THE DESTRUCTION
UNDER
I NTE R NATION AL LAW
,';i« FREPEIWCK SMITH, K.C., M.P,
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THE
DESTRUCTION OF MERCHANT SHIPS
All rights reserved
THE DESTRUCTION
MERCHANT SHIPS
UNDER
INTERNATIONAL LAW
BY
THE RIGHT HON.
SIR FREDERICK SMITH, K.C., M.P.
HIS majesty's attorney-general
Honorary Fellow of Wadham College, Oxford
MCMXVII
LONDON & TORONTO
J. M. DENT & SONS LTD.
PARIS: J. M. DENT ET FILS
NEW YORK : E. P. DUTIGN ^ CO.
: 63 {
PREFACE
My learned friend, Dr, Coleman Phillipson,
whose authority upon such matters is generally
recognised, has given me the greatest possible
assistance in the preparation of this little book.
His acquaintance with the relevant authorities,
which is exhaustive, has been placed unre-
servedly at my disposal.
It may be thought that to compile a treatise
\> at this moment on the legality of sinking mer-
^ chantmen is much as if one were to read the
^' Larceny Acts in a Thieves* Kitchen. It is
^ certainly true that the matter has, for the
' moment, passed far from the hands of lawyers
V and awaits decision before a sterner tribunal.
, ' But it would nevertheless appear that a useful
^ purpose may be served by collecting in a small
"^ volume the authorities — and amongst them
' German authorities — which define the law as
^ it was understood by every civilised country in
^ the world until the developments of the present
^ war.
Such an examination may within a convenient
5
:2t>
DESTRUCTION OF MERCHANTMEN
compass enable those who suffer from the
present Reign of Terror to understand and
formulate their legal grievance, and it will not
be without its uses when the revindication of
International Law ushers in the day of retribu-
tion. And if {per incredibile) the result of the
struggle should be to consecrate the breach of
laws universally recognised, if the precedents of
ages should be extinguished in a welter of
savagery, this treatise will serve as a melancholy
reminder, to those who live (or die) under the
changed conditions, of the humaner methods in
which their ancestors, almost from the twilight
of the world, had waged their maritime wars.
In such an age, should it ever come —
forsan haec meminisse juvabiU
FREDERICK SMITH.
Attorney-General's Chambers,
Law Courts,
March 9, igiy.
CONTENTS
PAGE
Official Documents, etc 9
Judicial Cases referred to lo
Authors referred to 1 1
I. ENEMY MERCHANTMEN
1. Visit and Search, and Resistance Thereto
(a) Whether belligerent warships may dispense with visit
and search in regard to enemy merchantmen
(6) Whether enemy merchantmen have the right to evade
search or defend themselves against attack
(c) The legal position of armed merchantmen
2. The Relation of Seizure to Ownership .
3. The Destruction of Enemy Merchantmen
(a) Juristic opinion ......
(6) The attitude of states and their express regulations
(c) The views of judicial courts ....
(d) Practice in wars ......
(c) The question of passengers, crews, and ship's papers
(J) Neutral goods on board destroyed merchantmen
(g) Special exemptions from attack and destruction .
14
14
17
20
21
27
27
38
42
44
45
54
61
II. NEUTRAL MERCHANTMEN
A. Under the Customary Law 70
1. Visit and adjudication ...... 70
2. When attack is excusable or justifiable ... 74
3. The destruction of neutral merchantmen ... 78
(a) General rule : doctrine and attitude of states . 78
(6) Alleged exceptions ; whether compensation
" justifies " destruction 85
(c) Russo-Japanese War ; whether the customary
law was modified thereby .... go
(d) The second Hague Conference and the London
Naval Conference 95
B. Under the Declaration of London .... 98
C. Rules and Practice in the Present War ... 99
Index 103
7
OFFICIAL DOCUMENTS, ETC
American Journal of International Law.
American State Papers : Naval Affairs.
Annuaires de I'Jnstitut de Droit International.
British and Foreign State Papers.
