belligerents have allowed varying periods, though it is generally recognized that some period should be allowed to innocent private vessels, 10 but not to private vessels adapted for conversion into war vessels or under subsidy for war purposes. 11

The treatment of enemy merchant ships at the outbreak of hostilities was considered at the Hague Conference in 1907 and a convention was signed.12 This convention states that it is desirable that a reasonable number of days of grace should be allowed for merchant vessels in an enemy port or bound for an enemy port at the outbreak of hostilities. The number of days is not determined. Such vessels kept in an enemy port by force majeure may be interned without compensation or appropriated on payment of compensation. Vessels which have left port before the outbreak of war and are encountered on the high seas while still ignorant of the commencement of war are entitled to similar treatment.13

They may be detained till the end of the war without compensation or appropriated subject to payment of compensation. The crew, passengers, and ship's papers must be placed in safety.

These exemptions do not apply in case the vessel has touched at a port after the outbreak of hostilities.

GOODS IN GENERAL.

125. In general, when on the sea and unless under a neutral flag, the private goods of one belligerent are liable to capture by the other belligerent.

14

The modifications in the severity of treatment of property on land have not extended to property at sea, but the attitude toward property at sea in time of war has depended

10 The Buena Ventura, 175 U. S. 384, 20 Sup. Ct. 148, 44 L. Ed. 206.

11 The Panama, 176 U. S. 535, 20 Sup. Ct. 480, 44 L. Ed. 577. 12 Convention Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities.

13 Id. arts. 1-3.

14 Bentwich, War and Private Property, pp. 79–96.

rather upon policy than upon law. The United States has consistently favored the exemption of merchant vessels and their cargoes from capture. Franklin, in 1783, said of the principle of exemption from capture of private property at sea in time of war: "I rather wish than expect it will be adopted." 15 President Monroe, in his message of December 2, 1823, and President Pierce, in his message of December 4, 1854, advocate agreements for the abolition of the right to capture private property at sea, and in 1856 President Pierce proposed as a condition under which the United States would ratify the Declaration of Paris, by which "privateering is and remains abolished," the addition of the clause: "The private property of subjects and citizens of a belligerent on the high seas shall be exempt from seizure by public armed vessels of the other belligerent except it be contraband." The Congress of the United States resolved on April 28, 1904: "That it is the sense of the Congress of the United States that it is desirable, in the interest of uniformity of action by the maritime states of the world in time of war that the President endeavor to bring about an understanding among the principal maritime powers with a view of incorporating into the permanent law of civilized nations the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerents." The American delegation at the Hague Conference of 1907 endeavored to secure the exemption of innocent private property at sea during war.

Professor Westlake, after referring to the fact that the United States and some other states have advocated the policy of exemption of enemy property at sea, says: "On principle we must say that the capture at sea of enemy property as such is a military measure, an operation of war, and that its defense is therefore independent of the medieval doctrine of the solidarity of sovereigns and states with their subjects, on which the civil courts maintain the doctrines of nonintercourse and even perhaps of confiscation. Its justification must lie in its effect on the fortunes of a war. To appreciate that effect, it is not sufficient to consider the damage done to the pecuniary resources of a belligerent power by seizing and ap

15 Franklin labored for this in 1781. 9 Works (Sparks' Ed.) p. 469,

propriating the property of those from whom it can levy taxes and cutting off their opportunities of trade. It must also be remembered that the capture of enemy ships has always carried with it the right to detain their crews as prisoners. Indeed the doctrine of 'courir sus aux ennemis' was from the first as much directed against persons as against things. Hence the existing practice deprives the enemy of important resources, both of ships which might be available as transports or for purposes of supply, and of men who might render service on board ships so employed or in the fighting navy, and, indeed, would in general be legally compellable to do so." 16

