International Law. A Treatise. Volume 2 (of 2) / War and Neutrality. Second Edition

§ 411. According to customary rules hitherto prevailing, as well as according to the Declaration of London, a neutral vessel may be captured if visit or search establish the fact, or grave suspicion of the fact, that she is rendering unneutral service to the enemy. And such capture may take place anywhere throughout the range of the Open Sea and the territorial maritime belt of either belligerent.

Stress must be laid on the fact that mail steamers are on principle not exempt from capture for unneutral service. Although, according to article 1 of Convention XI., the postal correspondence of belligerents as well as of neutrals, whatever its official or private character, found on board a vessel on the sea is inviolable,[875] and a vessel may never, therefore, be considered to be rendering unneutral service by carrying amongst her postal correspondence despatches containing intelligence for the enemy, a mail steamer is nevertheless—see article 2 of Convention XI.—not exempt from the laws and customs of naval war respecting neutral merchantmen. A mail boat is, therefore, quite as much as any other merchantman, exposed to capture for rendering unneutral service.

However this may be, capture is allowed only so long as the vessel is in delicto, that is during the time in which she is rendering the unneutral service concerned or immediately afterwards while she is being chased for having rendered unneutral service. A neutral vessel may not, therefore, be captured after the completion of a voyage specially undertaken for the purpose of transporting members of the armed forces of the enemy, or of transmitting intelligence for the enemy, or after having disembarked the military detachment of the enemy and the persons directly assisting the operations of the enemy in the course of the voyage whom she was transporting. And it must be specially emphasised that even such neutral vessel as had acquired—see article 46 of the Declaration of London—enemy character by rendering unneutral service, ceases to be in delicto after her unneutral service has come to an end. Thus, for instance, a neutral vessel which took a direct part in hostilities[876] may not afterwards be captured, nor may a vessel which has disembarked the agent of the enemy Government under whose orders or control she was navigating.

§ 412. According to the practice hitherto prevailing, a neutral vessel captured for carriage of persons or despatches in the service of the enemy could be confiscated. Moreover, according to British[877] practice, such part of the cargo as belonged to the owner of the vessel was likewise confiscated.[878] And if the vessel was not found guilty of carrying persons or despatches in the service of the enemy, and was not therefore condemned, the Government of the captor could nevertheless detain the persons as prisoners of war and confiscate the despatches, provided the persons and despatches concerned were in any way of such a character as to make a vessel, which was cognisant of this character, liable to punishment for transporting them for the enemy.

The Declaration of London recognises these three rules. Articles 45 and 46 declare any vessel rendering any kind of unneutral service to the enemy liable to confiscation, and likewise declare such part of the cargo as belongs to the owner of the confiscated vessel liable to confiscation. And article 47 enacts that, although a neutral vessel may not be condemned because there are no grounds for her capture, the capturing State may nevertheless detain as prisoners of war any members of the armed forces of the enemy who were found on board the vessel. The case of despatches found on board is not mentioned by article 47, but there ought to be no doubt—see below, § 413—that the old customary rule that, although the vessel may not be condemned because there is no ground for capture, any despatches for the enemy found on board may, in analogy with article 47, be confiscated, provided such despatches are not part of the postal correspondence carried on board.

It must be emphasised that the mere fact that a neutral vessel is rendering unneutral service, is not sufficient for her condemnation; for in addition mens rea is required. Now as regards the four kinds of unneutral service which create enemy character, mens rea is obviously always in existence, and therefore always presumed to be present. For this reason article 46, in contradistinction to article 45, does not mention anything concerning the knowledge by the vessel of the outbreak of hostilities. But as regards the other cases of unneutral service, article 45 provides that the vessel may not be confiscated if the vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the passengers concerned. On the other hand, a vessel is deemed, according to article 45, to be aware of the existence of a state of war if she left an enemy port subsequent to the outbreak of hostilities, or a neutral port subsequent to the notification of the outbreak of hostilities to the Power to which such port belongs, provided that such notification was made in sufficient time.

Although the Declaration of London metes out the same punishment for the several kinds of unneutral service which it enumerates, it nevertheless makes a distinction, apart from the penalty, with regard to the treatment of the vessels captured for rendering unneutral service.

