Chapter XXVII: Part III: §§ 368-413 (1)

[Sidenote: Objects of the Means of Sea Warfare.]

§ 175. Whereas the objects against which means of land warfare may be directed are innumerable, the number of the objects against which means of sea warfare are directed is very limited, comprising six objects only. The chief object is enemy vessels, whether public or private; the next, enemy individuals, with distinction between those taking part in fighting and others; the third, enemy goods on enemy vessels; the fourth, the enemy coast; the fifth and sixth, neutral vessels attempting to break blockade, carrying contraband, or rendering unneutral service to the enemy.

[Sidenote: Development of International Law regarding Private Property on Sea.]

§ 176. It is evident that in times when a belligerent could destroy all public and private enemy property he was able to seize, no special rule existed regarding private enemy ships and private enemy property carried by them on the sea. But the practice of sea warfare frequently went beyond the limits of even so wide a right, treating neutral goods on enemy ships as enemy goods, and treating neutral ships carrying enemy goods as enemy ships. It was not until the time of the _Consolato del Mare_ in the fourteenth century that a set of clear and definite rules with regard to private enemy vessels and private enemy property on sea in contradistinction to neutral ships and neutral goods was adopted. According to this famous collection of maritime usages observed by the communities of the Mediterranean, there is no doubt that a belligerent may seize and appropriate all private enemy ships and goods. But a distinction is made in case of either ship or goods being neutral. Although an enemy ship may always be appropriated, neutral goods thereon have to be restored to the neutral owners. On the other hand, enemy goods on neutral ships may be appropriated, but the neutral ships carrying such goods must be restored to their owners. However, these rules of the _Consolato del Mare_ were not at all generally recognised, although they were adopted by several treaties between single States during the fourteenth and fifteenth centuries. Neither the communities belonging to the Hanseatic League, nor the Netherlands and Spain during the War of Independence, nor England and Spain during their wars in the sixteenth century, adopted these rules. And France expressly enacted by Ordinances of 1543 (article 42) and 1583 (article 69) that neutral goods on enemy ships as well as neutral ships carrying enemy goods should be appropriated.[344] Although France adopted in 1650 the rules of the _Consolato del Mare_, Louis XIV. dropped them again by the Ordinance of 1681 and re-enacted that neutral goods on enemy ships and neutral ships carrying enemy goods should be appropriated. Spain enacted the same rules in 1718. The Netherlands, in contradistinction to the _Consolato del Mare_, endeavoured by a number of treaties to foster the principle that the flag covers the goods, so that enemy goods on neutral vessels were exempt from, whereas neutral goods on enemy vessels were subject to, appropriation. On the other hand, throughout the eighteenth and during the nineteenth century down to the beginning of the Crimean War in 1854, England adhered to the rules of the _Consolato del Mare_. Thus, no generally accepted rules of International Law regarding private property on sea were in existence.[345] Matters were made worse by privateering, which was generally recognised as lawful, and by the fact that belligerents frequently declared a coast blockaded without having a sufficient number of men-of-war on the spot to make the blockade effective. It was not until the Declaration of Paris in 1856 that general rules of International Law regarding private property on sea came into existence.

[Footnote 344: _Robe d'ennemy confisque celle d'amy. Confiscantur ex navibus res, ex rebus naves._]

[Footnote 345: Boeck, Nos. 3-103, and Geffcken in Holtzendorff, IV. pp. 572-578, give excellent summaries of the facts.]

[Sidenote: Declaration of Paris.]

§ 177. Things began to undergo a change with the outbreak of the Crimean War in 1854, when all the belligerents proclaimed that they would not issue Letters of Marque, and when, further, Great Britain declared that she would not seize enemy goods on neutral vessels, and when, thirdly, France declared that she would not appropriate neutral goods on enemy vessels. Although this alteration of attitude on the part of the belligerents was originally intended for the Crimean War only and exceptionally, it led after the conclusion of peace in 1856 to the famous and epoch-making Declaration of Paris,[346] which enacted the four rules--(1) that privateering is abolished, (2) that the neutral flag covers enemy goods[347] with the exception of contraband of war, (3) that neutral goods, contraband of war excepted, are not liable to capture under the enemy flag, (4) that blockades, in order to be binding, must be effective, which means maintained by a force sufficient really to prevent access to the coast of the enemy. Since, with the exception of a few States such as the United States of America, Colombia, Venezuela, Bolivia, and Uruguay, all members of the Family of Nations are now parties to the Declaration of Paris, it may well be maintained that the rules quoted are general International Law, the more so as the non-signatory Powers have hitherto in practice always acted in accordance with those rules.[348]

[Footnote 346: See Martens, _N.R.G._ XV. p. 767, and above, vol. I. § 559.]

