal Rules regarding Mode of Visitation.]
§ 418. There are no rules of International Law which lay down all the
details of the formalities of the mode of visitation. A great many
treaties regulate them as between the parties, and all maritime nations
have given instructions to their men-of-war regarding these formalities.
Thereby uniform formalities are practised with regard to many points,
but regarding others the practice of the several States differs. Article
17 of the Peace Treaty of the Pyrenees of 1659 has served as a model of
many of the above-mentioned treaties regulating the formalities of
visitation: "Les navires d'Espagne, pour éviter tout désordre,
n'approcheront pas de plus près les Français que la portée du canon, et
pourront envoyer leur petite barque ou chaloupe à bord des navires
français et faire entrer dedans deux ou trois hommes seulement, à qui
seront montrés les passeports par le maître du navire français, par
lesquels il puisse apparoir, non seulement de la charge, mais aussi du
lieu de sa demeure et résidence, et du nom tant du maître ou patron que
du navire même, afin que, par ces deux moyens, on puisse connaître, s'il
porte des marchandises de contrebande; et qu'il apparaisse suffisamment
tant de la qualité du dit navire que de son maître ou patron; auxquelles
passeports on devra donner entière foi et créance."
[Sidenote: Stopping of Vessels for the Purpose of Visitation.]
§ 419. A man-of-war which wishes to visit a neutral vessel must stop her
or make her bring to. Although the chasing of vessels may take place
under false colours, the right colours must be shown when vessels are
stopped.[893] The order for stopping can be given[894] by hailing or by
firing one or two blank cartridges from the so-called affirming gun,
and, if necessary, by firing a shot across the bows of the vessel. If
nevertheless the vessel does not bring to, the man-of-war is justified
in using force to compel her to bring to. Once the vessel has been
brought to, the man-of-war also brings to, keeping a reasonable
distance. With regard to this distance, treaties very often stipulate
either the range of a cannon shot or half such width or even a range
beyond a cannon shot; but all this is totally impracticable.[895] The
distance must vary according to the requirements of the case, and
according to wind and weather.
[Footnote 893: See above, § 211.]
[Footnote 894: See above, vol. I. § 268.]
[Footnote 895: See Ortolan, II. p. 220, and Perels, § 53, pp. 284, 285.]
[Sidenote: Visit.]
§ 420. The vessel, having been stopped or brought to, is visited[896] by
one or two officers sent in a boat from the man-of-war. These officers
examine the papers of the vessel to ascertain her nationality, the
character of her cargo and passengers, and, lastly, the ports from and
to which she is sailing. Instead of visiting the merchantman and
inspecting her papers on board, the practice is followed, by the
men-of-war of some States, of summoning the master of the merchantman
with his papers on board the former and examining the papers there.
[Footnote 896: See above, vol. I. § 268, and Holland, _Prize Law_, §§
195-216.]
If everything is found in order and there is no suspicion of fraud, the
vessel is allowed to continue her course, a memorandum of the visit
having been entered in her log-book. On the other hand, if the
inspection of the papers shows that the vessel is carrying contraband or
rendering unneutral service, or that she is for another reason liable to
capture, she is at once seized. But it may be that, although ostensibly
everything is in order, there is nevertheless grave suspicion of fraud
against the vessel. In such case she may be searched.
[Sidenote: Search.]
§ 421. Search is effected[897] by one or two officers, and eventually a
few men, in presence of the master of the vessel. Care must be taken not
to damage the vessel or the cargo, and no force whatever must be
applied. No lock must be forcibly broken open by the search party, but
the master is to be required to unlock it. If he fails to comply with
the demand he is not to be forced thereto, since the master's refusal to
assist the search in general, or that of a locked part of the vessel or
of a locked box in particular, is at once sufficient cause for seizing
the vessel. Search being completed, everything removed has to be
replaced with care. If the search has satisfied the searching officers
and dispelled all suspicion, a memorandum is entered in the log-book of
the vessel, and she is allowed to continue her voyage. On the other
hand, if search brought contraband or another cause for capture to
light, the vessel is seized. But since search can never take place so
thoroughly on the sea as in a harbour, it may be that, although search
has disclosed no proof to bear out the suspicion, grave suspicion still
remains. In such case she may be seized and brought into a port for the
purpose of being searched there as thoroughly as possible. But the
commander of a man-of-war seizing a vessel in such case must bear in
mind that full indemnities must be paid to the vessel for loss of time
and other losses sustained if finally she is found innocent. Therefore,
after a search at sea has brought nothing to light against the vessel,
seizure should take place only in case of grave suspicion.
