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CHAPTER XV

THE RIGHT OF SEARCH

Nature of the Right. The belligerent rights which have already been discussed-of capturing enemy property at sea, of seizing contraband of war, and of blockading the coasts and harbors of an enemy - could none of them be made effective were not belligerents also accorded the right to stop and search all neutral merchant vessels on the high seas, for the purpose of ascertaining their nationality and destination, the character and ownership of their cargoes, and to effect their capture, should the result of such examination show a liability to capture to exist.'

When and Where Exercised. The right to stop and examine neutral vessels on the high seas is called the belligerent right of search. It comes into existence at the outbreak of war, and is terminated by the treaty of peace. Neutral merchant vessels, of whatsoever character, are subject to its exercise, and must submit to search when required to do so, in time of war, by a properly documented armed vessel of either belligerent. If they refuse, or resist, they are subject to seizure and condemnation. If the right be exercised by a belligerent in a manner not warranted by the law of nations, or in violation of the terms of a treaty, the remedy must be sought through the neutral government under whose flag the ship sails. As

'II Halleck, pp. 267, 268; the Maria, 1 Rob. Adm. Rep. p. 360; the Antelope, 10 Wheaton, 66; the Anna Maria, 2 Ibid. 327; II Orrtolan, liv. iii. chap. vii.; Pistoye et Duverdy, tit. v. chap. i.; 1 Kent, p. 153; III Phillimore, pp.

523, 524 II Twiss, p. 177; Vattel, liv. iii. chap. vii. §§ 111-116; Bello, Derecho Internacional, part ii. chap. viii.

10; Le Louis, 2 Dod. Adm. Rep. p. 210; vol. xix. Revue de Droit. Int. p. 367; vol. xx. Ibid. pp. 349, 487.

to place, the right of search may be exercised wherever a capture may lawfully be made-i. e., on the high seas or within the territorial waters of either belligerent, but never in neutral waters.'

How Exercised. The manner in which the belligerent right of search is to be exercised is determined by the usage of nations, except in those cases in which it has been made the subject of treaty stipulation. Many such treaties are in existence, and they specify, in considerable detail, the manner in which the search shall be conducted by war-ships carrying the flags of the signatory powers. The duty of submitting is only incumbent upon neutral merchant vessels. Public armed vessels are not subject to visitation, either in time of peace or war, and the merchant vessels of a belligerent are justified in resorting to any measures, either of flight, resistance, or deception, which are calculated to enable them to escape search and inevitable capture. The right of search may be exercised by the regularly commissioned ships-of-war of a belligerent, or by duly authorized privateers in the service of those states which still retain the right to use that species of naval force in time of war.'

'Hall, § 270; III Phillimore, pp. 522-525, 530-533; II Twiss, pp. 176, 177; II Ferguson, § 237; II Ortolan, liv. iii. chap. vii. 'The right of search is not a right wantonly to vex or control neutral commerce or indulge in idle curiosity. It is a right growing out of, and ancillary to, the greater right of capture, and can never arise except as a means to that end."-The Nereide, 9 Cranch, 388 [427]. "The right of visitation and search is a belligerent right which cannot be drawn into question, but must be conducted with as much regard to the safety of the vessel detained as is consistent with a thorough examination of her character and voyage."-The Anna Maria, 2 Wheaton, 327. "To de

tain for examination is a right which a belligerent may exercise over every vessel, except a national vessel, which he meets with on the ocean. The principal right necessarily carries with it all the means essential to its exercise; among these may sometimes be included the assumption of the disguise of a friend or an enemy, which is lawful stratagem of war."-The Eleanor, 2 Wheaton, 345; the Antelope, 10 Ibid. 66.

2 II Twiss, pp. 176, 177; Hall, § 273; III Phillimore, pp. 536–542; the Mariana Flora, i Wheaton, 1; II Ortolan, liv. iii. chap. vii.; II Ferguson, § 238; vol. xix. Revue de Droit Int. p. 367; vol. xx. Ibid. pp. 349,487.

Under ordinary circumstances, a man-of-war, in executing the right of search, hoists its national color, and fires an unshotted gun, as a signal to heave to. This is called the coup d'assurance, or affirming gun; and it is the duty of the neutral ship, on receiving this signal, to heave to at once and hoist her proper national flag. Should the signal not be obeyed, and should the failure to obey indicate an intention to resist search, the belligerent cruiser is justified in resorting to such measures of force as will compel obedience to its summons. An attempt at flight, unaccompanied by resistance, has been held not to involve the ship making it in the penalty for resisting search.'

The distance at which the searching vessel shall remain is determined by the judgment of her commanding officer, based upon the circumstances of wind and tide, upon the character of the vessel to be searched, and the necessity of remaining within easy supporting distance of the boat's crew by whom the search is carried on. The distance at which a man-of-war shall remain, when not regulated by treaty, is now a matter of but little importance. It was not so, however, in former times, when the right of search was executed by privateers, whose methods of search and capture were not above suspicion, and when piracy was a crime of much more frequent occurrence than at present.'

