International Law. A Treatise Volume Ii Part 26

[Sidenote: Vessels in Distress.]

-- 189. Instances have occurred when enemy vessels which were forced by stress of weather to seek refuge in a belligerent's harbour were granted exemption from seizure.[376] Thus, when in 1746, during war with Spain, the _Elisabeth_, a British man-of-war, was forced to take refuge in the port of Havanna, she was not seized, but was offered facility for repairing damages, and furnished with a safe-conduct as far as the Bermudas. Thus, further, when in 1799, during war with France, the _Diana_, a Prussian merchantman, was forced to take refuge in the port of Dunkirk and seized, she was restored by the French Prize Court. But these and other cases have not created any rule of International Law whereby immunity from attack and seizure is granted to vessels in distress, and no such rule is likely to grow up, especially not as regards men-of-war and such merchantmen as are easily convertible into cruisers.

[Footnote 376: See Ortolan, II. pp. 286-291; Kleen, II. -- 210, pp.

492-494.]

[Sidenote: Immunity of Hospital and Cartel s.h.i.+ps.]

-- 190. According to the Hague Convention, which adapted the principles of the Geneva Convention to warfare on sea, hospital s.h.i.+ps are inviolable, and therefore may be neither attacked nor seized; see below in ---- 204-209. Concerning the immunity of cartel s.h.i.+ps, see below in -- 225.

[Sidenote: Immunity of Mail-boats and of Mail-bags.]

-- 191. No general rule of International Law exists granting enemy mail-boats immunity from attack and seizure, but the several States have frequently stipulated such immunity in the case of war by special treaties.[377] Thus, for instance, Great Britain and France by article 9 of the Postal Convention of August 30, 1860, and Great Britain and Holland by article 7 of the Postal Convention of October 14, 1843, stipulated that all mail-boats navigating between the countries of the parties shall continue to navigate in time of war between these countries without impediment or molestation until special notice be given by either party that the service is to be discontinued.

[Footnote 377: See Kleen, II. -- 210, pp. 505-507.]

Whereas there is no general rule granting immunity from capture to enemy mail-boats, enemy _mail-bags_ do, according to article 1 of Convention XI., enjoy the privilege of such immunity, for it is there enacted that the postal correspondence of neutrals or belligerents, whether official or private in character, which may be found on board a neutral[378] or enemy s.h.i.+p at sea, is inviolable, and that, in case the s.h.i.+p is detained, the correspondence is to be forwarded by the captor with the least possible delay. There is only one exception to this rule of article 1, for correspondence destined to or proceeding from a blockaded port does not enjoy the privilege of immunity.

[Footnote 378: See below, ---- 319 and 411.]

It must be specially observed that postal correspondence, and not parcels sent by parcel post, are immune from capture.

III

APPROPRIATION AND DESTRUCTION OF ENEMY MERCHANTMEN

Hall, ---- 149-152, 171, 269--Lawrence, ---- 183-191--Westlake, II.

pp. 156-160--Phillimore, III. ---- 345-381--Twiss, II. ---- 72-97--Halleck, II. pp. 362-431, 510-526--Taylor, ---- 552-567--Wharton, III. -- 345--Wheaton, ---- 355-394--Moore, VII. ---- 1206-1214--Bluntschli, ---- 672-673--Heffter, ---- 137-138--Geffcken in Holtzendorff, IV. pp. 588-596--Ullmann, -- 189--Bonfils, Nos.

1396-1440--Despagnet, Nos. 670-682--Pradier-Fodere, VIII. Nos.

3179-3207--Rivier, II. -- 66--Calvo, IV. ---- 2294-2366, V. ---- 3004-3034--Fiore, III. Nos. 1426-1443, and Code, Nos.

1693-1706--Martens, II. ---- 125-126--Pillet, pp. 342-352--Perels, ---- 36, 55-58--Testa, pp. 147-160--Valin, _Traite des prises_, 2 vols. (1758-60), and _Commentaire sur l'ordonnance de 1681_, 2 vols. (1766)--Pistoye et Duverdy, _Traite des prises maritimes_, 2 vols. (1854-1859)--Upton, _The Law of Nations affecting Commerce during War_ (1863)--Boeck, Nos. 156-209, 329-380--Dupuis, Nos.

96-149, 282-301--Bernsten, -- 8--Marsden, _Early Prize Jurisdiction and Prize Law in England_ in _The English Historical Review_, XXIV. (1909), p. 675; XXV. (1910), p. 243; XXVI. (1911) p.