Deuxieme Conference Internationale de la Paix : Actes et Documents*
Diplomatic Correspondence of the United States.
Hansard : Parliamentary Debates.
Opinions of United States Attorneys-General.
Parliamentary Papers.
Revue de Droit International (Bruxelles).
JUDICIAL CASES REFERRED TO
Acteon, The (1815), 65, 79, 87, 90
Andersen v. Marten {ig68), 26
Aryol, The, see Orel, The
Atalanta, The (1818), 60
Barenfcls, The (1915), 65
Bclgia, The (191 5), 62
Bellas, The (1914), 65
Berlin, The (1914), 65
Buena Ventura, The (1899), 62
Catherina Elizabeth, The (1804),
18,59
Carolina, The (1807), 67
Chile, The (1914), 65
Commodore Stewart's Case (1864),
25
Cosmopolite, The (i 801), 24
Cushing V. U.S. (1886), 18
Daifjie, The (1800), 67
Elizabeth, The (1746), 68
Erymanthos, The (1914), 65
Fanny, The (1814), 59, 61
Felicity, The (1819), 42, 49, 65,
72, 79, 87, 90
Flad Oyen, The (1799), 23
Flindt V. Scott (1814), 65
Fortuna, The (1802), 56
Germania, The (1915), 62
Glitra, The (191 5), 57
Goss V. Withers (1758), 24
Gutenfels, The (1915), 63
Hakan, The (1916), 99
Henrick and Maria, The (1799), 24
Hipsang, The (1907), 91, 92
Hoffnung, The (1800), 75
Hooper v. U.S. (1886), i8
Ikhona, The (1907), 91, 92
Indian Prince, The (1916), 57
Kierlighett, The (1800), 24
Knight Commander, The (1905),
91, 92, 94
Kotik, The (1905), 65
La Gloire, The (1804), 67
La Rosine, The (1800), 67
Le P^gou (or Pigou) (1800), 18
Lesnik, The (1904), 65
Leucade, The (1855), 72, 79, 87
Lola, The (1899), 65
Ludwig, The (1871), 43, 45, 56
Maria, The (1915), 66
Marquis Bacquehem, The (1915),
65
Miller v. The Resolution (i78i),a5
Mo we. The (19 14), 63
Nadajda, The (1905), 62
Nereide, The (1815), 18, 60, 61
Oldhamia, The (1907), 91, 92
Ophelia, The (1915), 67
Orel, The (1905), 67
Paklat, The (19 15), 67
Panama, The (1899), 20, 62
Paquete Habana, The (1899), 65
Peacock, The {1802), 51
Pedro, The (1899), 62
Perkeo, The (191 4), 65
Prinsesse Marie, The (1908), 9a
Prinz Adalbert, The (1916), 62
Rufus, The (181 5), 90
Santa Cruz, The (1798), 22
Scotia, The (1871), 54
Several Dutch Schuyts (1805), 18
St. Kilda, The (1908), 91, 92, 93
Simla, The (1915), 69
Stevens v. Bagwell (1808), 24
Tetartos, The (1906), 92
Thea, The (1904), 92
Two Friends, The (1799), 18
U.S. V. Quincy (1832), 18
Usparicha v. Noble (181 1), 65
Venus, The (1803), 67
Vorwarts, The (1871), 43, 45, 56
William, The (181 5), 90
Young Jacob and Johanna (1798),
66
Zee Star, The (1801), 87
10
AUTHORS REFERRED TO
H. Barboux, Jurisprudence du Conseil des Prises Pendant la Guerre de
1870-1871 (Paris, 1872).
T. Baty, Britain and Sea Law (London, 191 1).
M. Bernard, Historical Account of the Neutrality of Great Britain during
the American Civil War (London, 1870).
J. C. Bluntschli, Das Moderne Volkerrecht (Nordlingcn, 1872).
C. dc Boeck, De la Propriete Privee Ennemie sous Pavilion Ennemi
(Paris, 1882).
J. A. BoUes, " Why Semmes of the Alabama was not tried/' in Atlantic
Monthly, 1872, vol. 30, p. 150.
