Transporta tion of military persons and despatches in the enemy's service. Carriage of enemy civil officials. belligerent has a stronger right to prevent and punish it; nor is it material, in the judgment of the Prize Court, whether the master be ignorant of the character of the service on which he is engaged. It is deemed sufficient if there has been an injury arising to the belligerent from the employment in which the vessel is found. If imposition is practised, it operates as force; and if redress is to be sought against any person, it must be against those who have, by means either of compulsion or deceit, exposed the property to danger; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the privity of the immediate offender (1). Similarly in The Caroline it was held that a neutral vessel, which is used as a transport for the enemy's forces, is subject to confiscation, if captured by the opposite belligerent. Nor will the fact of her having been impressed by violence into the enemy's service, exempt her. The master cannot be permitted to aver that he was an involuntary agent. Were an act of force exercised by one belligerent Power on a neutral ship or person to be considered a justification for an act, contrary to the known duties of the neutral character, there would be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act. If any loss is sustained in such a service, the neutral yielding to such demands must seek redress from the Government which has imposed the restraint upon him (m). We find a similar practice a century later, when in the RussoJapanese war, 1904, the Japanese captured and condemned the Nigretia, a British vessel, on a voyage from Shanghai to Vladivostock, on the ground that she had on board two Russian officers, who were proceeding, under feigned names and under the pretence of belonging to the crew, with the connivance of the charterers, to a naval port of the enemy (n). In 1908, in a case arising out of a policy insurance with regard to the above-mentioned vessel, it was held by the Privy Council that enemy military persons carried by a neutral vessel are not contraband of war in the proper sense of the term (0). A neutral vessel employed for the transport of merely civil officials would, it appears, be equally liable to condemnation, if they were despatched, with the knowledge of the charterer or master, on the enemy's public service and at the enemy's public (1) The Orozembo (1807), 6 C. Rob. 430. (m) The Caroline (1802), 4 C. Rob. 256. (n) The Nigretia (1904), Takahashi, p. 639. (o) Yangtze Insurance Association v. The Indemnity Marine Mutual Assurance Co., (1908) 1 K. B. 910; 2 K. B. 504. Cf. The Trent, supra, pp. 178, 331. expense (p). But it would be otherwise if such persons, or even military persons, were private passengers travelling at their own expense (9). of enemy despatches. The fraudulently carrying the despatches of the enemy will also The carriage subject the neutral vessel, in which they are transported, to capture and confiscation. The consequences of such a service are indefinite, infinitely beyond the effect of any contraband that can be conveyed. In 1807, during the war between Great Britain and France, the British captured a neutral ship, the Atalanta, on which French despatches were found concealed in a tea chest. Both ship and cargo were therefore condemned, on the ground that the carriage of enemy despatches constitutes an engagement in the service of the enemy. "The carrying of two or three cargoes of military stores," said Sir W. Scott, "is necessarily an assistance of a limited nature; but in the transmission of despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent in that quarter of the world. It is true, as it has been said, that one ball might take off a Charles the XIIth, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that, in the contemplation of human events, it is a sort of evanescent quantity of which no account is taken; and the practice has been, accordingly, that it is in considerable quantities only that the offence of contraband is contemplated. The case of despatches. is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character-as an act of the most hostile nature. The offence of fraudulently carrying despatches in 'the service of the enemy being, then, greater than that of carrying contraband under any circumstances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article which constitutes the penalty in contraband, where the vessel and cargo do not belong to the same person, would be ridiculous when applied to despatches. There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must, therefore, be confiscated" (r). But when it was proved that the master was not (p) The Orozembo (1807), 6 C. Rob. 430. (1) The Friendship (1807), 6 C. Rob. 429. Cf. the British Memoran dum, Parl. Papers, Miscell. No. 4 (r) The Atalanta (1808), 6 C. Rob. 440. Diplomatic despatches an exception. aware of the fact that enemy despatches were being carried in his vessel-his ignorance not being due to his negligence (s)-or that he was ignorant of their real nature (t), the penalty of condemnation was not imposed. But carrying the despatches of an ambassador or other public. minister of the enemy, resident in a neutral country, is an exception to the reasoning on which the above general rule is founded. "They are," said Sir W. Scott in The Caroline, "despatches from persons who are, in a peculiar manner, the favourite object of the protection of the law of nations, residing in the neutral country for the purpose of preserving the relations of amity between that. State and their own Government. On this ground a very material distinction arises with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communication between them can partake, in any degree, of the nature of hostility against you. The limits assigned to the operations of war against ambassadors, by writers on public law, are, that the belligerent may exercise his right of war against them, wherever the character of hostility exists: he may stop the ambassador of his enemy on his passage; but when he has arrived