CHAPTER XV. PROPERTY ON THE WATER. 119. Public Property of Belligerents on the Water-Vessels. Goods. 120. 121. 122. 123. 124. Private Property of Belligerents on the Water-Vessels. Vessels Exempt by Occupation. Vessels Exempt, by Delai de Faveur. 125. Goods in General. 126. Means of Telegraphic Communication. PUBLIC PROPERTY OF BELLIGERENTS ON THE WA TER-VESSELS. 119. Public vessels of a belligerent outside of neutral jurisdiction are liable to capture, unless specially exempt. The following vessels, when innocently employed, are exempt: (1) Cartel ships commissioned for the exchange of prisoners. (2) Vessels charged with religious, scientific, and philanthropic missions. (3) Duly authorized hospital ships. War on land is in the main aimed at the submission of the enemy army. War on the sea aims, not merely at the defeat of the enemy navy, but also at the destruction of the enemy's commerce and means of communication and the weakening or destruction of the enemy's means of defense and support. Much greater freedom is allowed in the treatment of enemy property on the water than on land. Where in land warfare attack is mainly on armed enemy individuals, on the sea attack is mainly upon vessels. The public vessels of the enemy are special objects of attack in warfare on the sea. All such vessels as are not specifically engaged in nonmilitary occupations, which serve both belligerents alike or serve the world at large, are liable to capture. The number of such vessels would be comparatively small and includes: (1) Cartel ships serving both belligerents alike. (2) Vessels engaged in work for the good of humanity in general. (3) Hospital ships.1 The Japanese, in the war with China, in 1893, and in the war with Russia, in 1904, also exempted "lighthouse vessels and tenders." SAME GOODS. 120. Public goods of a belligerent are liable to capture outside of neutral jurisdiction. Goods belonging to an enemy state would in general be liable to capture on the sea, if not under a neutral flag. Probably exemptions analogous to those in case of land warfare would hold in case of works of art, archives, historical and scientific collections, and the like. PRIVATE PROPERTY OF BELLIGERENTS ON THE WA TER-VESSELS. 121. Private vessels of the belligerent outside of neutral jurisdiction are liable to capture unless specially exempt. There have been attempts to bring about the general exemption from capture of all innocently employed private vessels. In 1783 Franklin sent an article to Oswald, which he rather wished than expected would be adopted in the treaty with Great Britain, to the effect that "all merchants or traders, with their unarmed vessels employed in commerce, exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to obtain and more general, shall be allowed to pass freely, unmolested." 2 The treaty between the United States and Prussia of 1785 contained the following: "All merchant and trading vessels employed in exchanging the products of differ 1 Hague Convention, 1907, Naval War and Geneva Convention, art. 1, Appendix, p. 549. 29 Sparks, Works of Franklin, p. 469. ent places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to be obtained and more general, shall be allowed to pass free and unmolested; and neither of the contracting powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce." The treaty between Italy and the United States of February 26, 1871, now in force, provides in article 12: "The high contracting parties agree that in the unfortunate event of a war between them the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or by the military forces of either party; it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party." The question received much attention at the time of the Declaration of Paris in 1856 and again at the Hague Conferences of 1899 and 1907; but exemption of private vessels from capture is not yet secured. SAME-VESSELS EXEMPT BY SERVICE. 122. Certain private vessels of belligerents are exempt from capture because of the nature of their service: (a) Cartel ships. (b) Hospital ships. (c) Ships engaged in religious, scientific, or philanthropio work. (a) Cartel vessels belonging to private citizens of the belligerents engaged in the exchange of prisoners are exempt from capture while employed according to the cartel agreement, by which they serve both belligerents alike. (b) Hospital ships serve those in need of their assistance without distinction as to nationality, and hence it is of mutual advantage that they be exempt from capture.3 3 Hague Convention, 1907, Naval War and Geneva Convention, arts. 2-4, Appendix, p. 549. (c) The vessels charged with religious, scientific, or philanthropic missions serve humanity in general, and are therefore exempt.* SAME VESSELS EXEMPT BY OCCUPATION. 123. Certain private vessels of belligerents are exempt from capture because of the nature of their occupations: (a) Coast fishing vessels innocently employed. (b) Small vessels employed in local trade. (a) After an extended review of the authorities, Mr. Justice Gray, delivering the opinion of the United States Supreme Court in 1900, said: "This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. "The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way."5 This exemption does not apply to deep-sea fishing vessels." (b) Small boats, employed in local trade, with their appli 4 Hague Convention, 1907, Right of Capture in Naval War, art. 4, Scott, Peace Conferences, p. 283. 5 The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320; Hague Convention, 1907, Right of Capture in Naval War, art. 3, Scott, Peace Conferences, p. 283. The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed ances, rigging, tackle, and cargo, are exempt from capture so long as they are innocently employed." The exemption of coast fishing vessels and small boats engaged in local trade, secured by the Hague Convention of 1907, was, according to the report of the American delegation, "to give to the better practice the sanction of conventional obligation and to include small nonsea-going vessels, exclusively engaged in the coast trade, within its beneficial operation." SAME VESSELS EXEMPT BY DELAI DE FAVEUR. 124. Private vessels of one belligerent, not intended for conversion into war ships, within or bound for the ports of the other belligerent at the outbreak of war, are usually allowed a certain number of days (days of grace, delai de faveur) before becoming liable to capture, and in case such vessels are unable to leave port at the expiration of the period they may be interned, and are restored at the end of the war. The idea of allowing a degree of favor to enemy private vessels in port at the outbreak of war is not new. Molloy, in the seventeenth century, wrote: "If the ships of any nation happen to arrive in any of the king of England's ports, and afterwards, and before their departure, a war breaks out, they may be secured, privileged without harm of body or goods; but under this limitation, till it be known to the king how the prince or republick of those whose subjects the parties are have used and treated those of our nation in their ports. But if any should be so bold as to visit our ports after a war is begun, they are to be dealt with as enemies." 8 Later practice has not been uniform.' Proclamations of 7 Hague Convention, 1907, Right of Capture in Naval War, art. 3, Scott, Peace Conferences, p. 283. De Jure Maritimo, bk. I, c. 1, XVII. • French Declaration, March 27, 1854, six weeks; British Declaration, March 29, 1854, six weeks; Spanish Decree, April 23, 1898, five days; United States Proclamation, April 25, 1898, thirty days; Japanese Ordinance, Feb. 9, 1904, seven days; Russian Rules, Feb. 14, 1904 (except in Far East), forty-eight hours. WILS. INT.L.-19 |