A. Bulmerincq, " Lc Droit des Prises Maritimes," in Revue de Droit
International, vols. x. pp. 185, 384, 595 ; xi. pp. 152, 321, 561 ;
Tm. p. 187 ; xiii. p. 447 ; xiv. p. 114.
C. Calvo, Le Droit International (Paris, 1887-1896).
F. de Cussy, Phases et Causes Celebres du Droit Maritime des Nations
(Leipzig, 1856).
F. Despagnet, Cours de Droit International Public (4c ed. par C. de
Boeck, Paris, 19 10).
C. Dupuis, Le Droit de la Guerre Maritime, etc. (Paris, 1899).
P. Fiore, Nouveau Droit International Public (Paris, 1869).
W. da Fonseca, Der Deutsche Seehandel und die franzosischen Prisen-
Gerichte (Berlin, 1873).
Sir E. Fry, " The Rights of Neutrals as Illustrated by Recent Events "
(a paper read before the British Academy, May 23, 1906) in Pro-
ceedings of the British Academy, vol. ii, (reprinted, London, 1906).
J. W. Garner, " Some Questions of International Law in the European
War," in American Journal of International Law, October, 1915 ;
January, 191 6.
L. Gessner, Le Droit des Neutres sur Mer {ze ed. Berlin, Paris, 1876).
A. W. Heffter, Le Droit International de l' Europe (4e ed. par F. H.
Geffcken, Berlin, Paris, 1883).
A. S. Hershey, The International Law and Diplomacy of the Russo-
Japanese War (New York, 1906).
II
AUTHORS REFERRED TO
A. Pearcc Higgins, Defensively Armed Merchantmen and Submarine
Warfare (London, 1917).
The Hague Peace Conferences (Cambridge, 1909).
T. E. Holland, Manual of Naval Prize Law (London, 1888).
" Neutral Duties in Maritime War/' in Proceedings of the British
Academy, vol. ii.
Letters to the Times upon War and Neutrality (London, 1909).
C. H. Huberich and R. King, The Prize Code of the German Empire
(New York, London, 191 5).
C. J. B. Hurst and F. E. Bray, Russian and Japanese Prize Cases (London,
1912).
J. Kent, Commentary on International Law, ed. by J. T. Abdy (Cam-
bridge, London, 1878).
T. J. Lawrence, War and Neutrality in the Far East (2nd ed. London,
1904).
C. de Martens, Causes Celebres (Leipzig, 1859).
F. de Martens, Traite de Droit International, Trad, du russc par
A. Leo (Paris, 1883-1887).
G. F. de Martens, Les Armateurs, les Prises, et les Reprises (Gottingue,
1795)-
J. B. Moore, Digest of International Law (Washington, 1906).
L. Oppenheim, International Law (London, 1912).
T. Ortolan, Regies Internationales et Diplomatie de /a'^Mer ^Paris, 1864).
J. M. Pardessus, Collection des Lois Maritimes (Paris, 1837).
F. Perels, Manual de Droit Maritime International JPzris, 1884).
C. Phillipson, International Law and the GrearlFar (London, 1915).
A. de Pistoye et C. Duverdy, Traite des Prises Maritimes'^iPziis, 1855).
J. B. Scott, The Hague Peace Conferences of 1899 and-' 1907 (Baltimore,
1909).
S. Takahashi, International Law applied to the Russo-Japanese War
(London, 1908).
Sir T. Twiss, Law of Nations : Time of War (Oxford, 1875).
R. J. Valin, Commentaire sur VOrdonnance de laJMarine de i68i (Paris,
1766).
Traite des Prises (Paris, 1763).
J. Westlake, International Law : War (Cambridge, 1913).
H. Wheaton, A Digest of the Law of Maritime Captures and Prizes
(New York, 1815).