[Footnote 347: It has been asserted--see, for instance, Rivier, II. p. 429--that the neutral flag covers only private, not public, enemy property, and therefore that such goods on neutral vessels as belong to the State of the enemy may be seized and appropriated. This opinion would seem, however, to be untenable in face of the fact that the Declaration of Paris speaks of _marchandise neutre_ without any qualification, only excepting contraband goods, thus protecting the whole of the cargo under the neutral flag, contraband excepted. See below, § 319, p. 385, note 3.]

[Footnote 348: That there is an agitation for the abolition of the Declaration of Paris has been mentioned above, § 83, p. 100, note 3.]

[Sidenote: The Principle of Appropriation of Private Enemy Vessels and Enemy Goods thereon.]

§ 178. The Declaration of Paris did not touch upon the old rule that private enemy vessels and private enemy goods thereon may be seized and appropriated, and this rule is, therefore, as valid as ever, although there is much agitation for its abolition. In 1785 Prussia and the United States of America had already stipulated by article 23 of their Treaty of Friendship[349] that in case of war between the parties each other's merchantmen shall not be seized and appropriated. Again, in 1871 the United States and Italy, by article 12 of their Treaty of Commerce,[350] stipulated that in case of war between the parties each other's merchantmen, with the exception of those carrying contraband of war or attempting to break a blockade, shall not be seized and appropriated. In 1823 the United States had already made the proposal to Great Britain, France, and Russia[351] for a treaty abrogating the rule that enemy merchantmen and enemy goods thereon may be appropriated; but Russia alone accepted the proposal under the condition that all other naval Powers should consent. Again, in 1856,[352] on the occasion of the Declaration of Paris, the United States endeavoured to obtain the victory of the principle that enemy merchantmen shall not be appropriated, making it a condition of their accession to the Declaration of Paris that this principle should be recognised. But again the attempt failed, owing to the opposition of Great Britain.

[Footnote 349: See Martens, _R._ IV. p. 37. Perels (p. 198) maintains that this article has not been adopted by the Treaty of Commerce between Prussia and the United States of May 1, 1828; but this statement is incorrect, for article 12 of this treaty--see Martens, _N.R._ VII. p. 615--adopts it expressly.]

[Footnote 350: See Martens, _N.R.G._ 2nd Ser. I. p. 57.]

[Footnote 351: See Wharton, III. § 342, pp. 260-261, and Moore, VII. § 1198, p. 465.]

[Footnote 352: See Wharton, III. § 342, pp. 270-287, and Moore, VII. § 1198, p. 466.]

At the outbreak of war in 1866, Prussia and Austria expressly declared that they would not seize and appropriate each other's merchantmen. At the outbreak of the Franco-German War in 1870, Germany declared French merchantmen exempt from capture, but she changed her attitude when France did not act upon the same lines. It should also be mentioned that already in 1865 Italy, by article 211 of her Marine Code, enacted that, in case of war with any other State, enemy merchantmen not carrying contraband of war or breaking a blockade shall not be seized and appropriated, provided reciprocity be granted. And it should further be mentioned that the United States of America made attempts[353] in vain to secure immunity from capture to enemy merchantmen and goods on sea at the First as well as at the Second Hague Peace Conference.

[Footnote 353: See Holls, _The Peace Conference at the Hague_, pp. 306-321, and Scott, _Conferences_, pp. 699-707.]

It cannot be denied that the constant agitation, since the middle of the eighteenth century, in favour of the abolition of the rule that private enemy vessels and goods may be captured on the High Seas, might, during the second half of the nineteenth century, have met with success but for the decided opposition of Great Britain. Public opinion in Great Britain was not, and is not, prepared to consent to the abolition of this rule. And there is no doubt that the abolition of the rule would involve a certain amount of danger to a country like Great Britain whose position and power depend chiefly upon her navy. The possibility of annihilating an enemy's commerce by annihilating his merchant fleet is a powerful weapon in the hands of a great naval Power. Moreover, if enemy merchantmen are not captured, they can be fitted out as cruisers, or at least be made use of for the transport of troops, munitions, and provisions. Have not several maritime States made arrangements with their steamship companies to secure the building of their Transatlantic liners according to plans which make these merchantmen easily convertible into men-of-war?