[Footnote 897: See above, vol. I. § 269, and Holland, _Prize Law_, §§
217-230.]
[Sidenote: Consequences of Resistance to Visitation.]
§ 422. If a neutral merchantman resists visit or search, she is at once
captured, and may be confiscated. The question as to whether the vessel
only, or also her cargo, could be confiscated for resistance has
hitherto been controversial. According to British[898] and American
theory and practice, the cargo as well as the vessel was liable to
confiscation. But Continental[899] writers emphatically argued against
this and maintained that the vessel only was liable to confiscation.
[Footnote 898: The _Maria_ (1799), 1 C. Rob. 340.]
[Footnote 899: See Gessner, pp. 318-321.]
According to article 63 of the Declaration of London, resistance to the
legitimate exercise of the right of visit, search, and capture involves
in all cases the confiscation of the vessel, which by her forcible
resistance has acquired enemy character (see above, § 89). For this
reason such goods on board as belong to the master or owner of the
vessel are treated as enemy goods and may be confiscated. Enemy goods on
board may now likewise be confiscated, although when they were first
shipped the vessel bore neutral character. Further, all goods on board
are now presumed to be enemy goods, and the owners of neutral goods on
board will have to prove the neutral character of their goods. Lastly,
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, as to whether there was justification for
capturing her on the grounds of forcible resistance.
It must be emphasised that visit and search do not take place after a
vessel has been captured for resistance, for the mere fact of resisting
has imposed enemy character upon her, and the question is now irrelevant
whether visit and search would show her to be guilty or innocent.
[Sidenote: What constitutes Resistance.]
§ 423. According to the practice hitherto prevailing,[900] and also
according to the Declaration of London, a mere attempt on the part of a
neutral merchantman to escape visitation does not in itself constitute
resistance. Such vessel may be chased and compelled by force to bring
to, and she cannot complain if, in the endeavour forcibly to compel her
to bring to, she is damaged or accidentally sunk. If, after the vessel
has been compelled to bring to, visit and search show her to be
innocent, she must be allowed to proceed on her course.
[Footnote 900: The _Maria_ (1799), 1 C. Rob. 340.]
Resistance to be penal must be _forcible_ resistance. It constitutes
resistance, therefore, if a vessel applies force in resisting any
legitimate action by the belligerent cruiser which requires her to stop
and to be visited and searched. The term _forcible resistance_ is not
defined in detail by article 63 of the Declaration of London. It is,
consequently, not certain whether the actual application of force only,
or also the refusal, on the part of the master, to show the ship papers
or to open locked parts of the vessel or locked boxes, and similar acts,
constitutes forcible resistance. The International Prize Court, if
established, would have to develop a practice which would decide these
points.
[Sidenote: Sailing under Enemy Convoy equivalent to Resistance.]
§ 424. Wheaton excepted, all writers would seem to agree that the fact
of neutral merchantmen sailing under a convoy of enemy men-of-war is
equivalent to forcible resistance on their part, whether they themselves
intend to resist by force or not. But the Government of the United
States of America in 1810 contested this principle. In that year, during
war between Great Britain and Denmark, many American vessels sailing
from Russia used to seek protection under the convoy of British
men-of-war, whereupon Denmark declared all such American vessels to be
good and lawful prizes. Several were captured without making any
resistance whatever, and were condemned by Danish Prize Courts. The
United States protested, and claimed indemnities from Denmark, and in
1830 a treaty between the parties was signed at Copenhagen,[901]
according to which Denmark had to pay 650,000 dollars as indemnity. But
in article 5 of this treaty the parties "expressly declare that the
present convention is only applicable to the cases therein mentioned,
and, having no other object, may never hereafter be invoked by one party
or the other as a precedent or a rule for the future."[902]
[Footnote 901: Martens, _N.R._ VIII. p. 350.]
