XXXII The Declaration of London adopted the position that while the CHAP. mere carriage of persons belonging to the armed forces of the enemy afforded no ground for capture of the vessel, such individuals could be removed from the neutral vessel and made prisoners of war. If, however, the vessel was undertaking a voyage for the express purpose of transporting individual passengers embodied in the armed forces of the enemy, or if it was, with knowledge, transporting a military detachment of the enemy, it was liable to condemnation. The more serious offense of hiring itself out to the enemy placed the neutral vessel in the class of a merchant vessel of the enemy. In the case of the Manouba, a French steamer was taken into port by an Italian cruiser in 1912 and made to surrender a number of passengers of Turkish nationality. The Hague Court of Arbitration, to which the case was referred, decided that there was sufficient ground for believing that the passengers were members of the Turkish armed forces to warrant the demand for their surrender.3 Reservists during the During the World War the status of reservists gave rise to a number of controversies. In October, 1914, the Spanish steamship World War Federico was captured and confiscated by the French for having undertaken to transport from Barcelona to Genoa German and Austro-Hungarian passengers the majority of whom belonged by their ages to the classes mobilized by their governments. In November, 1914, a citizen of German birth, Piepenbrink, a steward on board an American steamer, was removed by a French cruiser and held prisoner. The United States demanded his release on the ground that he had declared his intention to become an American citizen, and claimed further that, irrespective of his citizenship, he was not to be regarded as "embodied in the armed forces of the enemy" as provided by the Declaration of London.5 Again, the United States protested against the forcible removal in 1915 from the American steamship China of a number of German and other enemy subjects who, it was claimed by the British Government, were agents in the service of the enemy." 1756 A special form of unneutral service, now possessing only his- The Rule of torical interest, was responsible for the introduction of the doctrine of continuous voyage. By the Rule of 1756 Great Britain forbade 1 Art. 47. 2 Art. 45. 8 Scott, Hague Court Reports, 341. Stowell and Munro, Cases, II, 453. French Prize Court, 1915. Scott, Cases, 886. Garner, op. cit., II, 371. Am. White Book, II, 133 ff. For a discussion of the general subject, see Garner, op. cit., II 362-374. CHAP. f. Visit and search Convoy neutral merchants to engage in time of war in the commerce between enemy colonial ports and the mother-country which was closed to them in time of peace. In the leading case of the William,1 an American vessel had shipped its cargo at La Guaria and had then taken it to Marblehead, Massachusetts, where it was unloaded and then reshipped. Being captured en route to Bilboa, Spain, the vessel and cargo were condemned on the ground that the voyage from La Guaria to Bilboa, although broken, was in reality one continuous voyage.2 More serious than the offense of a neutral ship which carries enemy despatches or enemy troops is the offense of engaging in the service of the enemy by taking part in hostilities, or by acting under orders of the enemy government or under contract with the enemy government. Such acts, according to the Declaration of London, place the neutral vessel in the class of enemy merchant vessels. 3 An incident to the right of a belligerent state to capture enemy vessels and neutral contraband goods is the right of belligerent warships to visit and search all vessels encountered upon the high seas. Notice of an intention to visit and search is given by firing a blank charge, or, if necessary, a shot across the bows. Resistance to visit and search on the part of neutral vessels, or the attempt to escape by flight, subjects them to the same penalties which are inflicted upon belligerent vessels. Evidence of fraud in the vessel's papers is a ground for seizure irrespective of the character of the cargo. International practice varied before 1909 in respect to the status of a neutral vessel under convoy of public armed ships. Obviously, if the latter were enemy ships, to keep in their company would be equivalent to resistance. What if they were neutral public ships? In the leading case of the Maria a Swedish merchantman, sailing under convoy of a Swedish ship of war, was condemned on the ground of sharing impliedly in the resistance offered by the frigate. On the other hand, continental states held 5 15 C. Rob., 385 (1806). Scott, Cases, 982; Evans, 725. 'See also the cases of the Emanuel, 1 C. Rob., 296 (1799), and the Immanuel, 2 C. Rob., 186 (1799). Scott, Cases, 926, 928. For an analogous case in which a breach of neutrality was made the ground of confiscation, see Darby v. The Brig Erstern, decided by the Federal Court of Appeals of the United States, 2 Dallas, 34. Scott, Cases, 880. Art. 46. See above, p. 511. The customary rule was confirmed by the Declaration of London, Art. 63. 1 C. Rob., 340 (1799). Scott, Cases, 1003; Evans, 535. XXXII in general that neutral merchantmen were exempt from visit and CHAP. search when under convoy of warships of their own nationality. This latter position was taken by the Declaration of London,' but even in the absence of that agreement the British practice had lost its point, owing to the better observance of neutrality by neutral governments. tion of prizes Is it permissible for a belligerent to destroy neutral vessels g. Destruc which, after visit and search on the high seas, are found to be liable neutral to confiscation? Until the beginning of the twentieth century international practice, while permitting the destruction of enemy vessels, required that captured neutral vessels be brought before a prize court for condemnation, and that if this could not be done they be released. During the Russo-Japanese War the Russian navy sank a number of neutral prizes, notably the Knight Commander, a British vessel carrying a cargo of contraband to Japan. Compensation was refused by the Russian Prize Court. At the second Hague Conference, and again at the London Naval Conference, a number of powers supported the position that neutral vessels could be sunk in case of imperative necessity. A compromise was agreed upon in the Declaration of London, which provided that as a general principle neutral prizes were not to be destroyed, but as an exception they might be destroyed if the act of taking them into port "would involve danger to the warship or to the success of the operations in which she is engaged at the time." Further provisions sought to regulate the conditions under which the destruction should be carried out. The wide latitude of judgment left to belligerents by the provisions of the Declaration was, however, generally regarded by commentators as equivalent to giving the belligerent carte blanche to destroy. 