The argument that it is unjust that private enemy citizens should suffer through having their property seized has no weight in face of the probability that fear of the annihilation of its merchant fleet in case of war may well deter a State intending to go to war from doing so. It is a matter for politicians, not for jurists, to decide whether Great Britain must in the interest of self-preservation oppose the abolition of the rule that sea-borne private enemy property may be confiscated.

However this may be, since the end of the nineteenth century it has not been the attitude of Great Britain alone which stands in the way of the abolition of the rule. Since the growth of navies among continental Powers, these Powers have learnt to appreciate the value of the rule in war, and the outcry against the capture of merchantmen has become less loud. To-day, it may perhaps be said that, even if Great Britain were to propose the abolition of the rule, it is probable that a greater number of the maritime States would refuse to accede. For it should be noted that at the Second Peace Conference, France, Russia, Japan, Spain, Portugal, Mexico, Colombia, and Panama, besides Great Britain, voted against the abolition of the rule. And there is noticeable a slow, but constant, increase in the number of continental publicists[354] who oppose the abolition of the once so much objected to practice of capturing enemy merchantmen.

[Footnote 354: See, for instance, Perels, § 36, pp. 195-198; Röpcke, _Das Seebeuterecht_ (1904), pp. 36-47; Dupuis, Nos. 29-31; Pillet, p. 119; Giordana, _La proprieta privata nelle guerre maritime, etc._ (1907); Niemeyer, _Prinzipien des Seekriegsrechts_ (1909); Boidin, pp. 144-167. On the other hand, the Institute of International Law has several times voted in favour of the abolition of the rule; see _Tableau Général de l'Institut de droit International_ (1893), pp. 190-193. The literature concerning the question of confiscation of private enemy property on sea is abundant. The following authors, besides those already quoted above at the commencement of § 173, may be mentioned:--Upton, _The Law of Nations affecting Commerce during War_ (1863); Cauchy, _Du respect de la propriété privée dans la guerre maritime_ (1866); Vidari, _Del rispetto della proprietà privata fra gli stati in guerra_ (1867); Gessner, _Zur Reform des Kriegsseerechts_ (1875); Klobukowski, _Die Seebeute oder das feindliche Privateigenthum zur See_ (1877); Bluntschli, _Das Beuterecht im Kriege und das Seebeuterecht insbesondere_ (1878); Boeck, _De la propriété privée ennemie sous pavillon ennemi_ (1882); Dupuis, _La guerre maritime et les doctrines anglaises_ (1899); Leroy, _La guerre maritime_ (1900); Röpcke, _Das Seebeuterecht_ (1904); Hirst, _Commerce and Property in Naval Warfare: A Letter of the Lord Chancellor_ (1906); Hamman, _Der Streit um das Seebeuterecht_ (1907); Wehberg, _Das Beuterecht im Land und Seekrieg_ (1909); Cohen, _The Immunity of Enemy's Property from Capture at Sea_ (1909); Macdonell, _Some plain Reasons for Immunity from Capture of Private Property at Sea_ (1910). See also the literature quoted by Bonfils, No. 1281, Pradier-Fodéré, VIII. Nos. 3070-3090, and Boeck, Nos. 382-572, where the arguments of the authors against and in favour of the present practice are discussed.]

[Sidenote: Impending Codification of Law of Sea Warfare.]

§ 179. Be that as it may, the time is not very far distant when the Powers will perforce come to an agreement on this as on other points of sea warfare, in a code of regulations regarding sea warfare as a pendant to the Hague Regulations regarding warfare on land. An initiative step was taken by the United States of America by her Naval War Code[355] published in 1900, although she withdrew[356] the Code in 1904. Meanwhile, the Second Peace Conference has produced a number of Conventions dealing with some parts of Sea Warfare, namely: (1) the Convention (VI.) concerning the status of enemy merchantmen at the outbreak of hostilities; (2) the Convention (VII.) concerning the conversion of merchantmen into warships; (3) the Convention (VIII.) concerning the laying of automatic submarine contact mines; (4) the Convention (IX.) concerning the bombardment by naval forces; (5) the Convention (XI.) concerning restrictions on the exercise of the right of capture in maritime war.