[Footnote 902: See Wheaton, §§ 530-537, and Taylor, § 693, p. 790.
Wheaton was the negotiator of this treaty on the part of the United
States.--With the case of neutral merchantmen sailing under enemy
convoy, the other case--see above, § 185--in which neutral goods are
placed on board an armed enemy vessel is frequently confused. In the
case of the _Fanny_ (1814), 1 Dodson, 443, Sir William Scott condemned
neutral Portuguese property on the ground that placing neutral property
on board an armed vessel was equal to resistance against visitation. But
the Supreme Court of the United States of America, in the of the
_Nereide_ (1815), 9 Cranch, 388, held the contrary view. The Court was
composed of four judges, of whom Story was one, and the latter dissented
from the majority and considered the British practice correct. See
Phillimore, III. § 341, and Wheaton, § 529.]
Article 63 of the Declaration of London does not--as was pointed out
above in § 423--define the term forcible resistance, but it is to be
expected that the practice of the International Prize Court would
consider the sailing under enemy convoy equivalent to forcible
resistance.
[Sidenote: Resistance by Neutral Convoy.]
§ 425. Since Great Britain did not, before agreeing to the Declaration
of London, recognise the right of convoy and had always insisted upon
the right of visitation to be exercised over neutral merchantmen sailing
under the convoy of neutral men-of-war, the question has arisen as to
whether such merchantmen are considered resisting visitation in case the
convoying men-of-war only, and not the convoyed vessels themselves,
offer resistance. British practice has answered the question in the
affirmative. The rule was laid down in 1799[903] and in 1804[904] by Sir
William Scott in the cases of Swedish vessels captured while sailing
under the convoy of a Swedish man-of-war.
[Footnote 903: The _Maria_, 1 C. Rob. 340.]
[Footnote 904: The _Elsebe_, 5 C Rob. 173.]
Since Great Britain--see above, § 417--has abandoned her opposition to
the right of convoy and has agreed to articles 61 and 62 of the
Declaration of London which lay down rules concerning the matter, the
resistance by a neutral convoy to visitation may not, under ordinary
circumstances, be considered to be resistance on the part of the
convoyed neutral merchantman. If, however, the commander of a convoy,
after having refused to give the written information mentioned in
article 61 or to allow the investigation mentioned in article 62,
forcibly resists visitation of the convoyed merchantmen by a belligerent
cruiser, the question as to whether resistance by a convoy is equivalent
to resistance by a convoyed vessel, may even under the Declaration of
London arise.
[Sidenote: Deficiency of Papers.]
§ 426. Since the purpose of visit is to ascertain the nationality of a
vessel, the character of her cargo and passengers, and the ports from
and to which she is sailing, it is obvious that this purpose cannot be
realised in case the visited vessel is deficient in her papers. As
stated above in Vol. I. § 262, every merchantman ought to carry the
following papers: (1) A certificate of registry or a sea-letter
(passport); (2) the muster-roll; (3) the log-book; (4) the manifest of
cargo; (5) bills of lading, and (6) if chartered, the charter-party.
Now, if a vessel is visited and cannot produce one or more of the papers
mentioned, she is suspect. Search is, of course, admissible for the
purpose of verifying the suspicion, but it may be that, although search
has not produced any proof of guilt, the suspicion is not dispelled. In
such case she may be seized and brought to a port for thorough
examination. But, with the exception of the case that she cannot produce
either certificate of registry or a sea-letter (passport), she ought not
to be confiscated for deficiency in papers only. Yet, if the cargo is
also suspect, or if there are other circumstances which increase the
suspicion, confiscation would be, I believe, in the discretion of the
Prize Court.
The Declaration of London does not mention the point, and the
International Prize Court would, therefore, have to evolve a system of
rules to be applied in cases concerned.
[Sidenote: Spoliation, Defacement, and Concealment of Papers.]