T. Woolsey, Introduction to the Study of International Law (5th ed. 1879).
12
THE DESTRUCTION OF
MERCHANT SHIPS
Of the many questions raised in the present war
the destruction of merchantmen is one of the
most important. The practice of destroying
them has been carried to an extent far greater
than in any previous war ; and unparalleled
losses have been inflicted on the subjects of
neutral as well as of the belligerent states. We
propose, therefore, to examine the legal position
of merchant ships. First, we shall consider
enemy merchantmen. After investigating the
questions whether belligerent warships may
dispense with visit in regard to such vessels,
whether enemy merchantmen may evade search
or defend themselves in case of attack, and
whether the arming of such ships for defensive
purposes is legitimate, we discuss the relation
of seizure to ownership, and then examine more
fully the question of destruction. The views of
jurists, the pronouncements of judicial courts,
the express regulations of states, and the actual
practice in previous wars are set forth. Then
the duties with regard to passengers, crews, and
13
DESTRUCTION OF MERCHANTMEN
ship's papers, the position of neutral goods on
board destroyed enemy merchantmen, and the
classes of vessels that have been specially
exempted from capture and destruction are
dealt with. Next, we consider neutral merchant-
men : the practice of visit and adjudication ;
when an attack on them is excusable or justifiable;
the general rule of non-destruction, and the
alleged exceptions thereto ; whether military
necessity or readiness to pay compensation is a
valid ground for destruction ; the practice in
the Russo-Japanese War, and whether it furnishes
precedents in modification of the customary
law ; the discussions at the Second Hague Con-
ference and at the London Naval Conference ;
the rules of the Declaration of London, and how
far they are binding ; and, lastly, the rules and
practice in the present war.
PART L ENEMY MERCHANTMEN
!♦ Visit and Search, and Resistance Thereto
(a) Whether belligerent warships may dispense
with the practice of visit and search in regard
to enemy merchantmen
Differentia- From the point of view of legitimate belligerent
vSe°s operations, it is necessary to draw a distinction
14
DESTRUCTION OF MERCHANTMEN
between vessels belonging to the enemy state
and those belonging to the subjects of the enemy
state, and between enemy vessels commissioned
for and engaged in the service of war and vessels
engaged in peaceful commerce and other pacific
activities. Vessels belonging to the enemy state,
and notably warships, may be attacked, captured,
or destroyed by a belligerent man-of-war any-
where on the high seas or in the territorial waters
of the contending belligerents, at any time and
without notice. But enemy merchantmen are
not to be subjected to such summary and drastic
treatment.
There are several reasons for such differen- Reasons for
tiation. In the first place enemy merchantmen feremiation
are not combatants. International law and
practice have long recognised a line of demarca-
tion between combatants and non-combatants,
both in war on land and in war on sea. In the
case of the former we have now the Hague Regu-
lations ^ ; and in the case of the latter we have,
on the one hand, the Declaration of Paris, 1856,
which abolished privateering; and, on the
other, the more detailed provisions of the seventh
Hague Convention.^
» Hague Convention (1907), No. IV. (Regulations respecting the
laws and customs of war on land), Arts, i, 2.
' Hague Convention (1907), No. VII. {Relative to the conversion
of merchant ships into warships), which is — and especially Art. i —
15
DESTRUCTION OF MERCHANTMEN
Secondly, an enemy merchant ship may
actually belong to a class of vessels exempted
from capture and destruction by special con-
ventions and usage* (These are to be dealt with
later.)
Thirdly, enemy merchantmen may have
neutral persons and neutral cargoes on board ;
for neutral passengers are not debarred from
sailing in the merchant ships of a belligerent,
neutral crews are not prohibited from taking
service therein, and neutral merchants are not
forbidden to continue their commercial inter-
course with the belligerents and to ship their
goods in the merchant ships belonging to any of
the belligerents.
Declaration Indeed, the Declaration of Paris expressly
provides that neutral goods, with the exception
of contraband of war, are not liable to capture
under the enemy flag*^
Visit neces- From these considerations it follows that the
^^^ commander of a belligerent warship may not
dispense with the practice of visit and search in
regard to suspected or enemy merchantmen. It
is his duty, before resorting to forcible measures,
a corollary of the above-mentioned provision of the Declaration
of Paris, and constitutes an additional guarantee against recourse
to privateering. See A. Pearce Higgins, The Hague Peace
Conferences (Cambridge, 1909), p. 312.