Article 45 provides for a neutral vessel captured for having rendered either of the two kinds of unneutral service mentioned in this article a treatment which is, in a general way, the same as that for a neutral vessel captured for the carriage of contraband. This means that the vessel does not lose her neutral character, and must under all circumstances and conditions be taken before a Prize Court, unless—see article 49 of the Declaration of London—the taking of her into a port of the capturing State would involve danger to the safety of the capturing vessel or to the success of the military operations in which she is engaged at the time. And an appeal from the national Prize Courts may be brought to the International Prize Court.

Article 46, on the other hand, provides, apart from the penalty, a treatment for a vessel captured for having rendered any of the four kinds of unneutral service enumerated in this article which, in a general way, is the same as that for a captured enemy merchantman. This means that such vessel acquires enemy character. Accordingly (see above, § 89) all enemy goods on the vessel may be seized, all goods on board will be presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Further, the rules of articles 48 and 49 of the Declaration of London concerning the destruction of neutral vessels do not apply. Again, no appeal may be brought from the national Prize Courts to the International Prize Court by the owner of the ship except concerning the one question only, namely, whether the act of which she is accused has the character of unneutral service.[879]

§ 413. According to the British[880] and American practice, as well as that of some other States, which has hitherto prevailed, whenever a neutral vessel was stopped for carrying persons or despatches for the enemy, these could not be seized unless the vessel were seized at the same time. The release, in 1861, during the American Civil War, of Messrs. Mason[881] and Slidell, who had been forcibly taken off the Trent, while the ship herself was allowed to continue her voyage, was based, by the United States, on the fact that the seizure of these men without the seizure of the vessel was illegal. Since, according to the Declaration of London, a neutral vessel rendering unneutral service of any kind is liable to be confiscated, it is evident that in such a case the enemy persons and despatches concerned may not be taken off the vessel unless the vessel herself is seized and brought into a port of a Prize Court. However, article 47 provides that any member of the armed forces of the enemy found on board a neutral merchant vessel may be taken off and made a prisoner of war, although there may be no ground for the capture of the vessel. Therefore, if a vessel carries individual members of the armed forces of the enemy in the ordinary course of her voyage,[882] or if she transports a military detachment of the enemy and the like without being aware of the outbreak of hostilities, the members of the armed forces of the enemy on board may be seized, although the vessel herself may not be seized, as she is not rendering unneutral service.

The Declaration of London does not mention the case of enemy despatches embodying intelligence found on board such a neutral vessel as may not herself be captured for such carriage. For instance, in the case of a mail steamer pursuing her ordinary course and carrying a despatch of the enemy not in her mail bags but separately, the vessel may not, according to article 45, be seized. In this, and similar cases, may despatches be seized without the seizure of the vessel? It has been pointed out above, § 409, that, in a case of necessity, self-preservation would justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy. This certainly fits the case of a vessel transmitting oral intelligence. But if a vessel carried despatches, the necessity of detaining her ceases through seizure of the despatches themselves. The question—see above, § 412—as to whether in such cases the despatches may be seized without seizure of the vessel ought, therefore, in analogy with article 47 of the Declaration of London, to be answered in the affirmative.

Quite different from the case of seizure of such enemy persons and despatches as a vessel cannot carry without exposing herself to punishment, is the case[883] where a vessel has such enemy persons and despatches on board as she is allowed to carry, but whom a belligerent believes it to be necessary in the interest of self-preservation to seize. Since necessity in the interest of self-preservation is, according to International Law, an excuse[884] for an illegal act, a belligerent may seize such persons and despatches, provided that such seizure is not merely desirable, but absolutely necessary[885] in the interest of self-preservation, as, for instance, in the case where an Ambassador of the enemy on board a neutral vessel is on the way to submit to a neutral a draft treaty of alliance injurious to the other belligerent.