§ 427. Mere deficiency of papers does not arouse the same suspicion
which a vessel incurs if she destroys[905] or throws overboard any of
her papers, defaces them or conceals them, and in especial in case the
spoliation of papers takes place at the time when the visiting vessel
comes in sight. Whatever her cargo may be, a vessel may at once be
seized without further search so soon as it becomes apparent that
spoliation, defacement, or concealment of papers has taken place. The
practice of the several States has hitherto differed with regard to
other consequences of spoliation, and the like, of papers, but
confiscation is certainly admissible in case other circumstances
increase the suspicion.[906]
[Footnote 905: The _Hunter_ (1815), 1 Dodson, 480.]
[Footnote 906: See the case of the _Apollo_ in Calvo, V. § 2989.]
The Declaration of London does not mention the case of spoliation of
papers, and it would therefore be the task of the International Prize
Court to evolve a uniform practice concerning the subject.
[Sidenote: Double and False Papers.]
§ 428. The highest suspicion is aroused through the fact that a visited
vessel carries double papers, or false[907] papers, and such vessel may
certainly be seized. But the practice of the several States has hitherto
differed with regard to the question whether confiscation is admissible
for the mere fact of carrying double or false papers. Whereas the
practice of some States, as Russia and Spain, answered the question in
the affirmative, British[908] and American[909] practice took a more
lenient view, and condemned such vessels only on a clear inference that
the false or double papers were carried for the purpose of deceiving the
belligerent by whom the capture was made, but not in other cases.[910]
[Footnote 907: The _Sarah_ (1801), 3 C. Rob. 330.]
[Footnote 908: The _Eliza and Katy_ (1805), 6 C. Rob. 192.]
[Footnote 909: The _St. Nicholas_ (1816), 1 Wheaton, 417.]
[Footnote 910: See Halleck, II. p. 271; Hall, § 276; Taylor, § 690.]
Since the Declaration of London does not mention the case of double or
false papers, it would likewise be the task of the International Prize
Court to evolve a uniform practice.
II
CAPTURE
Hall, § 277--Lawrence, § 191--Phillimore, III. §§ 361-364--Twiss,
II. §§ 166-184--Halleck, II. pp. 362-391--Taylor, § 691--Moore,
VII. §§ 1206-1214--Bluntschli, § 860--Heffter, §§ 171, 191,
192--Geffcken in Holtzendorff, IV. pp. 777-780--Ullmann, §
196--Rivier, II. pp. 426-428--Nys, III. pp. 697-709--Calvo, V. §§
3004-3034--Fiore, III. Nos. 1644-1657, and Code, Nos.
1878-1889--Martens, II. §§ 126-137--Kleen, II. §§
203-218--Gessner, pp. 333-356--Boeck, Nos. 770-777--Dupuis, Nos.
253-281, and _Guerre_, Nos. 205-217--Bernsten, § 11--Nippold, II.
§ 35--Perels, § 55--Testa, pp. 243-244--Hautefeuille, III. pp.
214-299--Holland, _Prize Law_, §§ 231-314--U.S. Naval War Code,
articles 46-50--Atherley-Jones, _Commerce in War_ (1906), pp.
361-646--Hirschmann, _Das internationale Prisenrecht_ (1912), §§
35-37--See also the monographs quoted above at the commencement of
§ 391, Bulmerincq's articles on _Le droit des prises maritimes_ in
_R.I._ X-XIII. (1878-1881), and the General Report presented to
the Naval Conference of London on behalf of its Drafting
Committee, articles 48-54.
[Sidenote: Grounds and Mode of Capture.]
§ 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]
[Footnote 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.]
[Sidenote: 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.
[Footnote 912: See above, § 185.]
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.
[Footnote 913: See above, § 193.]
[Sidenote: 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.
[Footnote 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.
[Footnote 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 § 406_a_ (2).
[Sidenote: 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]
[Footnote 916: See above, § 195.]
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.
[Footnote 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.
[Footnote 918: The _War Onskan_ (1799), 2 C. Rob. 299. See Holland,
_Prize Law_, § 270.]
[Sidenote: 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).
[Sidenote: Trial of Captured Vessels a Municipal Matter.]