Duty of Boarding Party. An officer is sent on board to conduct the search. He is accompanied by a boat's crew, and by one or two persons to assist him in the performance of his duty. The purpose of the search may be :

II Twiss, pp. 180-183; III Phillimore, pp. 537-541; the Mariana Flora, 11 Wheaton, 42; II Ferguson, § 238; II Ortolan, liv. iii. chap. vii. p. 249;; II Halleck, Pp. 285-287; Hall, §§ 270-277; Snow, pp. 159-162; Glass, pp. 155164.

2" The limitation as to the strength of the search-party can be traced to a similar origin, and, like the former, is now less strong

ly insisted upon than formerly. To detain for examination is a right which a belligerent may exercise over every vessel, except a national vessel, which he meets on the ocean. -The Eleanor, 2 Wheaton, 345. "Public vessels of a neutral power are not subject to search by a belligerent armed vessel in time of war."-The Eleanor, 2 Wheaton, 345; the Antelope, 10 Ibid. 66.

(a.) To ascertain from the ship's papers the nationality and destination of the vessel.

(b.) To ascertain from the same source the character and destination of the cargo.

(c.) When the papers do not contain satisfactory information as to the character and destination of the ship and cargo, to ascertain those facts by actual inspection.'

If the ship's papers are in regular form, and show a bona fide neutral origin and destination of ship and cargo, the fact of the search having been made is noted upon them by endorsement, the search-party retires, and the vessel is allowed to proceed on its voyage.

If the papers indicate a hostile destination, the manifests, invoices, and bills of lading are examined, to ascertain whether there are contraband articles on board. If such be found, or if the vessel be destined to a blockaded port, the ship is declared a prize, her papers are sealed, and she is sent into port under a prize - master for adjudication. A similar course is pursued if there is sufficient ground for believing that her papers are false, if any of them are concealed or have been destroyed with a view to evade examination, or if spoliation has been practised.'

Release of Vessel on Surrender of Contraband Cargo. A practice has obtained to some extent of releasing a neutral ship and allowing it to continue its voyage on condition that the contraband part of the cargo be surrendered. This method of procedure is irregular, without warrant of law, and is likely to lead to serious complications. The captor, by assuming some of its functions, greatly embarrasses the proper prizecourt in its action upon the captured property. The ship's papers, which in most cases constitute all the evidence upon which the court bases its decree, remain with the neutral vessel, and the court is obliged to proceed in the case without

'Dahlgren, Int. Law, p. 100; Snow, pp. 159-161; Glass, pp. 158-162; III Dig. Int. Law, § 325.

'Hall, § 273; the Eleanor, 2Whea

ton, 262; I Pistoye et Duverdy, p. 237; Annuaire, Inst. de Droit Int. 1883, p. 214; III Phillimore, pp. 533-536.

sufficient information. The master, under his general authority as such, cannot effect a legal surrender of a portion of his cargo in such a way as to bind the owners. His action, therefore, in a doubtful case, leaves to the owners the right of demanding through their government the restoration of the surrendered cargo. For these reasons the practice should not be resorted to unless authorized by treaty, or unless the owner, either personally or by his duly authorized representative, gives a legal consent to the proposed surrender.'

Resistance to Search or Capture. The right to evade search or to resist capture depends upon the nationality of the ship upon which such right is attempted to be exercised. As the merchant vessel of a belligerent and any property of the enemy which it carries are alike subject to capture, the penalty of condemnation is not increased or affected by resistance or evasion; an enemy's merchant ship may therefore resist, or may resort to fraud, deceit, or stratagem in order to evade search or avoid capture. In respect to neutral ships, however, the matter rests upon quite a different basis. The existence of the right of search on the part of the belligerents implies the existence of a corresponding duty of submission on the part of the neutral. A neutral merchant ship is, therefore, bound to submit to search, in time of war, upon the demand of a public armed vessel or a lawfully commissioned cruiser of either belligerent; if resistance be attempted, or if fraud, deceit, or spoliation be resorted to, the effect will be to cause the condemnation of the property so withdrawn from search or examination. The belligerent is also authorized, in the event of resistance, to use such force as will enable him to execute the search or to effect the capture.'

'Dana's Wheaton, p. 665, note. See, also, note 1, p. 456, ante.

'The Catharina Elizabeth, 5 Rob. Adm. Rep. p. 232.

'II Halleck, p. 287; Snow, pp. 159-161; II Ortolan, pp. 259, 260; Hall, §§ 275, 276; V Calvo, §§ 29612968; III Phillimore, §§ 336-340;

Bluntschli, §§ 819-826; Glass, p. 164; the Maria, I Rob. Adm. Rep. p. 375; the Despatch, 3 Ibid. p. 279; the Elsabe, 4 Ibid. p. 408; the Purissima Concepcion, 5 Ibid. p. 33; the Fanny, 1 Dodson, Ibid. p. 448; the Topaz, 2 Acton, Ibid. p. 20; the Short Staple, 9 Cranch, 55; the

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