CHAPTER VI VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS

I VISITATION

Bynkershoek, Quaest. jur. pub. I. c. 14—Vattel, III. § 114—Hall, §§ 270-276—Manning, pp. 433-460—Phillimore, III. §§ 322-344—Twiss, II. §§ 91-97—Halleck, II. pp. 255-271—Taylor, §§ 685-689—Wharton, III. §§ 325 and 346—Wheaton, §§ 524-537—Moore, VII. §§ 1199-1205—Bluntschli, §§ 819-826—Heffter, §§ 167-171—Geffcken in Holtzendorff, IV. pp. 773-781—Klüber, §§ 293-294—G. F. Martens, II. §§ 317 and 321—Ullmann, § 196—Bonfils, Nos. 1674-1691—Despagnet, Nos. 717-721—Rivier, II. pp. 423-426—Nys, III. pp. 682-692—Calvo, V. §§ 2939-2991—Fiore, III. Nos. 1630-1641, and Code, Nos. 1853-1877—Martens, II. § 137—Kleen, II. §§ 185-199, 209—Gessner, pp. 278-332—Boeck, Nos. 767-769—Dupuis, Nos. 239-252, and Guerre, Nos. 189-204—Bernsten, § 11—Nippold, II. § 35—Perels, §§ 52-55—Testa, pp. 230-242—Ortolan, II. pp. 214-245—Hautefeuille, III. pp. 1-299—Holland, Prize Law, §§ 1-17, 155-230—U.S. Naval War Code, articles 30-33—Schlegel, Sur la visite des vaisseaux neutres sous convoi (1800)—Mirbach, Die völkerrechtlichen Grundsätze des Durchsuchungsrechts zur See (1903)—Loewenthal, Das Untersuchungsrecht des internationalen Seerechts im Krieg und Frieden (1905)—Atherley-Jones, Commerce in War (1906), pp. 299-360—Hirschmann, Das internationale Prisenrecht (1912), §§ 33-34—Duboc in R.G. IV. (1897), pp 382-403—See also the monographs quoted above at the commencement of § 391, Bulmerincq's articles on Le droit des prises maritimes in R.I. X-XIII. (1878-1881), and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, article 63.

§ 414. Right of visitation[886] is the right of belligerents to visit and eventually search neutral merchantmen for the purpose of ascertaining whether these vessels really belong to the merchant marine of neutrals, and, if this is found to be the case, whether they are attempting to break a blockade, or carry contraband, or render unneutral service to the enemy. The right of visit and search was already mentioned in the Consolato del Mare, and although it has often[887] been contested, its raison d'être is so obvious that it has long been universally recognised in practice. It is indeed the only means by which belligerents are able to ascertain whether neutral merchantmen intend to bring assistance to the enemy and to render him unneutral services.[888]

§ 415. The right of visit and search may be exercised by all warships[889] of belligerents. But since it is a belligerent right, it may, of course, only be exercised after the outbreak and before the end of war. The right of visitation on the part of men-of-war of all nations in time of peace in a case of suspicion of piracy—see above, vol. I. § 266 (2)—has nothing to do with the right of visit and search on the part of belligerents. And since an armistice does not bring war to an end, and since, on the other hand, the exercise of the right of visitation is not an act of warfare, this right may be exercised during the time of a partial as well as of a general armistice.[890] The region where the right may be exercised is the maritime territorial belt of either belligerent, and, further, the Open Sea, but not the maritime territorial belt of neutrals. Whether the part of the Open Sea in which a belligerent man-of-war meets with a neutral merchantman is near or far away from that part of the world where hostilities are actually taking place makes no difference so long as there is suspicion against the vessel. The question as to whether the men-of-war of a belligerent may exercise the right of visitation in the maritime territorial belt of an ally is one between the latter and the belligerent exclusively, provided such an ally is already a belligerent.

§ 416. During the nineteenth century it became universally recognised that neutral men-of-war are not objects of the right of visit and search of belligerents.[891] And the same is valid regarding public neutral vessels which sail in the service of armed forces, such as transport vessels, for instance. Doubt exists as to the position of public neutral vessels which do not sail in the service of armed forces, but sail for other purposes, as, for instance, mail-boats belonging to a neutral State. It is asserted[892] that, if commanded by an officer of the Navy, they must be treated in the same way as men-of-war, but that it is desirable to ask the commanders to give their word of honour assuring the absence of contraband and unneutral service.

§ 417. Sweden in 1653, during war between Great Britain and the Netherlands, claimed that the belligerents ought to waive their right of visitation over Swedish merchantmen if the latter sailed under the convoy of a Swedish man-of-war whose commander asserted the absence of contraband on board the convoyed vessels. The Peace of Westminster in 1654 brought this war to an end, and in 1756 the Netherlands, then neutral, claimed the right of convoy. But it was not until the last quarter of the eighteenth century that the right of convoy was more and more insisted upon by Continental neutrals. During the American War of Independence in 1780, the Netherlands again claimed that right, and when they themselves in 1781 waged war against Great Britain, they ordered their men-of-war and privateers to respect the right of convoy. Between 1780 and 1800 treaties were concluded, in which Russia, Austria, Prussia, Denmark, Sweden, France, the United States of America, and other States recognised that right. But Great Britain always refused to recognise it, and in July 1800 the action of a British squadron in capturing a Danish man-of-war and her convoy of six merchantmen for resistance to visitation called the Second Armed Neutrality into existence. Yet Great Britain still resisted, and by article 4 of the "Maritime Convention" of St. Petersburg of June 17, 1801, she conceded to Russia only that vessels under convoy should not be visited by privateers. During the nineteenth century more and more treaties stipulating the right of convoy were concluded, but this right was not mentioned in the Declaration of Paris of 1856, and Great Britain refused to recognise it throughout the century. However, Great Britain abandoned her opposition at the Naval Conference of London of 1908-9, and the Declaration of London proposes to settle the matter by articles 61 and 62 in the following way:—