[Footnote 355: See above, vol. I. § 32.]

[Footnote 356: See above, § 68, p. 83, note 1.]

II

ATTACK AND SEIZURE OF ENEMY VESSELS

Hall, §§ 138 and 148--Lawrence, § 182--Westlake, II. pp. 133-140,
307-331--Phillimore, III. § 347--Twiss, II. § 73--Halleck, II. pp.
105-108--Taylor, §§ 545-546--Moore, VII. §§ 1175-1183,
&c.,--Walker, § 50, p. 147--Wharton, III. § 345--Bluntschli, §§
664-670--Heffter, §§ 137-139--Ullmann, § 188--Bonfils, Nos.
1269-1271, 1350-1354, 1398-1400--Despagnet, Nos. 650-659--Rivier,
§ 66--Nys, III. pp. 467-478--Pradier-Fodéré, VIII. Nos. 3155-3165,
3176-3178--Calvo, IV. §§ 2368-2378--Fiore, III. Nos. 1414-1424,
and Code, Nos. 1643-1649--Pillet, pp. 120-128--Perels, §
35--Testa, pp. 155-157--Lawrence, _War_, pp. 48-55,
93-111--Ortolan, II. pp. 31-34--Boeck, Nos. 190-208--Dupuis, Nos.
150-158, and _Guerre_, Nos. 74-112--U.S. Naval War Code, articles
13-16--Bernsten, §§ 7-8.

[Sidenote: Importance of Attack and Seizure of Enemy Vessels.]

§ 180. Whereas in land warfare all sorts of violence against enemy individuals are the chief means, in sea warfare attack and seizure of enemy vessels are the most important means. For together with enemy vessels, a belligerent takes possession of the enemy individuals and enemy goods thereon, so that he can appropriate vessels and goods, as well as detain those enemy individuals who belong to the enemy armed forces as prisoners of war. For this reason, and compared with attack and seizure of enemy vessels, violence against enemy persons and the other means of sea warfare play only a secondary part, although such means are certainly not unimportant. For a weak naval Power can even restrict the operations of her fleet to mere coast defence, and thus totally refrain from directly attacking and seizing enemy vessels.

[Sidenote: Attack when legitimate.]

§ 181. All enemy men-of-war and other public vessels, which are met by a belligerent's men-of-war on the High Seas or within the territorial waters of either belligerent,[357] may at once be attacked, and the attacked vessel may, of course, defend herself by a counter-attack. Enemy merchantmen may be attacked only if they refuse to submit to visit after having been duly signalled to do so. And no duty exists for an enemy merchantman to submit to visit; on the contrary, she may refuse it, and defend herself against an attack. But only a man-of-war is competent to attack men-of-war as well as merchantmen, provided the war takes place between parties to the Declaration of Paris, so that privateering is prohibited. Any merchantman of a belligerent attacking a public or private vessel of the enemy would be considered and treated as a pirate, and the members of the crew would be liable to be treated as war criminals[358] to the same extent as private individuals committing hostilities in land warfare. However, if attacked by an enemy vessel, a merchantman is competent to deliver a counter-attack and need not discontinue her attack because the vessel which opened hostilities takes to flight, but may pursue and seize her.

[Footnote 357: But not, of course, in territorial waters of neutral States; see the _De Fortuyn_ (1760), Burrell 175.]

[Footnote 358: See above, § 85, and below, § 254. Should a merchantman, legitimately--after having been herself attacked--or illegitimately, attack an enemy vessel, and succeed in capturing her, the prize, on condemnation, becomes _droits_ of Admiralty and, therefore, the property of the British Government; see article 39 of the Naval Prize Act, 1864, and article 44 of the Naval Prize Bill introduced in 1911.]

It must be specially mentioned that an attack upon enemy vessels on the sea may be made by forces on the shore. For instance, this is done when coast batteries fire upon an enemy man-of-war within reach of their guns. Enemy merchantmen, however, may not be attacked in this way, for they may only be attacked by men-of-war after having been signalled in vain to submit to visit.