in the neutral country, and taken on himself the functions of his office, and has been admitted in his representative character, he becomes a sort of middle man,' entitled to peculiar privileges, as set apart for the preservation of the relations of amity and peace, in maintaining which all nations are, in some degree, interested. If it be argued that he retains his national character unmixed, and that even his residence is considered as a residence in his own country, it is answered that this is a fiction of law, invented for his further protection only, and as such a fiction, it is not to be extended beyond the reasoning on which it depends. It was intended as a privilege, and cannot be urged to his disadvantage. Could it be said that he would, on that principle, be subject to any of the rights of war in the neutral territory? Certainly not: he is there for the purpose of carrying on the relations of peace and amity, for the interests of his own country primarily, but at the same time for the furtherance and protection of the interests which the neutral country also has in the continuance of those relations. It is to be considered also, with regard to this question, what may be due to the convenience of the neutral State; for its interests may require that the intercourse of correspondence with (s) The Susan (1808), 6 C. Rob. 461. (t) The Rapid (1814), Edw. 228. the enemy's country should not be altogether interdicted. It might be thought to amount almost to a declaration, that an ambassador from the enemy shall not reside in the neutral State, if he is declared to be debarred from the only means of communicating with his own. For to what useful purpose can he reside there without the opportunity of such a communication? It is too much to say that all the business of the two States shall be transacted by the minister of the neutral State resident in the enemy's country. The practice of nations has allowed to neutral States the privilege of receiving ministers from the belligerent Powers, and of an immediate negotiation with them" (u). These propositions represent pretty accurately what was conceived to be the customary law on the subject. And this customary law is valid now, subject to certain modifications introduced by the Hague Code-e.g., the rule that a belligerent may seize enemy sick or wounded found in neutral hospital ships or merchantmen (x)—and by the Declaration of London (1909). The latter deals with the question of unneutral service ('assistance hostile') generally, and divides the offences into two classes-lesser offences and more serious offences. "A neutral vessel will be condemned and will, in a general way, Declaration receive the same treatment as a neutral vessel liable to condemnation for carriage of contraband: of London (1) If she is on a voyage specially undertaken with a view to offences. the transport of individual passengers who are embodied in the armed forces of the enemy, or with a view to the transmission of intelligence in the interest of the enemy. (2) If, with the knowledge of the owner, the charterer, or the master, she is transporting a military detachment of the enemy, or one or more persons who, in the course of the voyage, directly assist the operations of the enemy. In the cases specified in the preceding paragraphs, goods belonging to the owner of the vessel are likewise liable to condemnation. The provisions of the present Article do not apply 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. The vessel is deemed to be aware of the state of war if she left an enemy port after the outbreak of hostilities, or a neutral port (u) The Caroline (1807), 6 C. Rob. 461. (x) Hague Convention (1907), No. X. Art. 12; supra, p. 559. (b) More serious offences. after the notification of the outbreak of hostilities made in sufficient time to the Power to which such port belongs" (y). The expression "a voyage specially undertaken" does not refer to a voyage made in the ordinary or usual employment of the vessel, but to departures therefrom, as, for example, when she deliberately deviates from her course or touches at a point not ordinarily called at, in order to embark the individual passengers in question. This Article does not imply that the vessel is exclusively devoted to the service of the enemy (z). The word “embodied" gave rise to some difficulty; the London Naval Conference agreed, after much deliberation, that it shall not refer to such enemy individuals as are on their way to their country for the purpose of performing the military service required of them by their municipal law. In the second case specified in the Article, the fact that the persons mentioned are in civilian dress will afford no protection, if the master or owner was aware of their true character. Assisting the enemy during the voyage includes such services as signalling (a). Article 45 thus introduces a certain relaxation of the British system, in requiring proof that the master or owner was aware of the character of the persons on board. The former British rule was—as we have seen in the case of The Orozembo (b)—that proof of knowledge or delinquency on the part of the master or owner was not essential; it was sufficient if the employment of the vessel involved an injury to the belligerent. "A neutral vessel will be condemned and will, in a general way, receive the same treatment as if she were a merchant vessel of the enemy: (1) If she takes a direct part in the hostilities. (2) If she is under the orders or control of an agent placed on board by the enemy Government. (3) If she is in the exclusive employment of the enemy Government. (4) If she is exclusively engaged at the time either in the transport of enemy troops or in the transmission of intelligence in the interest of the enemy. In the cases covered by the present Article, goods belonging to the owner of the vessel are likewise liable to condemnation (c). (y) Declar. of London (1909), Art. 45. () The case of exclusive employment is dealt with in the following Article. (a) Cf. Report on the Declar. of London, Parl. Papers, Miscell. No. 4 (1909). (b) See supra, p. 757. |