34--Roscoe, _The Growth of English Law_ (1911), pp. 92-140. See also the literature quoted by Bonfils at the commencement of No.

1396.

[Sidenote: Prize Courts.]

-- 192. It has already been stated above, in -- 185, that the capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through the latter's adjudication that the vessel becomes finally appropriated. The origin[379] of Prize Courts is to be traced back to the end of the Middle Ages. During the Middle Ages, after the Roman Empire had broken up, a state of lawlessness established itself on the High Seas. Piratical vessels of the Danes covered the North Sea and the Baltic, and navigation of the Mediterranean Sea was threatened by Greek and Saracen pirates. Merchantmen, therefore, a.s.sociated themselves for mutual protection and sailed as a merchant fleet under a specially elected chief, the so-called Admiral. They also occasionally sent out a fleet of armed vessels for the purpose of sweeping pirates from certain parts of the High Seas. Piratical vessels and goods which were captured were divided among the captors according to a decision of their Admiral.

During the thirteenth century the maritime States of Europe themselves endeavoured to keep order on the Open Sea. By-and-by armed vessels were obliged to be furnished with Letters Patent or Letters of Marque from the Sovereign of a maritime State and their captures submitted to the official control of such State as had furnished them with their Letters.

A board, called the Admiralty, was inst.i.tuted by maritime States, and officers of that Board of Admiralty exercised control over the armed vessels and their captures, inquiring in each case[380] into the legitimation of the captor and the nationality of the captured vessel and her goods. And after modern International Law had grown up, it was a recognised customary rule that in time of war the Admiralty of maritime belligerents should be obliged to inst.i.tute a Court[381] or Courts whenever a prize was captured by public vessels or privateers in order to decide whether the capture was lawful or not. These Courts were called Prize Courts. This inst.i.tution has come down to our times, and nowadays all maritime States either const.i.tute permanent Prize Courts, or appoint them specially in each case of an outbreak of war. The whole inst.i.tution is essentially one in the interest of neutrals, since belligerents want to be guarded by a decision of a Court against claims of neutral States regarding alleged unjustified capture of neutral vessels and goods. The capture of any private vessel, whether _prima facie_ belonging to an enemy or a neutral, must, therefore, be submitted to a Prize Court. Article 1 of Convention XII. (as yet unratified) of the Second Peace Conference now expressly enacts the old customary rule that "the validity of the capture of a merchantman or its cargo, when neutral or enemy property is involved, is decided before a Prize Court."

It must, however, be emphasised that the ordinary Prize-Courts are not International Courts, but National Courts inst.i.tuted by Munic.i.p.al Law, and that the law they administer is Munic.i.p.al Law,[382] based on custom, statutes, or special regulations of their State. Every State is, however, bound by International Law to enact only such statutes and regulations[383] for its Prize Courts as are in conformity with International Law. A State may, therefore, instead of making special regulations, directly order its Prize Courts to apply the rules of International Law, and it is understood that, when no statutes are enacted or regulations are given, Prize Courts have to apply International Law. Prize Courts may be inst.i.tuted by belligerents in any part of their territory or the territories of allies, but not on neutral territory. It would nowadays const.i.tute a breach of neutrality on the part of a neutral State to allow the inst.i.tution on its territory of a Prize Court.[384]

[Footnote 379: I follow the excellent summary of the facts given by Twiss, II. ---- 74-75, but Marsden's articles in _The English Historical Review_, XXIV. (1909), p. 675, XXV. (1910), p. 243, XXVI. (1911), p. 34, must likewise be referred to.]

[Footnote 380: The first case that is mentioned as having led to judicial proceedings before the Admiral in England dates from 1357; see Marsden, _loc. cit._ XXIV. (1909), p. 680.]

[Footnote 381: In England an Order in Council, dated July 20, 1589, first provided that all captures should be submitted to the High Court of Admiralty; see Marsden, _loc. cit._ XXIV. (1909), p. 690.]

[Footnote 382: See below, -- 434.]

[Footnote 383: The const.i.tution and procedure of Prize Courts in Great Britain are governed 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 Naval Prize Bill introduced by the British Government in 1911, although accepted by the House of Commons, was thrown out by the House of Lords.--It should be mentioned that the Inst.i.tute of International Law has in various meetings occupied itself with the whole matter of capture, and adopted a body of rules in the _Reglement international des Prises Maritimes_, which represent a code of Prize Law; see _Annuaire_, IX. pp. 218-243, but also XVI. pp. 44 and 311.]

[Footnote 384: See below, -- 327, and article 4 of Convention XIII. of the Second Peace Conference.]

