of both the contracting parties on the high seas, they have agreed mutually that, whenever a vessel of war shall meet with a vessel not of war of the other contracting party, the first shall remain at a convenient distance, and may send its boat with two or three men only, in order to execute the said examination of the papers, concerning the ownership and cargo of the vessel, without causing the least extortion, violence, or ill treatment, and it is expressly agreed that the unarmed party shall in no case be required to go on board the examining vessel for the purpose of exhibiting his papers, or for any other purpose whatever." " The method prescribed for the United States naval forces in the Spanish-American War, in 1898, was as follows: "The right should be exercised with tact and consideration, and in strict conformity with treaty provisions, wherever they exist. The following directions are given, subject to any special treaty stipulations: After firing a blank charge, and causing the vessel to lie to, the cruiser should send a small boat, no larger than a whale boat, with an officer to conduct the search. There may be arms in the boat, but the men should not wear them on their persons. The officer, wearing only his side arms, and accompanied on board by not more than two men of his boat's crew, unarmed, should first examine the vessel's papers to ascertain her nationality and her ports of departure and destination. If she is neutral, and trading between neutral ports, the examination goes no further. If she is neutral, and bound to an enemy's port not blockaded, the papers which indicate the character of her cargo should be examined. If these show contraband of war, the vessel should be seized; if not, she should be set free, unless, by reason of strong grounds of suspicion, a further search should seem to be requisite."7 The Japanese Regulations Governing Captures at Sea, published in 1904, provide that "the boarding officer, before he leaves the vessel, shall ask the master whether he has any complaint regarding the procedure of visiting or searching, or any other points, and if the master makes any complaints he • Article 18, 17 Stat. 854. 7 General Order 492, U. S. Navy Dept. June 20, 1898, No. 13. shall request him to produce them in writing." 8 If the firing of the blank charge is not sufficient to cause a vessel to lie to, a shot may be fired across the bows; and, if this is not sufficient, the warship may use necessary force. EXEMPTION FROM AND LIMITATION OF VISIT AND SEARCH. 180. (a) Public vessels of the neutral are exempt from visit and search. (b) And neutral vessels under convoy of public vessels are generally exempt on proper assurances from the commander of the convoy. (c) Neutral mail ships are searched only in case of necessity. (a) Public vessels of the neutral, as representing the sovereignty, are exempt from visit and search. The word of the commander must be accepted as to the character of the vessel. Within the theater of actual hostile operations the movements of a neutral public vessel may necessarily be controlled, or the vessel may be approached in order to ascertain its identity. (b) The exemption from visit and search of neutral merchant vessels under convoy of a neutral warship is generally granted upon proper assurance. "The verbal declaration of the commander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries, and, when bound to an enemy's port, that they have no contraband goods on board, shall be sufficient." In case of grave suspicion, however, visit and search of a convoyed vessel is permissible. Up to 1908, Great Britain was unwilling to concede the right of exemption to vessels under convoy.10 8 Article LXII. Treaty between United States and Italy, Feb. 26, 1871, Art. XIX, 17 Stat. 854. 10 Hall presented the English view as follows: "It is argued that the commander of a vessel of war in charge of a convoy represents his government, that his affirmation pledges the faith of his nation, and that the belligerent has a stronger guarantee in being assured by him that the vessels in company are not engaged in any illicit traffic than in examining for himself papers which may be fraudulent. But unless the neutral state is to exercise a minuteness of supervision over every ship issuing from her ports, which would WILS. INT.L.-26 (c) Claims have been made that mail vessels should be exempt. The parties to The Hague Convention of 1907, while exempting the mails, were able to agree only that "the ship, however, may not be searched, except when absolutely necessary, and then only with as much consideration and expedition as possible." 11 CONVOY. 