§ 434. Although belligerents have, under certain circumstances,
according to International Law, the right to capture neutral vessels,
and although they have the duty to bring these vessels for trial before
a Prize Court, such trials are in no way an international matter. Just
as Prize Courts--apart from the proposed International Prize Court--are
municipal[919] institutions, so trials of captured neutral vessels by
these Prize Courts are municipal matters. The neutral home States of the
vessels are not represented and, directly at any rate, not concerned in
the trial. Nor is, as commonly maintained, the law administered by Prize
Courts International Law. These Courts apply the law of their country.
The best proof of this is the fact that the practice of the Prize Courts
of the several countries has hitherto differed in many points. Thus, for
instance, the question what is and what is not contraband, and,
further, the question when an attempt to break blockade begins and when
it ends, have hitherto been differently answered by the practice of
different States.
[Footnote 919: See above, § 192. The matter is regulated so far as Great
Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch.
25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The
_Règlement international des prises maritimes_, adopted in 1887 at
Heidelberg by the Institute of International Law, provides in §§ 63-118
detailed rules concerning the organisation of Prize Courts and the
procedure before them; see _Annuaire_, IX. (1888), p. 208.]
Many writers, however, maintain that Prize Courts are International
Courts, and that the law administered by these courts is International
Law. Lord Stowell again and again[920] emphatically asserted it, and the
vast majority of English and American writers[921] follow him. But it is
to be expected that the recognition of the difference between Municipal
and International Law, as expounded above, Vol. I., §§ 20-25, and of the
fact that States only, and neither their Courts nor officials nor
citizens, are subjects of International Law, will lead to the general
recognition of the fact that the law applied by National Prize Courts is
not and cannot be International Law.
[Footnote 920: The _Maria_ (1799), 1 C. Rob. 340; the _Recovery_ (1807),
6 C. Rob. 341; the _Fox and others_ (1811), Edwards, 311.]
[Footnote 921: See, for instance, Halleck, II. p. 411; Maine, p. 96;
Manning, p. 472; Phillimore, III. §§ 433-436; Hall, § 277. On the other
hand, Holland, _Studies_, p. 199; Westlake, II. p. 289; and Scott,
_Conferences_, p. 467, distinctly agree with me.]
And matters will remain as they are even after the establishment of the
International Prize Court and ratification of the Declaration of London.
The law of this Declaration is certainly International Law, but it will
be binding only upon the States, and they, on their part, must embody it
in their Municipal Law so that their Prize Courts are obliged to
administer such a law in prize cases as is in conformity with the
Declaration of London. It will be the task of the International Prize
Court[922] to control the National Prize Courts in that direction. A
State which is a party to the Declaration and would nevertheless order
its Prize Courts to apply a law which is in opposition to the
Declaration of London, would commit an international delinquency, but
its Prize Courts would be obliged to apply such law.
[Footnote 922: Trial before this Court is, of course, an international
matter.]
[Sidenote: Result of Trial.]
§ 435. The trial of a captured neutral ship can have one or more of five
results:--vessel and cargo can be condemned,[923] or the vessel alone,
or the cargo alone; and the vessel and cargo can be released either with
or without costs and damages. Costs and damages must be allowed when
capture was not justified, and, after the ratification of the
Declaration of London and the establishment of the International Prize
Court, an appeal may, according to article 64 of the Declaration of
London and article 4 of Convention XII., be brought before the
International Prize Court if costs and damages are refused or
inadequately allowed by a Prize Court. But it must be emphasised that
capture might be justified, as, for instance, in the case of spoliation
of papers, although the Prize Court did not condemn the vessel, and,
further, that costs and damages are never allowed in case a part only of
the cargo is condemned, although the vessel herself and the greater part
of the cargo are released. That, in case the captor is unable to pay the
costs and damages allowed to a released neutral vessel, his Government
has to indemnify the vessel, there ought to be no doubt, for a State
bears "vicarious" responsibility[924] for internationally injurious acts
of its naval forces.
[Footnote 923: It would seem to be obvious that condemnation of the
vessel involves the loss of the vessel at the date of capture; see
_Andersen_ v. _Marten_, L.R. (1907) 2 K.B. 248.]
[Footnote 924: See above, vol. I. § 163.]
[Sidenote: Trial after Conclusion of Peace.]