Whereas the ordinary Prize Courts are national courts, Convention XII.--as yet unratified--of the Second Peace Conference, provides for the establishment of an International[385] Prize Court at the Hague, which, in certain matters, is to serve as a Court of Appeal in prize cases. In these cases jurisdiction in matters of prize is exercised, in the first instance, by the Prize Courts of belligerents (article 2), but, according to article 6, the national Prize Courts may not deal with any case in which there is a second appeal; since such cases necessarily come before the International Prize Court at the second appeal. This means that belligerents, besides Prize Courts of the first instance, may set up a Prize Court of Appeal, but they may not set up a second Court of Appeal above the first, except in cases in which the International Prize Court has no jurisdiction.

[Footnote 385: See above, vol. I. -- 476_a_, and below, ---- 442-447.]

It must be specially observed that the proposed International Prize Court--see articles 3 and 4--is, in the main, a Court to decide between belligerents and neutrals, and not between two belligerents.

[Sidenote: Conduct of Prize to port of Prize Court.]

-- 193. As soon as a vessel is seized she must be conducted to a port where a Prize Court is sitting. As a rule the officer and the crew sent on board the prize by the captor will navigate the prize to the port.

This officer can ask the master and crew of the vessel to a.s.sist him, but, if they refuse, they may not be compelled thereto. The captor need not accompany the prize to the port. In the exceptional case, however, where an officer and crew cannot be sent on board and the captured vessel is ordered to lower her flag and to steer according to orders, the captor must conduct the prize to the port. To which port a prize is to be taken is not for International Law to determine; the latter says only that the prize must be taken straight to a port of a Prize Court, and only in case of distress or necessity is delay allowed. If the neutral State concerned gives permission,[386] the prize may, in case of distress or in case she is in such bad condition as prevents her from being taken to a port of a Prize Court, be taken to a near neutral port, and, if admitted, the capturing man-of-war as well as the prize enjoy there the privilege of exterritoriality. But as soon as circ.u.mstances allow, the prize must be conducted from the neutral port to that of the Prize Court, and only if the condition of the prize does not at all allow this, may the Prize Court give its verdict in the absence of the prize after the s.h.i.+p papers of the prize and witnesses have been produced before it.

[Footnote 386: See below, -- 328, and articles 21-23 of Convention XIII.

of the Second Peace Conference.]

The whole of the crew of the prize are, as a rule, to be kept on board and to be brought before the Prize Court. But if this is impracticable, several important members of the crew, such as the master, mate, or supercargo, must be kept on board, whereas the others may be removed and forwarded to the port of the Prize Court by other means of transport.

The whole of the cargo is, as a rule, also to remain on board the prize.

But if the whole or part of the cargo is in a condition which prevents it from being sent to the port of the Prize Court, it may, according to the needs of the case, either be destroyed or sold in the nearest port, and in the latter case an account of the sale has to be sent to the Prize Court. All neutral goods amongst the cargo are also to be taken to the port of adjudication, although they have now, according to the Declaration of Paris, to be restored to their neutral owners. But if such neutral goods are not in a condition to be taken to the port of adjudication, they may likewise be sold or destroyed, as the case may require.

[Sidenote: Destruction of Prize.]

-- 194. Since through adjudication by the Prize Courts the owners.h.i.+p of captured private enemy vessels becomes finally transferred to the belligerent whose forces made the capture, it is evident that after transfer the captured vessel as well as her cargo may be destroyed. On the other hand, it is likewise evident that, since a verdict of a Prize Court is necessary before the appropriation of the prize becomes final, a captured merchantman must not as a rule be destroyed instead of being conducted to the port of a Prize Court. There are, however, exceptions to the rule, but no unanimity exists in theory or practice as regards those exceptions. Whereas some[387] consider the destruction of a prize allowable only in case of imperative necessity, others[388] allow it in nearly every case of convenience. Thus, the Government of the United States of America, on the outbreak of war with England in 1812, instructed the commanders of her vessels to destroy at once all captures, the very valuable excepted, because a single cruiser, however successful, could man a few prizes only, but by destroying each capture would be able to continue capturing, and thereby constantly diminish the enemy merchant fleet.[389] During the Civil War in America the cruisers of the Southern Confederated States destroyed all enemy prizes because there was no port open for them to bring prizes to. And during the Russo-j.a.panese War, Russian cruisers destroyed twenty-one captured j.a.panese merchantmen.[390] According to British practice,[391] the captor is allowed to destroy the prize in only two cases--namely, first, when the prize is in such a condition as prevents her from being sent to any port of adjudication; and, secondly, when the capturing vessel is unable to spare a prize crew to navigate the prize into such a port.