' Art. 3,
16
DESTRUCTION OF MERCHANTMEN
to ascertain the true character of the vessel, the
nationality of the passengers and crew on board,
and the nature and destination of the cargo.
The duty to preserve the ship's papers, and the
treatment of the persons on board, in case of
capture or destruction of the vessel — whenever
the latter alternative may excusably or justifiably
be adopted — ^will be considered later. For the
present it is sufficient to emphasise that the
belligerent is obliged to visit an enemy mer-
chantman, and that he has no right to destroy
her in any case without examining her or making
a reasonable attempt to examine her.
(b) Whether enemy merchantmen have the right
to evade search or defend themselves against
attack
On the other hand, a merchantman not being Merchant-
. , . . , 11. rr ' • • men may not
entitled to engage in belligerent oiiensive activi- take the
ties may not exercise the right of visit which is ° ^°^^^
reserved exclusively for warships. But the legal
incapacity to assume the offensive by no means
implies necessarily a legal incapacity to act on
the defensive. A belligerent merchantman being
called upon by a hostile vessel to heave to may
disregard the summons and do her utmost to
escape. If brought to a standstill, she may use
17 B
DESTRUCTION OF MERCHANTMEN
May resist all the resoufces at her command to resist visit
^^seichand search or capture.^ In that case she will,
of course, become liable to attack and to the
consequences thereof. Her crew, then, really
become combatants, and if captured are to be
treated as prisoners of war. Were they to act
purely on the offensive on their own initiative,
they might be regarded by the captor as ** war
criminals " and tried by court-martial. Finally,
if they act neither on the offensive nor on the
defensive and are captured, they are to be dealt
with in accordance with the provisions of the
eleventh Hague Convention (1907).'
Defensive- It is on ncutral merchantmen that inter-
measures national law imposes the duty to submit to visit
and search ; but in the case of a merchantman
belonging to a belligerent, no juristic doctrine,
no judicial pronouncement, and no example of
international practice ' can be found that con-
1 Cf. The Nereide (1815), 9 Cranch, 388— Marshall, C. J.,
delivering the opinion of the Supreme Court of the United
States ; see also U.S. v. Quincy (1832), 6 Peters, 445 ; 10 Curtis,
189 ; Cashing v. U.S. (1886), 22 Court of Claims, i ; Hooper v.
U.S. (1886), 22 Court of Claims, 408 ; in the English Prize
Court, The Two Friends (1799), i C. Rob., 271 ; The Catherina
Elizabeth (1804), 5 C. Rob., 232 ; Several Dutch Schuyts (1805),
6 C. Rob., 48 ; in the French Prize Court, Le Pdgoa (or Pigou)
(9 prairial an VIII.) (1800), 2 Pistoye et Duvcrdy, 51.
* Hague Convention (1907), No. XI. Arts. 5-7.
' The right of resistance is recognised expressly or impliedly
in the regulations of various states, e.g. the United States Naval
18
DESTRUCTION OF MERCHANTMEN
demn resistance as an illegitimate act. To offer
resistance to a warship may, in the case of an
enemy merchantman, perhaps be contrary to
prudence ; it is not contrary to law. Neither
jurisprudence nor commonsense could lay down
a rule whereby, for example, the greatest and
most valuable liner would be bound to submit
to the summons and be at the mercy of the
smallest and most insignificant enemy vessel
that happened to fulfil the broad requirements
conferring the status of a combatant. Thus it is
legitimate for a merchantman that finds it im-
possible to escape from the pursuit of a hostile
submarine to defend herself by heading for it,
compeUing it to submerge, and then making off.
