Declaration of London on convoy. facie hostile association. If no other incriminating circumstances appeared against her, a decree of condemnation would not be pronounced. But if she is intercepted by a belligerent whilst she is actually under enemy convoy, and after the convoying vessel has offered or when the convoying vessel is offering resistance to that belligerent, then she may be condemned on the ground of manifest hostile association and because of her intention to resist the right of visit and search (r). By the Declaration of London (1909), provision is made for the right of convoy and for resistance to search: "Neutral vessels under convoy of their national flag are exempt from search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent warship, all information as to the character of the vessels and their cargoes, which could be obtained by search" (8). The exemption conferred by this Article is conditional on the convoying commander's assurance of the innocent character of the vessel and cargo under convoy. The very act of convoying vessels necessarily implies a guarantee on the part of the neutral Government concerned that the vessels in question will take no advantage of the protection thus accorded them, for the purpose of doing anything inconsistent with neutrality, e.g., to carry contraband, to render unneutral service, to attempt to break blockade. The neutral Government is therefore called upon to exercise due supervision throughout in order to prevent all abuse of convoy, and to instruct the commander of the convoy accordingly (t). "If the commander of the belligerent warship has reason to suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to him. In such a 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convoy, the facts shown in the report justify the capture of one or more vessels, the protection of the convoy must be withdrawn from such vessels " (u). The commander of the convoy may, but he is not obliged to, allow the officer of the cruiser to be present at the investigation. In case of difference of opinion between the two officers, e.g., as (r) Cf. the dissenting judgment of (8) Declar. of London (1909), Art. 61. (t) Cf. Report on the Declaration, Parl. Papers, Miscell. No. 4 (1909). (u) Art. 62. to conditional contraband, the character of the port to which conditional contraband is destined, the officer of the cruiser may make a protest and leave the question to be settled by diplomatic means. "The situation is altogether different if a convoyed vessel is found beyond the possibility of dispute to be carrying contraband. The vessel has no longer a right to protection, since the condition upon which such protection depends has not been fulfilled. She has deceived her own Government, and has tried to deceive the belligerent. She must therefore be treated as a neutral merchant vessel which, in the ordinary way, encounters a belligerent cruiser and is visited and searched by her. She cannot complain at being treated thus rigorously, since there is in her case an aggravation of the offence, committed by a carrier of contraband" (x). OF NEUTRAL The position and liability of enemy merchantmen encountered DESTRUCTION at sea by belligerent warships have already been considered (y). PRIZES. As to neutral vessels met with by a belligerent, where certain offences have been committed or are suspected of having been committed by them-e.g., the carriage of contraband, unneutral service, breach of blockade, resistance to search, use of fraudulent papers they are liable to seizure. Under the British practice they are to be then sent in for adjudication, as without due condemnation change of ownership does not take place. But should it be found impossible to send them in, they are, as a general rule, to be released (z). In cases of emergency, however, or in bonâ fide mistake (a), their destruction is not deemed to be unlawful; but in these cases, since the owners of ship and cargo have not been divested of their property by judicial determination, compensation is paid to them (b). This practice has been adopted by certain other countries, for example, Holland and Japan (c); but adoption in time of peace has sometimes been followed by a different régime in time of war (d). The majority of the great maritime Powers, e.g., France, Germany, Russia, the United States, are in favour of the more rigorous course of destroying neutral prizes at sea, if they cannot be brought in without risk to the captor. Thus, in the Russo-Japanese war, Russia, in (x) Report, loc. cit. (y) See supra, p. 586. (2) The Leucade (1854), Spinks, 217. Cf. Manual of Naval Prize Law (1888), § 303. (a) Cf. The Acteon, Dods. 48. (b) The Felicity (1819), 2 Dods. 381. (c) See Parl. Papers, Miscell. No. 5 (d) Cf. Japanese Regulations gov- Declaration accordance with her regulations (e), sank several neutral merchantmen instead of bringing them in for adjudication-e.g., the Knight Commander, the Hipsang, the Ikhona, the St. Kilda (all British); the Thea (German); the Princess Maria (Danish) (f). In 1907 the question was discussed at the second Hague Conference, but owing to the conflicting views entertained by the delegates no conclusion was arrived at. The London Naval Conference, however, arrived at an agreement in 1909, whereby Great Britain modified her opposition to the practice of destruction when carried out in