Chapter XIX: Status of Property at Sea

105. +Vessels.+
(_a_) Public vessels.
(_b_) Private vessels.

106. +Goods.+

107. +Submarine Telegraphic Cables.+

§ 105. Vessels

Vessels may be classed as public, belonging to the state, and private, belonging to citizens of the state.

(_a_) =Public vessels= of a belligerent are liable to capture in any port or sea except in territorial waters of a neutral. The following public vessels are, however, exempt from capture unless they perform some hostile act:--

(1) Cartel ships commissioned for the exchange of prisoners.

(2) Vessels engaged exclusively in non-hostile scientific work and
in exploration.[320]

(3) Hospital ships, properly designated and engaged exclusively in
the care of the sick and wounded.

(_b_) =Private vessels= of the enemy are liable to capture in any port or sea except in territorial waters of a neutral. The following private vessels are, however, exempt from capture unless they perform some hostile act:--

(1) Cartel ships.

(2) Vessels engaged in explorations and scientific work.

(3) Hospital ships.

(4) Small coast fishing vessels. This exemption is not allowed to
deep sea fishing vessels.[321]

(5) Vessels of one of the belligerents in the ports of the other at
the outbreak of hostilities are usually allowed a specified time in
which to take cargo and depart. In the war between the United States
and Spain, 1898, Spanish vessels were allowed thirty days in which to
depart and were to be exempt on homeward voyage. Vessels sailing from
Spain for the United States ports before the declaration of war were
to be allowed to continue their voyages.[322] Spain allowed vessels of
the United States five days in which to depart.[323] It did not
prohibit the capture of such ships after departure. No provision was
made for vessels sailing from the United States for Spanish ports
before the declaration of war.

In the Prize Law of Japan, 1898, the following exemptions of enemy's vessels are made:--

"(1) Boats engaged in coast fisheries.

"(2) Ships engaged exclusively on a voyage of scientific discovery,
philanthropy, or religious mission.

"(3) Vessels actually engaged in cartel service, and this even when
they actually have prisoners on board.

"(4) Boats belonging to lighthouses."[324]

§ 106. Goods

In general all public goods found upon the seas outside of neutral jurisdiction are liable to capture. Works of art, historical and scientific collections are sometimes held to be exempt, and probably would not be captured.

Private hostile property at sea and not under the flag of a neutral is liable to capture unless such property consist of vessels, etc., exempt under § 105, (_b_).

Contraband of war under any flag, outside of neutral territory, and destined for the enemy, is liable to capture.

Neutral goods in the act of violating an established blockade may be captured.

Previous to the Treaty of Paris in 1856 great diversity in the treatment of maritime commerce prevailed. This treaty provided that:--

"The neutral flag covers enemy's goods, with the exception of contraband of war," and

"Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag."[325]

Nearly all the important states of the world acceded to these provisions except the United States and Spain, and both of these powers formally proclaimed that they would observe these provisions in the war of 1898.[326]

§ 107. Submarine Telegraphic Cables

The position of submarine telegraphic cables has in recent years become of great importance. Such a cable easily becomes an instrument of value in the carrying on the operations of war. A convention of representatives of the important states of the world met at Paris in 1884, and agreed upon rules for the protection of submarine cables.[327] Article XV. of this convention announces that, "It is understood that the stipulations of this convention shall in no wise affect the liberty of action of belligerents." The principles recognized in war seem to accord with Article 5 of the Naval War Code of the United States, which provides that:--

"The following rules are to be followed with regard to submarine
telegraphic cables in time of war irrespective of their ownership:--

"(_a_) Submarine telegraphic cables between points in the territory of
an enemy, or between the territory of the United States and that of an
enemy, are subject to such treatment as the necessities of war may
require.

"(_b_) Submarine telegraphic cables between the territory of an enemy
and neutral territory may be interrupted within the territorial
jurisdiction of the enemy.

"(_c_) Submarine telegraphic cables between two neutral territories
shall be held inviolable and free from interruption."[328]

There is reason to believe that a submarine cable connecting the enemy's country with a neutral country is liable to such censorship as will render it neutral; and if this cannot be secured, it is liable to interruption outside of neutral jurisdiction, otherwise it might become a most dangerous organ of unneutral service.[329]