The _Reglement international des prises maritimes_ of the Inst.i.tute of International Law enumerates in -- 50 five cases in which destruction of the capture is allowed--namely (1) when the condition of the vessel and the weather make it impossible to keep the prize afloat; (2) when the vessel navigates so slowly that she cannot follow the captor and is therefore exposed to an easy recapture by the enemy; (3) when the approach of a superior enemy force creates the fear that the prize might be recaptured by the enemy; (4) when the captor cannot spare a prize crew; (5) when the port of adjudication to which the prize might be taken is too far from the spot where the capture was made. Be that as it may,[392] in every case of destruction of the vessel the captor must remove crew, s.h.i.+p papers, and, if possible, the cargo, before the destruction of the prize, and must afterwards send crew, papers, and cargo to a port of a Prize Court for the purpose of satisfying the latter that both the capture and the destruction were lawful.

[Footnote 387: See, for instance, Bluntschli, -- 672.]

[Footnote 388: See, for instance, Martens, -- 126, who moreover makes no difference between the prize being an enemy or a neutral s.h.i.+p.]

[Footnote 389: U.S. Naval War Code (article 14) allows the destruction "in case of military or other necessity."]

[Footnote 390: See Takahas.h.i.+, pp. 284-310.]

[Footnote 391: The _Actaeon_ (1815), 2 Dod. 48; the _Felicity_ (1819), 2 Dod. 381; the _Leucade_ (1855), Spinks, 217. See also Holland, _Prize Law_, ---- 303-304.]

[Footnote 392: The whole matter is thoroughly discussed by Boeck, Nos.

268-285; Dupuis, Nos. 262-268; and Calvo, V. ---- 3028-3034. As regards destruction of a neutral prize, see below, -- 431.]

But if destruction of a captured enemy merchantman can as an exception be lawful, the question as to indemnities to be paid to the neutral owners of goods carried by the destroyed vessel requires attention. It seems to be obvious that, if the destruction of the vessel herself was lawful, and if it was not possible to remove her cargo, no indemnities need be paid. An ill.u.s.trative case happened during the Franco-German War. On October 21, 1870, the French cruiser _Dessaix_ seized two German merchantmen, the _Ludwig_ and the _Vorwarts_, but burned them because she could not spare a prize crew to navigate the prizes into a French port. The neutral owners of part of the cargo claimed indemnities, but the French Conseil d'etat refused to grant indemnities on the ground that the action of the captor was lawful.[393]

[Footnote 393: See Boeck, No. 146; Barboux, p. 153; Calvo, V. -- 3033; Dupuis, No. 262; Hall, -- 269. Should the International Prize Court at the Hague be established, article 3 of Convention XII. of the Second Peace Conference would enable the owners of neutral goods destroyed with the destroyed enemy merchantmen that carried them to bring the question as to whether they may claim damages before this Court.]

[Sidenote: Ransom of Prize.]

-- 195. Although prizes have as a rule to be brought before a Prize Court, International Law nevertheless does not forbid the ransoming of the captured vessel either directly after the capture or after she has been conducted to the port of a Prize Court, but before the Court has given its verdict. However, the practice of accepting and paying ransom, which grew up in the seventeenth century, is in many countries now prohibited by Munic.i.p.al Law. Thus, for instance, Great Britain by section 45 of the Naval Prize Act, 1864, prohibits ransoming except in such cases as may be specially provided for by an Order of the King in Council.[394] Where ransom is accepted, a contract of ransom is entered into by the captor and the master of the captured vessel; the latter gives a so-called ransom bill to the former, in which he promises the amount of the ransom. He is given a copy of the ransom bill for the purpose of a safe-conduct to protect his vessel from again being captured, under the condition that he keeps the course to such port as is agreed upon in the ransom bill. To secure the payment of ransom, an officer of the captured vessel can be detained as hostage, otherwise the whole of the crew is to be liberated with the vessel, ransom being an equivalent for both the restoration of the prize and the release of her crew from captivity. So long as the ransom bill is not paid, the hostage can be kept in captivity. But it is exclusively a matter for the Munic.i.p.al Law of the State concerned to determine whether or no the captor can sue upon the ransom bill, if the ransom is not voluntarily paid.[395] Should the capturing vessel, with the hostage or the ransom bill on board, be captured herself and thus become a prize of the enemy, the hostage is liberated, the ransom bill loses its effect, and need not be paid.[396]