Neutral vessels under the convoy of a man-of-war flying the same flag are exempt from search and may not be visited if the commander of the convoy, at the request of the commander of the belligerent cruiser which desires to visit, gives, in writing, all information as to the character of the convoyed vessels and their cargoes which could be obtained by search. Should the commander of the belligerent man-of-war have reason to suspect that the confidence of the commander of the convoy has been abused, he may not himself resort to visit and search, but must communicate with the commander of the convoy. The latter must investigate the matter, and must record the result of his investigation in a report, a copy of which must be given to the commander of the belligerent cruiser. Should, in the opinion of the commander of the convoy, the facts stated in the report justify the capture of one or more of the convoyed vessels, he must withdraw protection from the offending vessels, and the belligerent cruiser may then capture them.

In case a difference of opinion arises between the commander of the convoy and the commander of the belligerent cruiser—for instance, with regard to the question as to whether certain goods are absolute or conditional contraband or as to whether the port of destination of a convoyed vessel is an ordinary commercial port or a port which serves as a base of supply for the armed forces of the enemy and the like—the commander of the belligerent cruiser has no power of overruling the decision of the commander of the convoy. He can only protest and report the case to his Government, which will settle the matter by means of diplomacy.

§ 418. There are no rules of International Law which lay down all the details of the formalities of the mode of visitation. A great many treaties regulate them as between the parties, and all maritime nations have given instructions to their men-of-war regarding these formalities. Thereby uniform formalities are practised with regard to many points, but regarding others the practice of the several States differs. Article 17 of the Peace Treaty of the Pyrenees of 1659 has served as a model of many of the above-mentioned treaties regulating the formalities of visitation: "Les navires d'Espagne, pour éviter tout désordre, n'approcheront pas de plus près les Français que la portée du canon, et pourront envoyer leur petite barque ou chaloupe à bord des navires français et faire entrer dedans deux ou trois hommes seulement, à qui seront montrés les passeports par le maître du navire français, par lesquels il puisse apparoir, non seulement de la charge, mais aussi du lieu de sa demeure et résidence, et du nom tant du maître ou patron que du navire même, afin que, par ces deux moyens, on puisse connaître, s'il porte des marchandises de contrebande; et qu'il apparaisse suffisamment tant de la qualité du dit navire que de son maître ou patron; auxquelles passeports on devra donner entière foi et créance."

§ 419. A man-of-war which wishes to visit a neutral vessel must stop her or make her bring to. Although the chasing of vessels may take place under false colours, the right colours must be shown when vessels are stopped.[893] The order for stopping can be given[894] by hailing or by firing one or two blank cartridges from the so-called affirming gun, and, if necessary, by firing a shot across the bows of the vessel. If nevertheless the vessel does not bring to, the man-of-war is justified in using force to compel her to bring to. Once the vessel has been brought to, the man-of-war also brings to, keeping a reasonable distance. With regard to this distance, treaties very often stipulate either the range of a cannon shot or half such width or even a range beyond a cannon shot; but all this is totally impracticable.[895] The distance must vary according to the requirements of the case, and according to wind and weather.

§ 420. The vessel, having been stopped or brought to, is visited[896] by one or two officers sent in a boat from the man-of-war. These officers examine the papers of the vessel to ascertain her nationality, the character of her cargo and passengers, and, lastly, the ports from and to which she is sailing. Instead of visiting the merchantman and inspecting her papers on board, the practice is followed, by the men-of-war of some States, of summoning the master of the merchantman with his papers on board the former and examining the papers there.

If everything is found in order and there is no suspicion of fraud, the vessel is allowed to continue her course, a memorandum of the visit having been entered in her log-book. On the other hand, if the inspection of the papers shows that the vessel is carrying contraband or rendering unneutral service, or that she is for another reason liable to capture, she is at once seized. But it may be that, although ostensibly everything is in order, there is nevertheless grave suspicion of fraud against the vessel. In such case she may be searched.