5 During the World War the few German cruisers roaming at large found it impossible to bring their neutral prizes to port. On January 28, 1915, an American vessel, the William P. Frye, sailing from Seattle to Queenstown with a cargo of wheat, was captured by a German cruiser and sunk at sea. The United States protested on the ground that the destruction of the Frye was in 1 Art. 61, 62. See the dicta of the court in the cases of the Dodson, 48, 381 (1815, 1819), both enemy vessels. Hurst and Bray, Russian and Japanese Prize 793. Acteon and the Felicity, 2 • Compare U. S. Naval War Code, 1900, Art. L. Also Instructions Governing Maritime Warfare, 1917, No. 96. Cases of destruction during the World War Art. 49. Art. 50-54. CHAP. XXXII h. Prize courts violation of the treaties of 1799 and 1828. Germany contested the interpretation of the treaties, and further defended the capture on the ground that the cargo, being destined to fortified ports, was conditional contraband.1 In its controversy with Holland over the sinking of the Maria and the Medea, Dutch vessels carrying conditional contraband, the German Government relied upon the provisions of the Declaration of London as corresponding "in substance with the generally recognized principles of international law," although not formally ratified." The determination of the legality of the capture by a belligerent of enemy or neutral merchant vessels and of their liability to confiscation rests with the prize courts of the belligerent state. These courts are domestic tribunals, organized and exercising their functions in accordance with the provisions of national legislation. But although the authority and jurisdiction of prize courts is derived from national law, the rules which they apply to the cases coming before them are the rules of international law, except in so far as special national legislation may have prescribed a particular interpretation of these rules. As a matter of fact, national legislation has frequently intervened to direct the judgment of prize courts, and their decisions must be discounted to that extent when Icited as evidence of international law. 5 Since it is a violation of neutrality for a belligerent to set up a prize court in the ports of a neutral state, the decision of such a court would not be accepted by third states as passing title to the condemned property. In the case of the Flad Oyen the British High Court of Admiralty refused to recognize the title of a Danish purchaser who had bought a ship condemned as prize by the French consul in the neutral port of Bergen. Owing to the numerous controversies between belligerents and neutral states arising from the diverse interpretation of interna 'Am. White Book, II, 185 ff., III, 311 ff. See above, p. 537. See Garner, op. cit., II, 271. The classic statement of the functions of prize courts is that given in the case of the Maria, 1 C. Rob., 340 (above, p. 550): "I trust that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me;-namely, to consider myself as stationed here not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out, without distinction, to independent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality.' 1 C. Rob., 135 (1799). Scott, Cases, 1070; Evans, 606. XXXII Prize of 1907 tional law by belligerent prize courts, as well as from contested CHAP. points of fact, proposals were made from time to time looking to the creation in time of war of prize courts upon which neutral The Interstates as well as both belligerents would be represented. These national efforts culminated in the adoption by the Second Hague Confer- Court ence of the Convention (XII) relative to the Establishment of an International Prize Court, based chiefly upon German and British drafts presented to the conference. The convention, although not signed by all the powers, and not ratified by any, is of sufficient importance as a constructive proposal to merit study. It provided that, while national courts should continue to exercise original jurisdiction over prize cases, an appeal might be taken in all cases involving the property of neutrals and in certain cases involving enemy property." This appeal might be brought by a neutral power, by a neutral individual, or by an enemy individual according to the conditions laid down. The law to be applied by the court was, in the absence of treaty provisions, to be "the rules of international law." If no generally recognized rule existed, the court was to give judgment "in accordance with the general principles of justice and equity." It was the uncertainty attaching to the law to be applied by the court that led to the calling of the London Naval Conference and the formulation of the Declaration of London as a definite code of naval warfare." of the The composition of the court was the result of a compromise Composition between the claim of the smaller states to equal representation and court the obvious impossibility of a court representing the entire body of states. Judges and deputy judges were to be appointed by each state, and from among these a court of fifteen judges was to be set up, eight of whom, representing the Great Powers, were to be permanent members. The other seven were to be occasional members sitting by rotation according to a table annexed to the convention, which gave a longer or shorter term to the lesser states according to the rank assigned to them. This practical denial of the principle of the equality of states led to the refusal of a number of states, notably Brazil, to sign the convention, while eleven other states signed with reservation of the offending article. Ratification of the convention was delayed pending a more definite understanding as to the law to be applied by the court." For details, see Oppenheim, International Law, II, 559 ff. 'Art. 1, 2, 3. • Art. 7 6 Art. 10, 14, 15. 'Art. 4. "See above, p. 29. |