[Sidenote: Attack how effected.]

§ 182. One mode of attack which was in use at the time of sailing ships, namely, boarding and fighting the crew, which can be described as a parallel to assault in land warfare, is no longer used, but if an instance occurred, it would be perfectly lawful. Attack is nowadays effected by cannonade, torpedoes, and, if opportunity arises, by ramming; and nothing forbids an attack on enemy vessels by launching projectiles and explosives from air-vessels, provided the belligerents are not parties to the Declaration--see above, § 114--which prohibits such attacks. As a rule attacks on merchantmen will be made by cannonade only, as the attacking vessel aims at seizing her on account of her value. But, in case the attacked vessel not only takes to flight, but defends herself by a counter-attack, all modes of attack are lawful against her, just as she herself is justified in applying all modes of attack by way of defence.

As regards attack by torpedoes, article 1 No. 3 of Convention VIII. of the Second Peace Conference enacts that it is forbidden to use torpedoes which do not become harmless if they miss their mark.

[Sidenote: Submarine Contact Mines.]

§ 182_a_. A new mode of attack which requires special attention[359] is that by means of floating mechanical, in contradistinction to so-called electro-contact, mines. The latter need not specially be discussed, because they are connected with a battery on land, can naturally only be laid within territorial waters, and present no danger to neutral shipping except on the spot where they are laid. But floating mechanical mines can be dropped as well in the Open Sea as in territorial waters; they can, moreover, drift away to any distance from the spot where they were dropped and thus become a great danger to navigation in general. Mechanical mines were for the first time used, and by both parties, in the Russo-Japanese War during the blockade of Port Arthur in 1904, and the question of their admissibility was at once raised in the press of all neutral countries, the danger to neutral shipping being obvious. The Second Peace Conference took the matter up and, in spite of the opposing views of the Powers, was able to produce the Convention (VIII.) concerning the laying of automatic submarine contact mines. This Convention comprises thirteen articles and was signed, although by some only with reservations, by all the Powers represented at the Conference, except China, Montenegro, Nicaragua, Portugal, Russia, Spain, and Sweden. Most of the signatory States have already ratified, and Nicaragua has since acceded. The more important stipulations of this Convention are the following:--

(1) Belligerents[360] are forbidden to lay _unanchored_ automatic contact mines, unless they be so constructed as to become harmless one hour at most after those who laid them have lost control over them, and it is forbidden to lay _anchored_ automatic contact mines which do not become harmless as soon as they have broken loose from their moorings (article 1).

(2) It is forbidden to lay automatic contact mines off the coasts and ports of the enemy, with the sole object of intercepting commercial navigation (article 2).[361]

(3) When anchored automatic contact mines are employed, every possible precaution must be taken for the security of peaceful navigation. The belligerents must provide, as far as possible, for these mines becoming harmless after a limited time has elapsed, and, where the mines cease to be under observation, to notify the danger zones as soon as military exigencies permit, by notice to mariners, which must also be communicated to the Governments through the diplomatic channel (article 3).

(4) At the close of the war, each Power must remove the mines laid by it. As regards anchored automatic contact mines laid by one of the belligerents off the coasts of the other, their position must be notified to the other party by the Power which laid them, and each Power must proceed with the least possible delay to remove the mines in its own waters (article 5).

(5) The Convention remains in force for seven years, but, unless denounced, it continues in force afterwards (article 11). According to article 12, however, the contracting Powers agree to reopen the question of the employment of automatic contact mines after six and a half years unless the Third Peace Conference has already taken up and settled the matter.

[Footnote 359: See Lawrence, _War_, pp. 93-111; Wetzstein, _Die Seeminenfrage im Völkerrecht_ (1909); Rocholl, _Die Frage der Minen im Seekrieg_ (1910); Barclay, pp. 59 and 158; Lémonon, pp. 472-502; Higgins, pp. 328-345; Boidin, pp. 216-235; Dupuis, _Guerre_, Nos. 331-358; Scott, _Conferences_, pp. 576-587; Martitz in the _Report of the 23rd Conference (1906) of the International Law Association_, pp. 47-74; Stockton in _A.J._ II. (1908), pp. 276-284.]