If, perchance, the merchantman should thus
ram the submarine, the act will be justified, and
doubly so when the merchantman has reason-
able ground for fearing that the submarine, in
pursuance of the policy of the state to which it
belongs, will adopt a proceeding contrary to the
established law. Whether such inference is
prima facie deducible, and whether the submarine
is entitled to fire a torpedo without warning
through fear that the merchantman possesses
War Code (1900), Art. 10, Par. 3 ; the Russian Prize Regula-
tions (1895), Art. 15 ; the Italian Code for the mercantile marine
(1877), Art. 209.
19
DESTRUCTION OF MERCHANTMEN
efifective means of self-defence, will be con-
sidered presently.
(c) The legal position of armed merchantmen
Just as an unarmed merchantman may offer
resistance to visit and search and may retaliate
in case of attack by bringing the whole force of
her momentum to bear on the attacking vessel,
so a merchantman that happens to have arms on
board may use them for purposes of self-defence.
Use of arms Moreover, a merchant ship may deliberately
^^ °^"^men introduce arms on board, with the avowed in-
tention of protecting herself, her passengers and
crew, and her cargo. The introduction of arma-
ment intended to be used exclusively for de-
fensive purposes is not contrary to international
Recognition law and practice. It is sanctioned by the long-
mltd^t established custom of many maritime powers ;
'"^"in this country the practice has definitely been
established for at least three centuries. It has
frequently received express recognition in courts
of law,^ and in the naval codes and ordinances
of several states ^ ; and during the present war,
despite the objections urged by this or that
1 Cf. The Panama (1899), 176 U.S., 535.
2 Cf. the Regulations of the United States of March 25, 1916 :
American Journal of International Law, Supplement, October,
1916, pp. 367-372.
20
DESTRUCTION OF MERCHANTMEN
belligerent, various neutral powers, including
the United States, have in their Regulations re-
cognised its legality. In short, the legal status
of a defensively-armed merchantman in no way
differs from that of an unarmed merchantman
in regard to the enemy ; so that all that has
been said above relative to the latter applies
equally to the former,^
2, The Relation of Seizure to Ownership
When a belligerent warship captures an un-
resisting merchantman or overcomes the re-
sistance of a resisting vessel, the question of
the proprietary relationship of the captor to his
prize at once arises ♦ Here a distinction may be
made according as the prize is an enemy com-
missioned vessel, or an enemy merchantman, or
a neutral merchantman. In the case of an enemy property in
commissioned vessel it is universally admitted pXk vessel
that capture immediately and definitively trans-
fers the ownership thereof to the captor, who
may therefore either take the vessel into port or
destroy her, as he thinks fit. All persons on board
become prisoners of war. All goods found on
^ This part of the subject need not be pursued further here ;
for full argument and citation of authorities, see A. Pearce
Higgins, Defensively Armed Merchantmen and Submarine War-
fare (London, 1917).
21
DESTRUCTION OF MERCHANTMEN
board similarly become the property of the
captor.
Property in In the case of an enemy merchantman, opinion
mcrchammanis not at all unanimous and practice is not
~^^vlew ciitirsly uniform. Under the earlier law the title
passed as soon as the capture became effective,
and the test as to when it became effective varied
with different states and at different times.
According to one view, supported by the Con-
solato del mare, the criterion was whether the
pri^e had been carried infra praesidia or to such
a secure place that the owner could have no
immediate prospect of recapturing it, as, for
example, the captor's or his ally's harbour, or
near a protecting fortress or squadron. Another
view held that the test was twenty-four hours'
possession.^ The tendency, however, of modern
Modem view doctrine is to regard the seizure of a private
enemy vessel as a somewhat analogous case to
that of the military occupation of enemy territory
in war on land ^ ; that is, that the captor's right
consists in a right of possession only, and that
the true owners are not divested of their pro-
perty in the vessel unless and until a sentence of
condemnation has been duly passed thereon by
a properly constituted prize court.