181. Neutral vessels sailing under the escort of a neutral warship are in general exempt from visit and search, though the commander of the warship is under obligation to furnish necessary information in regard to the vessels under his escort. The so-called right of convoy is one which has been claimed for many years. Sweden claimed in the middle of the seventeenth century that neutral vessels under escort of a neutral warship were exempt from visit and search. From time to time during the following century the right was asserted, but it was not till toward the close of the eighteenth century that it received much consideration. After 1775 the right was frequently recognized in practice and acknowledged in treaties. While the Armed Neutrality of 1780 did not press the right of convoy, the Armed Neutrality of 1800 was largely due to the action of a British squadron in capturing a Danish warship which was convoying six merchant vessels. Great Britain probably be impossible, and which it is not proposed to exact from her, the affirmation of the officer commanding the convoy can mean no more than that the ostensible papers of the vessels belonging to it do not show on their face any improper destination or object. Assuming that the officials at the ports of the neutral country are always able and willing to prevent any vessel laden with contraband from joining a convoy, the officer in command must still be unable to affirm of the vessels under his charge that no single one is engaged in carrying enemy's dispatches or military passengers of importance, that none have an ultimate intention of breaking a blockade, or, if the belligerent nation acts on the doctrine that enemy's goods in a neutral vessel can be seized, that none of the property in course of transport in fact belongs to the enemy." Int. Law (5th Ed.) 724. At the International Naval Conference at London, 1908-09, Great Britain admitted the right of convoy. 11 Right of Capture in Naval War, art. II, Scott, Hague Conferences, p. 283. refused to recognize the right of convoy, even after the principle was generally accepted by the other nations. Great Britain at last admitted the right at the International Naval Conference in 1908-09. While the right was generally admitted, its exercise was guarded by making the commander of the convoying warship responsible. In theory he was to furnish to the commander of the belligerent warship the information which that commander would obtain by a visit and search of the vessels under his escort. It was frequently prescribed in treaties that the verbal declarations of the commander of the convoy, "on his word of honor, that the vessels under his protection belong to the nation whose flag he carries, and, when bound to an enemy's port, that they have no contraband goods on board, shall be sufficient." The Declaration of London, 1909, made the regulations in regard to convoy more definite, with the view to guarding the proper rights of neutrals without interfering with the rights of belligerents. While declaring that neutral vessels under national convoy are exempt from search, it makes it obligatory upon the commander of the convoy to furnish in writing the information which the commander of a belligerent warship might gain by a visit. Provision is also made for cases where the commander of the belligerent warship thinks the commander of the convoy may have been deceived. The belligerent commander may make known his suspicions to the convoying officer. "In such case it is for the commander of the convoy alone to investigate the matter. He must record the result of such investigation in a report, of which a copy is handed to the officer of the warship. If, in the opinion of the commander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of the convoy must be withdrawn from such vessels." 12 12 Appendix, p. 583, articles 61 and 62. GROUNDS OF CAPTURE. 182. The grounds for seizure of neutral private vessels are that the vessel or cargo is liable to confiscation, or that there is reasonable suspicion that the vessel is liable to confiscation. Such grounds exist: (a) In case of absence or irregularity of the ship's papers. (d) If the vessel breaks or attempts to break a blockade. (f) If the vessel is engaged in unneutral service. It is for the prize court to pronounce on the validity of the capture and to determine the penalty. If the commander making the capture has good reason to doubt the innocence of a vessel which he overhauls, he should send her to the prize court for adjudication. The grounds that would justify capture would not always be sufficient to condemn the neutral vessel or cargo. The prize court may pass upon evidence which the officer making the capture may not have, or may not feel it expedient to consider. His functions are administrative, and the judicial functions are properly left to the prize court. 13 (a) The papers usually on board a neutral merchant vessel are (1) the register; (2) the crew list; (3) the log book; (4) the bill of health; (5) the charter party; (6) invoices; (7) bills of lading. Not all states require the same papers, how The object of the officer visiting the vessel is to find out whether she is liable to capture. His object is in so far defeated as the papers are imperfect. The absence, destruction, defacement, evident falsification, or irregularity of any of the ship's papers is ground for capture, though the prize court may not consider this a sufficient ground for condemnation. 18 Prize courts deny damages or costs, as against captors, in cases of seizure made upon "probable cause"; that is to say, where there were circumstances sufficient to warrant suspicion, though not to warrant condemnation. The Thompson, 3 Wall. 155, 18 L. Ed. 55. |