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prize court jurisdiction and the distribution of prize money may be just as important as when the seizure is made elsewhere.
But where a seizure is made in the territorial waters of the enemy, the question is plainly governed by international law. If the seizure is made in an enemy seaport and made by naval forces, there would seem to be no reason for not applying the same law as if it were made on the high seas. Nor would it seem material that the port is an inland port not open to maritime navigation, though in such ports neutrals are less likely to be concerned. The limitation in the Italian code that naval operations should be confined to territorial waters open to maritime navigation seems to have little to recommend it. On a large river like the Mississippi or the Danube, in spite of recent armament developments, it might still be possible to have extensive operations conducted by gunboats, and they might effect captures in ports where maritime navigation is excluded. If this has not been entirely excluded by long-range guns, the Italian limitation on naval capture seems impracticable. It would call for a special rule for large bodies of water like the Victoria Nyanza.
Something may be made to depend on whether the boats seized are oceangoing or devoted to inland navigation. The suggestion of the Italian court that it would be absurd to permit an ocean-going vessel to escape maritime capture by taking refuge in a river would seem to call for an application of maritime law to all captures of ocean-going vessels on inland rivers; but the possibility of capturing non-ocean-going vessels at sea will seldom exist, and land law might very well be applied in dealing with them. The two types may differ also in capacity to escape a belligerent's power and therefore to continue in enemy service; but a non-ocean-going vessel on a large highway like the Danube might easily elude belligerent capture by a voyage on the river. Since many river craft are small and engaged in local work for small traders, the same arguments which led to the exemption from maritime capture of small boats employed in local trade in the eleventh Hague Convention of 1907, would seem to call for some exemption for most river vessels,69 and this would seem to be an argument for the more lenient consequences of applying land law.
The nature of the force effecting the seizure seems also an important factor. To apply maritime law to seizures made by land forces would greatly complicate the operations of armies which are accustomed to deal with booty much more summarily than naval forces deal with prize. In some cases of continental warfare, it would mean that the title to property seized on rivers would have to await the adjudication of prize courts in order to satisfy neutrals. Armies act less formally in seizing property, and in seizing many kinds of property the distinctions usually possible in maritime warfare would
69 These arguments did not prevail during the past war as to tugs and lighters in a port, however. Deutsche Kohlen Depots (1916) 2 British and Colonial Prize Cases 439, (1919) A. C. 291.
be impracticable. Access to prize courts would be most difficult with respect to some river craft, unless tribunals could be set up ad hoc. To take an extreme case, a European army operating on an American river could not possibly take small river craft, which it might seize, into a port where there is a prize court. The procedure in prize courts has been built up with reference to vessels which can navigate the high seas,o and some changes would be needed to make it adequate for the condemnation of river craft.
Mere analysis of our existing formal conceptions will not solve the problem. The line will be drawn, with reference to specific inclusions and exclusions, as considerations of policy or convenience at the time dictate. During the past century there was a clear tendency toward relieving the owners of private property of many of the burdens of warfare. In the law of warfare on land this tendency has gone very far, and it finds some expression as to river boats in Article 53 of the regulations annexed to the Hague Convention. Since the Brussels Conference of 1874 concerning the customs of war on land, the current of opinion seems to have supported the more lenient treatment of river vessels accorded by the law of warfare on land. Effectiveness in the conduct of land operations would seldom be diminished if land law rather than maritime law were applied to the capture of river boats.
A simple case for applying land law would be that of the seizure by an invading or occupying land force of a non-ocean-going vessel on an inland waterway or in an inland port. On the other hand, a simple case for applying maritime law would be that of the seizure of an ocean-going vessel by naval forces on an inland waterway open to maritime navigation. To cases between these two extremes, the application of the one or the other law cannot be forecast with certainty.
If the distinction will not often be of great importance, it ought nevertheless to be kept in mind by the draftsmen of any future conventions on the laws and customs of war on land or at sea.
70 E.g., the law as to “Custody of the Res," on which see Tiverton, Prize Law (London, 1914), p. 65 f.
THE RIGHTS OF VISIT AND SEARCH, CAPTURE, ANGARY AND
BY JENNINGS C. WISE
That the laws of nations with respect to the right of visit and search, and the right of capture were well defined and established in 1914 can not be doubted. The best proof that there were such laws in force is the fact that there was not in the sisterhood of nations a single enlightened state whose prize courts had not undertaken to interpret and administer them, and to award damages for their violation. The interpretations of these courts may have varied, just as the interpretations of statutory law vary among the municipal courts of the same state, but there were, nevertheless, such laws, and they were interpreted. Furthermore, it would appear that by the courts of Great Britain and the United States in particular, they were interpreted and administered with as high a degree of uniformity as the same law is ordinarily interpreted and administered by the courts of two or more different states of the American Union.
From the British and American decisions prior to 1914 it appears that the rights of visit and search, and of capture are deemed to be inherent to the status of belligerency. But they are in no sense the equivalent of an indiscriminate right to seize, harry, or interfere with neutral commerce. Of the two rights mentioned the right of capture is necessarily the greater
It is much misunderstood, which readily appears from the fact that even the courts and the text writers constantly speak of unlawful captures when there can be no such thing.