^ Cf. The Santa Cruz (1798), i C. Rob., 49, at pp. 58 seq,
2 Cf. Oppenheim, International Law, vol. ii. p. 231.
22
DESTRUCTION OF MERCHANTMEN
In 1799, during the war between Great Britain
and France, a British vessel, the Flad Oyen, was The Fiad
seized by a French privateer and carried into a ^^*"
Norwegian port. She was condemned by the
French Consul in ** a sort of process/* then
sold, and subsequently captured by the British,
The original British owner thereupon applied
for restitution, on the ground that the vessel had
not been validly condemned, and therefore that
the property therein had not been affected. Lord
Stowell (then Sir W. Scott) decreeing restitu-
tion observed that the requirement of due con-
demnation for transferring the ownership in
prize was a doctrine not peculiar to English
courts, but was in accordance with the general
practice of nations ; and that the adjudication
must be carried out in a proper judicial form
conformably to the law and usage of nations.^
In another case. Lord Stowell, after referring to
the rule of bringing the prize infra praesidittf
emphasised the necessity for adjudication for
the purpose of transferring the ownership : *' In
later times, an additional formality has been
required, that of a sentence of condemnation,
in a competent court, decreeing the capture to
have been rightly made, jure belli ; it not being
thought fit, in civilised society, that property of
^ The Flad Oyen (1799), i C. Rob., 135.
23
DESTRUCTION OF MERCHANTMEN
this sort should be converted without the sentence
of a competent court, pronouncing it to have
been seized as the property of an enemy, and to
be now become jure belli the property of the
captor. The purposes of justice require, that
such exercises of war should be placed under
public inspection and therefore the mere
deductio infra praesidia has not been deemed
sufficient. No man buys under that title ; he
requires a sentence of condemnation, as the
foundation of the title of the seller ; and when
the transfer is accepted, he is liable to have that
document called for, as the foundation of his
own. From the moment that a sentence of con-
demnation becomes necessary, it imposes an
additional obligation, for bringing the property,
on which it is to pass, into the country of the
captor ; for a legal sentence must be the result
of legal proceedings, in a legitimate courtf armed
with competent authority upon the subject
matter, and upon the parties concerned — 3.
court which has the means of pursuing the
proper enquiry and enforcing its decisions. These
are principles of universal jurisprudence applic-
able to all courts. . . .*' ^
^ The Henrick and Maria (1799), 4 C. Rob., 43, at p. 55. Cf.
The Kierlighett (1800), 3 C. Rob., 96 ; The Cosmopolite (1801),
3 C. Rob., 333 ; Goss v. Withers (1758), 2 Burr., 683, at p. 694 ;
Stevens v. Bagwell (1808), 15 Yes., 139. For American views, see
24
DESTRUCTION OF MERCHANTMEN
We may recall, as a point of some significance. Examples of
that in certain recent treaties of peace stipula- SaSes
tions were made for the restoration of such
captured vessels as remained uncondemned on
the conclusion of peace; for example, the
Treaty of Zurich, 1859, between France and
Austria (Art. IIL) ; the Treaty of Vienna, 1864,
between Denmark on the one side and Austria
and Prussia on the other (Art. XIIL) ; the Treaty
of Frankfort, 1871, between France and Ger-
many (Art. XIIL) — thirteen out of ninety cap-
tured German vessels were restored by France
conformably to this provision. It is conceivable
that in the minds of the respective negotiating
parties, the idea existed that in the absence of
condemnation the former owners were not com-
pletely divested of their proprietary rights in
the vessels, and that the captor states had not
yet, on that account, validly disposed of them.
In the absence, however, of express stipula-
Miller v. The Resolution (1781), 2 Dallas, i ; Commodore Stewart's
Case (1864), I Court of Claims, 113 ; Scott, Cases on International
Law (Boston, 1902), at pp. 915, 916 ; Opinions of US. Attorneys-
General, vol. iii. p. 379. For a Russian judicial view, see The
Knight Commander (1905), 1 Hurst and Bray, 75, where the
Supreme Court said : "... When once a prize court has
decided in favour of condemnation, the right to the captured
property must necessarily be considered as having passed to the
state from the moment of capture, and not from the date of the
order of the court respecting its condemnation."