§ 421. Search is effected[897] by one or two officers, and eventually a few men, in presence of the master of the vessel. Care must be taken not to damage the vessel or the cargo, and no force whatever must be applied. No lock must be forcibly broken open by the search party, but the master is to be required to unlock it. If he fails to comply with the demand he is not to be forced thereto, since the master's refusal to assist the search in general, or that of a locked part of the vessel or of a locked box in particular, is at once sufficient cause for seizing the vessel. Search being completed, everything removed has to be replaced with care. If the search has satisfied the searching officers and dispelled all suspicion, a memorandum is entered in the log-book of the vessel, and she is allowed to continue her voyage. On the other hand, if search brought contraband or another cause for capture to light, the vessel is seized. But since search can never take place so thoroughly on the sea as in a harbour, it may be that, although search has disclosed no proof to bear out the suspicion, grave suspicion still remains. In such case she may be seized and brought into a port for the purpose of being searched there as thoroughly as possible. But the commander of a man-of-war seizing a vessel in such case must bear in mind that full indemnities must be paid to the vessel for loss of time and other losses sustained if finally she is found innocent. Therefore, after a search at sea has brought nothing to light against the vessel, seizure should take place only in case of grave suspicion.

§ 422. If a neutral merchantman resists visit or search, she is at once captured, and may be confiscated. The question as to whether the vessel only, or also her cargo, could be confiscated for resistance has hitherto been controversial. According to British[898] and American theory and practice, the cargo as well as the vessel was liable to confiscation. But Continental[899] writers emphatically argued against this and maintained that the vessel only was liable to confiscation.

According to article 63 of the Declaration of London, resistance to the legitimate exercise of the right of visit, search, and capture involves in all cases the confiscation of the vessel, which by her forcible resistance has acquired enemy character (see above, § 89). For this reason such goods on board as belong to the master or owner of the vessel are treated as enemy goods and may be confiscated. Enemy goods on board may now likewise be confiscated, although when they were first shipped the vessel bore neutral character. Further, all goods on board are now presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Lastly, no appeal may be brought from the National Prize Courts to the International Prize Court by the owner of the ship except concerning the one question only, namely, as to whether there was justification for capturing her on the grounds of forcible resistance.

It must be emphasised that visit and search do not take place after a vessel has been captured for resistance, for the mere fact of resisting has imposed enemy character upon her, and the question is now irrelevant whether visit and search would show her to be guilty or innocent.

§ 423. According to the practice hitherto prevailing,[900] and also according to the Declaration of London, a mere attempt on the part of a neutral merchantman to escape visitation does not in itself constitute resistance. Such vessel may be chased and compelled by force to bring to, and she cannot complain if, in the endeavour forcibly to compel her to bring to, she is damaged or accidentally sunk. If, after the vessel has been compelled to bring to, visit and search show her to be innocent, she must be allowed to proceed on her course.

Resistance to be penal must be forcible resistance. It constitutes resistance, therefore, if a vessel applies force in resisting any legitimate action by the belligerent cruiser which requires her to stop and to be visited and searched. The term forcible resistance is not defined in detail by article 63 of the Declaration of London. It is, consequently, not certain whether the actual application of force only, or also the refusal, on the part of the master, to show the ship papers or to open locked parts of the vessel or locked boxes, and similar acts, constitutes forcible resistance. The International Prize Court, if established, would have to develop a practice which would decide these points.

§ 424. Wheaton excepted, all writers would seem to agree that the fact of neutral merchantmen sailing under a convoy of enemy men-of-war is equivalent to forcible resistance on their part, whether they themselves intend to resist by force or not. But the Government of the United States of America in 1810 contested this principle. In that year, during war between Great Britain and Denmark, many American vessels sailing from Russia used to seek protection under the convoy of British men-of-war, whereupon Denmark declared all such American vessels to be good and lawful prizes. Several were captured without making any resistance whatever, and were condemned by Danish Prize Courts. The United States protested, and claimed indemnities from Denmark, and in 1830 a treaty between the parties was signed at Copenhagen,[901] according to which Denmark had to pay 650,000 dollars as indemnity. But in article 5 of this treaty the parties "expressly declare that the present convention is only applicable to the cases therein mentioned, and, having no other object, may never hereafter be invoked by one party or the other as a precedent or a rule for the future."[902]