§ 436. It is a moot question whether neutral vessels captured before
conclusion of peace may be tried after the conclusion of peace.[925] I
think that the answer must be in the affirmative, even if a special
clause is contained in the Treaty of Peace, which stipulates that
captured but not yet condemned vessels of the belligerents shall be
released. A trial of neutral prizes is in any case necessary for the
purpose of deciding the question whether capture was justified or not,
and whether, should condemnation not be justified, the neutral vessels
may claim costs and indemnities. Thus, after the conclusion of the
Abyssinian War, in December 1896, the Italian Prize Commission, in the
case of the _Doelwijk_,[926] claimed the right to try the vessel in
spite of the fact that peace had been concluded between the time of
capture and trial, declared the capture of the vessel and cargo to have
been justified, but pronounced that, peace having been concluded,
confiscation of vessel and cargo would no longer be lawful.
[Footnote 925: See Perels, § 57, p. 309, in contradistinction to
Bluntschli, § 862. But there is, of course, no doubt that a belligerent
can exercise an act of grace and release such prizes. Thus, in November
1905, at the end of the Russo-Japanese War, the Mikado proclaimed the
unconditional release of all neutral prizes captured after the signing
but before the ratification of the Peace of Portsmouth. Thereby, three
German vessels, two English, and one Norwegian escaped confiscation,
which in strict law--see above, p. 534, note 4--would have been
justified.]
[Footnote 926: See Martens, _N.R.G._ 2nd Ser. XXVIII. pp. 66-90.]
Different from the question whether neutral prizes may be tried after
the conclusion of peace is the other question whether they may be
condemned to be confiscated. In the above-mentioned case of the
_Doelwijk_ the question was answered in the negative, but I believe it
ought to have been answered in the affirmative. Confiscation of vessel
and cargo having the character of a punishment, it would seem that the
punishment may be inflicted after the conclusion of peace provided the
criminal act concerned was consummated before peace was concluded. But
nothing, of course, stands in the way of a belligerent taking a more
lenient view and ordering his Prize Courts not to pronounce confiscation
of neutral vessels after the conclusion of peace.
The Declaration of London does not settle either the former or the
latter question, and it would therefore be the task of the
International Prize Court to evolve a uniform practice in the cases
concerned.
[Sidenote: Protests and Claims of Neutrals after Trial.]
§ 437. Hitherto, if a trial led to condemnation, and if the latter was
confirmed by the Court of Appeal, the matter as between the captor and
the owner of the captured vessel and cargo was finally settled. But the
right of protection,[927] which a State exercises over its subjects and
their property abroad, may nevertheless have been the cause of
diplomatic protests and claims on the part of the neutral home State of
a condemned vessel or cargo, in case the verdict of the Prize Courts was
considered to be not in accordance with International Law or formally or
materially unjust. It is through such protests and claims that the
matter, which was hitherto a mere municipal one, became of
_international_ importance. And history records many instances of cases
of interposition of neutral States after trials of vessels which had
sailed under their flags. Thus, for instance, in the famous case of the
Silesian Loan,[928] it was the fact that Frederick II. of Prussia
considered the procedure of British Prize Courts regarding a number of
Prussian merchantmen captured during war between Great Britain and
France in 1747 and 1748 as unjust, which made him in 1752 resort to
reprisal and cease the payment of the interest of the Silesian Loan. The
matter was settled[929] in 1756, through the payment of £20,000 as
indemnity by Great Britain. Thus, further, after the American Civil War,
articles 12-17 of the Treaty of Washington[930] provided the appointment
of three Commissioners for the purpose, amongst others, of deciding all
claims against verdicts of the American Prize Courts. And when in 1879,
during war between Peru and Chili, the German vessel _Luxor_ was
condemned by the Peruvian Courts, Germany interposed and the vessel was
released.[931]
[Footnote 927: See above, vol. I. § 319.]
[Footnote 928: See above, § 37.]
[Footnote 929: See Martens, _Causes Célèbres_, II. p. 167.]
[Footnote 930: See Martens, _N.R.G._ XX. p. 698.]
[Footnote 931: See above, § 404.]
The ratification of the Declaration of London and the establishment of
the International Prize Court would finally do away with such grave
international disputes.