[Footnote 360: As regards neutrals, see below, § 363_a_.]

[Footnote 361: France and Germany have signed with reservations against article 2.]

There is no doubt that the stipulations of Convention VIII. are totally inadequate to secure the safety of neutral shipping, and it is for this reason that Great Britain added the following reservation in signing the Convention:--"In placing their signatures to this Convention the British plenipotentiaries declare that the mere fact that the said Convention does not prohibit a particular act or proceeding must not be held to debar His Britannic Majesty's Government from contesting its legitimacy." It is to be hoped that the Third Peace Conference will produce a more satisfactory settlement of the problem. The Institute of International Law studied the matter at its meetings at Paris in 1910 and at Madrid in 1911, and produced a _Règlementation_[362] _internationale de l'usage des mines sous-marines et torpilles_, comprising nine articles, of which the more important are the following:--

(1) It is forbidden to place anchored or unanchored automatic mines in the Open Sea (the question of the laying of electric contact mines in the Open Sea being reserved for future consideration).

(2) Belligerents may lay mines in their own and in the enemy's territorial waters, but it is forbidden (_a_) to lay unanchored automatic contact mines which do not become harmless one hour at most after those who laid them have lost control over them; (_b_) to lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings.

(3) A belligerent is only allowed to lay mines off the coasts and ports of the enemy for naval and military purposes, he is not allowed to lay them there in order to establish or maintain a commercial blockade.

(4) If mines are laid, all precautions must be taken for the safety of peaceful navigation, and belligerents must, in especial, provide that mines become harmless after a limited time has elapsed. In case mines cease to be under observation the belligerents must, as soon as military exigencies permit, notify the danger zones to mariners and also to the Governments through the diplomatic channel.

(5) The question as to the laying of mines in straits is reserved for future consideration.

(6) At the end of the war each Power must remove the mines laid by it. As regards anchored automatic contact mines laid by one of the belligerents off the coasts of the other, their position must be notified to the other party by the Power which laid them, and each Power must proceed with the least possible delay to remove the mines in its own waters. The Power whose duty it is to remove the mines after the war must make known the date at which the removal of the mines is complete.

(7) A violation of these rules involves responsibility on the part of the guilty State. The State which has laid the mines is presumed to be guilty unless the contrary is proved, and an action may be brought against the guilty State, even by individuals who have suffered damage, before the competent International Tribunal.

[Footnote 362: See _Annuaire_, XXIV. (1911), p. 301.]

[Sidenote: Duty of giving Quarter.]

§ 183. As soon as an attacked or counter-attacked vessel hauls down her flag and, therefore, signals that she is ready to surrender, she must be given quarter and seized without further firing. To continue an attack although she is ready to surrender, and to sink her and her crew, would constitute a violation of customary International Law, and would only as an exception be admissible in case of imperative necessity or of reprisals.

[Sidenote: Seizure.]

§ 184. Seizure is effected by securing possession of the vessel through the captor sending an officer and some of his own crew on board the captured vessel. But if for any reason this is impracticable, the captor orders the captured vessel to lower her flag and to steer according to his orders.

[Sidenote: Effect of Seizure.]

§ 185. The effect of seizure is different with regard to private enemy vessels, on the one hand, and, on the other, to public vessels.

Seizure of _private_ enemy vessels may be described as a parallel to occupation of enemy territory in land warfare. Since the vessel and the individuals and goods thereon are actually placed under the captor's authority, her officers and crew, and any private individuals on board, are for the time being submitted to the discipline of the captor, just as private individuals on occupied enemy territory are submitted to the authority of the occupant.[363] Seizure of private enemy vessels does not, however, vest the property finally in the hands of the belligerent[364] whose forces effected the capture. The prize has to be brought before a Prize Court, and it is the latter's confirmation of the capture through adjudication of the prize which makes the appropriation by the capturing belligerent final.[365]

[Footnote 363: Concerning the ultimate fate of the crew, see above, § 85.]

[Footnote 364: It is asserted that a captured enemy merchantman may at once be converted by the captor into a man-of-war, but the cases of the _Ceylon_ (1811) and the _Georgina_ (1814), 1 Dodson 105 and 397, which are quoted in favour of such a practice, are not decisive. See Higgins, _War and the Private Citizen_ (1912), pp. 138-142.]