circumstances of exceptional urgency. The following are the rules laid down: "A neutral vessel that has been captured may not be destroyed by the captor, but must be taken into such port as is proper in order to determine there all questions concerning the validity of the capture" (g). As an exception, a neutral vessel which has been captured by a belligerent warship, and which would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the safety of the warship or to the success of the tions in which she is engaged at the time" (h). opera The Report emphasizes, in reference to this Article, that it is the circumstances existing at the moment of destruction that must be considered, in order to decide whether the conditions specified are or are not fulfilled (¿). "Before the vessel is destroyed all persons on board must be placed in safety, and all the ship's papers and other documents which the parties interested consider relevant for the purpose of deciding on the validity of the capture must be taken on board the warship" (k). A captor who has destroyed a neutral vessel must, prior to any decision respecting the validity of the prize, establish that he only acted in the face of an exceptional necessity of the nature contemplated in Article 49. If he fails to do this, he must compensate the parties interested without examination as to whether the capture was valid or not " (l). "If the capture of a neutral vessel is subsequently held to be invalid, though the act of destruction has been held to have been justifiable, the captor must pay compensation to the parties Russian Regulations (1895), § 21; Instructions (1900), § 40. (f) Cf. Lawrence, War and Neutrality in the Far East, 2nd ed. (1904), pp. 250-289. (9) Declar. of London (1909), Art. 48. (h) Art. 49. (i) Parl. Papers, Miscell. No. 4 (1909). (k) Art. 50. (2) Art. 51. interested instead of the restitution to which they would have been entitled" (m) "If neutral goods not liable to condemnation have been The cargo. destroyed with the vessel, the owner of such goods is entitled to compensation" (n). That is, the owner of the innocent neutral cargo is entitled to an indemnity, regardless of the justifiable or unjustifiable destruction of the vessel. "The captor has the right to demand the surrender or to proceed himself to the destruction of any goods liable to condemnation found on board a vessel not herself liable to condemnation, provided that the circumstances are such as would, under Article 49, justify the destruction of a vessel herself liable to condemnation. The captor must enter the goods surrendered or destroyed in the log-book of the vessel stopped, and must obtain duly certified copies of all relevant papers. When the goods have been surrendered or destroyed, and the formalities duly carried out, the master must be allowed to continue his voyage. The provisions of Articles 51 and 52 respecting the obligations of a captor who has destroyed a neutral vessel are applicable" (o). The provisions laid down in this Article constitute a novel contribution to international maritime practice. The Report comments thereon as follows: "A cruiser encounters a neutral merchant vessel carrying contraband in a proportion less than that specified in Article 40 (p). The captain of the cruiser may put a prize crew on board the vessel and take her into port for adjudication. He may, in conformity with the provisions of Article 44 (q), accept the contraband if it is offered to him by the vessel stopped. But what is to happen if neither of these solutions is reached? The vessel stopped does not offer to deliver the contraband, and the cruiser is not in a position to take the vessel into a national port. Is the cruiser obliged to let the neutral vessel go with the contraband on board? This has seemed excessive, at least in certain exceptional circumstances. These circumstances are in fact the same as would have justified the destruction of the vessel, if she had been liable to condemnation. In such a case the cruiser may require the delivery or proceed to the destruction of the goods. liable to condemnation. The reasons which warrant the destruction of the vessel would justify the destruction of the contraband (m) Art. 52. (n) Art. 53. (0) Art. 54. (p) I.e., less than half, reckoned either by value, or by weight, by Compensation. goods, the more so as the considerations of humanity which may be invoked against the destruction of a vessel do not in this case apply. Against an arbitrary demand by the cruiser there are the same guarantees as those which made it possible to recognise the right to destroy the vessel. The captor must, as a condition precedent, prove that he was really faced by the exceptional circumstances specified; failing this, he is condemned to pay the value of the goods delivered or destroyed, without investigation as to whether they were or were not contraband. The Article prescribes certain formalities which are necessary to establish the facts of the case and to enable the Prize Court to adjudicate" (r). "If the capture of a vessel or of goods is not upheld by the Prize Court, or if the prize is released without any judgment being given, the parties interested have the right to compensation, unless there were good reasons for capturing the vessel or goods" (s). (r) Parl. Papers, Miscell. No. 4 (s) Declar. of London, Art. 64. (1909), pp. 52, 97. |