No belligerent has the right to seize a neutral ship unless it is believed that the vessel is engaged in some unneutral service, or that the cargo, by reason of its character or destination will, if unmolested, be of direct aid to the enemy in the prosecution of the war.
An examination of the authorities will show, however, that a mere belief that a ship is liable to capture is not sufficient. The belief must be founded upon evidence sufficient to justify the same. Oppenheim clearly states the law as follows:
According to customary rules of International Law, adopted also in the unratified Declaration of London, a neutral vessel may be captured if visit or search establishes the fact, or arouses grave suspicion, that she is rendering unneutral service to the enemy.'
1 Sec. 411, Vol. II, page 596.
It must not be assumed from this statement of the law that visit and search are prerequisites of capture. Capture may be made outright without a visitation or a search, upon exactly the same grounds that would justify the latter.
Circumstances creating a reasonable suspicion of conduct warranting her capture are sufficient. Thus, it is seen that a seizure is a capture only when it is made upon certain justifiable grounds, and that when the requisites of a lawful seizure exist the seizure becomes a technical capture in the sense of the law. Therefore, there can be no such thing as an unlawful capture since a seizure that is not lawful is not a capture.
Then, too, great confusion has resulted from the inexact use of the terms capture and prize.
Prize, in maritime law, is the apprehension and detention at sea of a ship or other vessel, by authority of a belligerent power, either with the design of appropriating it, with the goods and effects it contains, or with
that of becoming master of the whole or a part of its cargo. This definition of the word prize relates to the act of taking the property seized. It is clearly the definition of a verb. Neutral vessels and their cargoes that have merely been captured but have not been adjudicated to be prize, are not prize, and should not be spoken of as such.
Where there is a probable cause to believe that a vessel is liable to capture, it is proper to take her and subject her to the examination and adjudication of a prize court.4
Until the capture becomes invested with the character of prize by sentence of condemnation, the right of property is merely in abeyance, or
in a state of legal sequestration.5 Prize includes enemy property that has been captured on the high seas or in territorial waters belonging either to the captor or to the enemy, and the property of neutrals that has been captured and condemned to confiscation by way of penalty. Thus, it is seen, that enemy property becomes prize so soon as it is captured, whereas, neutral property that is captured does not become prize until it has been condemned.
How absurd then is the frequent use of such an expression as “the unlawful capture of prize," an expression which is conclusive either of extreme ignorance of the law, or an extreme carelessness on the part of those employing it.
But prize, unlike capture, may be either lawful or unlawful. This must appear from a consideration of the purpose of capture.
The purpose of capture is two fold. On the one hand it is to prevent the 2 The George, Fed. Cas. No. 5, 328. 31 C. Rob. 228. Bened. Adm. Sec. 509. • Talbot v. The Amelia, 4 Dall. (U. S.) 34.
• Wheaton's International Law, 5th Eng. Ed. p.58, referring to Tudor's Leading Cases on Maritime Law, pp. 1092, 1093, and Calvo, II, Sec. 1236.
enemy from receiving the unlawful neutral aid which it is believed a vessel and its cargo, either or both, may contribute if the vessel be allowed to proceed. On the other hand it is to enable a legal proceeding to be initiated in order to ascertain whether in fact the vessel and the cargo which have been detained merely as a precautionary measure in the first instance, are capable of contributing unlawful aid to the enemy and are subject at law to the penalty of condemnation as prize for attempting to do so.
Obviously, therefore, since a legal proceeding is necessary to determine the facts, and it is lawful to detain the vessel for that purpose, the seizure may be lawful, or a capture, whereas the proceedings may establish the entire innocence of the vessel or its cargo, and the consequent immunity of either or both from the penalty of condemnation as prize. Again, the lawfully seized, or captured vessel may be unlawfully condemned as it would be if confiscated as prize without due process of law, or upon insufficient evidence of an unneutral character or mission. In the latter case the offense at international law consists not of the capture but of the condemnation of an innocent vessel, for the seizure was lawful while it was the condemnation that was unlawful. Therefore, while it is highly improper to speak of property unlawfully captured as prize, it is entirely correct to speak of captured property being unlawfully condemned as prize.
From the foregoing we may conclude that if a belligerent seize a neutral merchant vessel on the high seas without a justifiable belief that the vessel or its cargo is liable to condemnation as prize, the seizure is not a capture but an unlawful seizure, and the case is not one of prize but a mere violation of the sovereign right of jurisdiction of a neutral state, being no more nor less than unwarranted interference with neutral commerce in derogation of the neutral rights.
So, too, we may conclude that if a belligerent capture a neutral vessel on the high seas and appropriate to its uses the vessel and its cargo, either or both, before the property confiscated has been adjudicated by a prize court to be subject to the penalty of condemnation as prize, the appropriation amounts to no more nor less than the confiscation of neutral property on the high seas for which there is no sanction at international law.6
Growing out of and ancillary to the greater right of capture is the right of visit and search. Said Chief Justice Marshall in The Nereide:
What is this right of search? Is it a substantive and independent right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so, or to indulge the idle and mischievous curiosity of looking into neutral trade, or the assumption of a right to control it?
But this is not its character.? 6 A seizure of this character is entirely different from the requisition of neutral property and the taking of neutral property under the exercise of the right of angary, as will appear later.
79 Cranch, 388, 427.