[Footnote 365: See below, § 192.]

On the other hand, the effect of seizure of _public_ enemy vessels is their immediate and final appropriation. They may be either taken into a port or at once destroyed. All individuals on board become prisoners of war, although, if perchance there should be on board a private enemy individual of no importance, he would probably not be kept for long in captivity, but liberated in due time.

As regards goods on captured public enemy vessels, there is no doubt that the effect of seizure is the immediate appropriation of such goods on the vessels concerned as are enemy property, and these goods may therefore be destroyed at once, if desirable. Should, however, neutral goods be on board a captured enemy public vessel, it is a moot point whether or no they share the fate of the captured ship. According to British practice they do, but according to American practice they do not.[366]

[Footnote 366: See, on the one hand, the _Fanny_ (1814), 1 Dodson, 443, and, on the other, the _Nereide_ (1815), 9 Cranch, 388. See also below, § 424, p. 542 note 2.]

[Sidenote: Immunity of Vessels charged with Religious, Scientific, or Philanthropic Mission.]

§ 186. Enemy vessels engaged in scientific discovery and exploration were, according to a general international usage in existence before the Second Peace Conference of 1907, granted immunity from attack and seizure in so far and so long as they themselves abstained from hostilities. The usage grew up in the eighteenth century. In 1766, the French explorer Bougainville, who started from St. Malo with the vessels _La Boudeuse_ and _L'Étoile_ on a voyage round the world, was furnished by the British Government with safe-conducts. In 1776, Captain Cook's vessels _Resolution_ and _Discovery_, sailing from Plymouth for the purpose of exploring the Pacific Ocean, were declared exempt from attack and seizure on the part of French cruisers by the French Government. Again, the French Count Lapérouse, who started on a voyage of exploration in 1785 with the vessels _Astrolabe_ and _Boussole_, was secured immunity from attack and seizure. During the nineteenth century this usage became quite general, and had almost ripened into a custom; examples are the Austrian cruiser _Novara_ (1859) and the Swedish cruiser _Vega_ (1878). No immunity, however, was granted to vessels charged with religious or philanthropic missions. A remarkable case occurred during the Franco-German war. In June, 1871, the _Palme_, a vessel belonging to the Missionary Society of Basle, was captured by a French man-of-war, and condemned by the Prize Court of Bordeaux. The owners appealed and the French Conseil d'État set the vessel free, not because the capture was not justified but because equity demanded that the fact that Swiss subjects owning sea-going vessels were obliged to have them sailing under the flag of another State, should be taken into consideration.[367]

[Footnote 367: See Rivier, II. pp. 343-344; Dupuis, No. 158; and Boeck, No. 199.]

The Second Peace Conference embodied the previous usage concerning immunity of vessels of discovery and exploration in a written rule and extended the immunity to vessels with a religious or philanthropic mission, for article 4 of Convention XI. enacts that vessels charged with religious, scientific, or philanthropic missions are exempt from capture.

It must be specially observed that it matters not whether the vessel concerned is a private or a public vessel.[368]

[Footnote 368: See U.S. Naval War Code, article 13. The matter is discussed at some length by Kleen, II. § 210, pp. 503-505. Concerning the case of the English explorer Flinders, who sailed with the vessel _Investigator_ from England, but exchanged her for the _Cumberland_, which was seized in 1803 by the French at Port Louis, in Mauritius, as she was not the vessel to which a safe-conduct was given, see Lawrence, § 185.]

[Sidenote: Immunity of Fishing-boats and small boats employed in local Trade.]

§ 187. Coast fishing-boats, in contradistinction to boats engaged in deep-sea fisheries, were, according to a general, but not universal, custom in existence during the nineteenth century, granted immunity from attack and seizure so long and in so far as they were unarmed and were innocently employed in catching and bringing in fish.[369] As early as the sixteenth century treaties were concluded between single States stipulating such immunity to each other's fishing-boats for the time of war. But throughout the seventeenth and eighteenth centuries there were instances of a contrary practice, and Lord Stowell refused[370] to recognise in strict law any such exemption, although he recognised a rule of comity to that extent. Great Britain has always taken the standpoint that any immunity granted by her to fishing-boats was a relaxation[371] of strict right in the interest of humanity, but revocable at any moment, and that her cruisers were justified in seizing enemy fishing-boats unless prevented therefrom by special instructions on the part of the Admiralty.[372] But at the Second Peace Conference she altered her attitude, and agreed to the immunity not only of fishing vessels, but also of small boats employed in local trade. Article 3 of Convention XI. enacts, therefore, that vessels employed exclusively in coast fisheries, and small boats employed in local trade, are, together with appliances, rigging, tackle, and cargo, exempt from capture.