In Atlay's edition of Wheaton's International Law, in 1904, the position against the exemption from capture of private property at sea is stated as follows: "The indiscriminate seizure of private property on land would cause the most terrible hardship, without conferring any corresponding advantage on the invader. It cannot be effected without in some measure relaxing military discipline, and is sure to be accompanied by violence and outrage. On the other hand, the capture of merchant vessels is usually a bloodless act; most merchant vessels being incapable of resisting a ship of war. Again, property on land consists of endless varieties, much of it being absolutely useless for any hostile purpose, while property at sea is almost always purely merchandise, and thus is part of the enemy's strength. It is, moreover, embarked voluntarily, and with a knowledge of the risk incurred, and its loss. can be covered by insurance. An invader on land can levy contributions or a war indemnity from a vanquished country. He can occupy part of its territory and appropriate its rates and taxes; and by these and other methods he can enfeeble the enemy and terminate the war. But in a maritime war a belligerent has none of these resources, and his main instrument of coercion is crippling the enemy's commerce. If war at sea were to be restricted to the naval forces, a country possessing a powerful fleet would have very little advantage over a country with a small fleet or with none at all. If the enemy kept his ships of war in port, a powerful fleet, being unable to operate against commerce, would have little or no occupation.

16 Westlake, Int. Law, pt. II, War, p. 130.

The United States proposed to add to the Declaration of Paris a clause exempting all private property on the high seas from seizure by public armed vessels of the other belligerent, except it be contraband; but this proposal was not acceded to. Nor does it seem likely, for the reasons stated above, that maritime nations will forego their rights in this respect.

"On the other hand, the enormous extension of railways, the increase of the practice of marine insurance, and the dependence of the greatest naval power in the world upon an ocean-borne food supply, have deprived many of the older arguments in favor of the retention of the claim to capture private property at sea of their force, while at the same time it has inclined many persons in Great Britain, more especially those interested in shipping, to look favorably on a proposed abandonment of the claim." 17

Property subject to capture at sea occupies an entirely different position from that of property on land. In enforcing requisitions of private property on land, it is usual to limit the property taken to such as will be useful to the captor for the purposes of war. In taking this property the noncombatant population is deprived of material necessary for the support of themselves or their animals. On the other hand, the reasons urged in support of the right to take property at sea are that only the material interests suffer, and no personal suffering is inflicted. Again, such property is shipped by the owners with the intention and idea of deriving a profit from the enterprise. The risks of war are appreciated and understood, and can be provided for by means of insurance. It is in the custody of men trained and paid for the purpose; and the sea, upon which it is sent, is res omnium, the common field of war as well as of commerce. The objections, therefore, that exist to the capture of private property on land, do not apply with like force to property at sea, yet the effect of captures at sea in deranging the trade of the enemy is very much greater than that consequent upon the enforcing of requisitions, and often leads to urgent demands on the part of influential merchants for an early termination of the war.

The effect of the old general rule of capture of all enemy

17 Wheaton, Int. Law (Atlay's Ed.) § 355b.

property was modified by the Declaration of Paris, to the extent that "the neutral flag covers enemy's goods, with the exception of contraband of war." 18

There are divergent opinions upon what determines the enemy character of goods. The English courts have decided that the liability to capture extends, not merely to the goods of those who owe allegiance to the belligerent state, but also to those who have commercial domicile in the belligerent state,19 while the property of those who are domiciled in a neutral state is exempt.20

The European continental opinion is divided. Certain states regard the domicile of the owner as the test of the liability of the property to capture, as in the English precedents; while other states follow the French doctrine, that the nationality of the owner, and not the domicile, determines the liability of the property to capture.21 Japan has followed a modified form of the rule of domicile. The United States has generally followed the law of domicile as determining enemy character. Long discussions at the London Naval Conference in 1908-09 did not result in agreement upon the basis which should decide character of property, beyond the rule that (article 58) "the neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of the owner." The report of the conference says: “But it cannot be concealed that article 58 solves no more than a part of the problem, and that the easier part. It is the neutral or enemy character of the owner which determines the character of the goods; but what is to determine the neutral or enemy character of the owner? On this point nothing is said, because it was found impossible to arrive at an agreement."

22

The English courts have decided that the enemy character of goods is determined by the domicile of the owner, though a man's business may have domicile in more than one state, and "if he acts as a merchant of both he must be liable to be con

18 Declaration of Paris, 1856, Appendix, p. 487.

19 The Harmony, 2 C. Rob. 322.

20 4 C. Rob. 255, note.

211 Pistoye et Duverdy, Traite des Prises Maritimes, p. 321. 22 British Parl. Papers, Misc. No. 4 (1909) p. 61.