[Footnote 369: The _Paquette Habana_ (1899), 175, United States, 677. See U.S. Naval War Code, article 14; Japanese Prize Law, article 3 (1).]

[Footnote 370: The _Young Jacob and Joanna_ (1798), 1 C. Rob, 20.]

[Footnote 371: See Hall, § 148.]

[Footnote 372: See Holland, _Prize Law_, § 36.]

It must be specially observed that boats engaged in deep-sea fisheries and large boats engaged in local trade do not enjoy the privilege of immunity from capture, and that the fishing vessels and small boats employed in local trade lose that privilege in case they take any part whatever in hostilities. And article 3 expressly stipulates that belligerents must not take advantage of the harmless character of the said boats in order to use them for military purposes while preserving their peaceful appearance.

[Sidenote: Immunity of Merchantmen at the Outbreak of War on their Voyage to and from a Belligerent's Port.]

§ 188. Several times at the outbreak of war during the nineteenth century belligerents decreed that such enemy merchantmen as were on their voyage to one of the former's ports at the outbreak of war, should not be attacked and seized during the period of their voyage to and from such port. Thus, at the outbreak of the Crimean War, Great Britain and France decreed such immunity for Russian vessels, Germany did the same with regard to French vessels in 1870,[373] Russia with regard to Turkish vessels in 1877, the United States with regard to Spanish vessels in 1898, Russia and Japan with regard to each other's vessels in 1904. But there is no rule of International Law which compels a belligerent to grant such days of grace, and it is probable that in future wars days of grace will not be granted. The reason is that the steamboats of many countries are now built, according to an arrangement with the Government of their home State, from special designs which make them easily convertible into cruisers, and that a belligerent fleet cannot nowadays remain effective for long without being accompanied by a train of transport-vessels, colliers, repairing-vessels, and the like.[374]

[Footnote 373: See, however, above, § 178, p. 222.]

[Footnote 374: This point is ably argued by Lawrence, _War_, pp 54-55.]

In case, however, merchantmen, other than those constructed on special lines in order to make them easily convertible into cruisers, are, at the outbreak of war, on their voyage to an enemy port and are ignorant of the outbreak of hostilities, article 3 of Convention VI.[375] of the Second Peace Conference must find application. They may not, therefore, be confiscated, but may only be captured on condition that they shall be restored after the conclusion of peace, or that indemnities shall be paid for them if they have been requisitioned or destroyed.

[Footnote 375: See above, § 102_a_, Nos. 3 and 4.]

[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 Ships.]

§ 190. According to the Hague Convention, which adapted the principles of the Geneva Convention to warfare on sea, hospital ships are inviolable, and therefore may be neither attacked nor seized; see below in §§ 204-209. Concerning the immunity of cartel ships, 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 ship at sea, is inviolable, and that, in case the ship 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-Fodéré, 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, _Traité des prises_, 2
vols. (1758-60), and _Commentaire sur l'ordonnance de 1681_, 2
vols. (1766)--Pistoye et Duverdy, _Traité 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, associated 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 instituted 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 institute 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 institution has come down to our times, and nowadays all maritime States either constitute permanent Prize Courts, or appoint them specially in each case of an outbreak of war. The whole institution 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 instituted by Municipal Law, and that the law they administer is Municipal 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 instituted by belligerents in any part of their territory or the territories of allies, but not on neutral territory. It would nowadays constitute a breach of neutrality on the part of a neutral State to allow the institution 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 constitution 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 Institute of International Law has in various meetings occupied itself with the whole matter of capture, and adopted a body of rules in the _Règlement 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 assist 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 circumstances 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 ship 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 ownership 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-Japanese War, Russian cruisers destroyed twenty-one captured Japanese 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 _Règlement international des prises maritimes_ of the Institute 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, ship 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 ship.]

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

[Footnote 390: See Takahashi, 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.]