25
DESTRUCTION OF MERCHANTMEN
tions in the treaty of peace, providing for the
disposition of uncondemned prizes after the
restoration of peace, a judicial investigation
cannot be dispensed with ; it is necessary in
order to determine the legitimacy of the capture
in each case, and consequently whether the
former owners have lawfully been deprived of
their property.^
Neutral pme As to a captured neutral vessel it is every-
where admittedly the rule that a decree of con-
demnation pronounced by a prize court is
essential in order that the ownership may be
transferred to the captor**
Hague Con- The established rule that the validity of the
capture of a merchant ship or her cargo, whether
neutral or enemy property be involved, is to be
decided by the prize court was recognised at the
Second Hague Conference.'
Judicial con- It would follow, therefore, that in default of
essentSi judicial Condemnation the prize does not belong
to the captor, so that he is not entitled to dispose
of her or destroy her as though she were his
^ Cf. C. Phillipson, Termination of War and Treaties of Peace
(London, 1916), pp. 218, 219.
2 Cf. Andersen v. Marten (1908), A.C., 334.
3 Hague Convention Relative to the Establishment of an Inter-
national Prize Court (1907), No. XII. Art. i. This Convention
has not been ratified, but this fact does not impair the applica-
bility of the customary rule.
26
DESTRUCTION OF MERCHANTMEN
own; though a vahd decree of condemnation
may perhaps operate retrospectively to the date
of capture.
It may be, however, that the captor claims to
destroy his prize on the ground that it is im-
possible for him at the time of capture to proceed
to take her in for adjudication. Is he then
justified in such circumstances in destroying
her i And if so, within what limits is the claim
of justification tenable S* To answer this ques-
tion is now our main task, to which the fore-
going observations were necessary for supplying
preparatory data.
3. The Destruction of Enemy Merchantmen
(a) Juristic opinion
Some writers have urged against the practice Economic
- . . , . . ° . ... . argument
of destruction that it is contrary to civilisation
and to humanitarian interests and to the economic
system of the society of states.^ But objections
of this kind apply equally to the whole of the
operations of warfare, whereby men are killed,
territories devastated, and property destroyed*
We are not concerned here, however, with con-
siderations of humanitarianism and international
^ Cf. C. de Boeck, De la Propriete Privee Ennemie sons Pavilion
Ennemi (Paris, 1882), pp. 301, 302.
27
DESTRUCTION OF MERCHANTMEN
policy, supremely important as they are ; we
are concerned only with the determination of
those rules and principles of a juridical character
which are applicable to the question.
Moral argu- There are one or two publicists who hold,
*°^°^ similarly, that the destruction of merchantmen,
including those belonging to the enemy, is a bar-
barous practice ; and there they leave the matter.^
Juristic views Others usually assert what they maintain to
be the general rule and then mention certain
exceptions thereto. It will be useful to refer to
a few representative views in order to see to
what extent they are in substantial agreement,
and then to determine how far they coincide
with the claims and practices of states.
Gessner Gessner : As a general rule the captor may
not scuttle or otherwise destroy the prize he has
taken in the open sea. He may do so, however,
and on his own responsibility, in circumstances
of force majeure ; for example, when he is
threatened with pursuit by the enemy, when he
is unable to put a prize crew on board, when he
is engaged on an urgent mission, and when it is
necessary for him to conceal his position and
course from his adversary's cruisers.'
^ For example, T. Woolsey, Introduction to the Study of Inter-
national Law (5th ed. 1879), Sec. 148.
" L. Gessner, Le Droit des Neutres sur Mer (ae ed. Berlin,
Paris, 1876), p. 348.
28
DESTRUCTION OF MERCHANTMEN
Heffter : The destruction of an enemy pri^e Heffter
is not justifiable except in case of extreme
necessity,^
FoNSECA : The general rule is that destruc- Fonseca
tion is prohibited, but in certain exceptional and
clearly defined cases it is permissible ; for
example, when the vessel disregards the war-
ship^s coup de semonce (affirming gun) or
offers resistance, when to take her into port is
a dangerous proceeding for the captor, when
he has no means available for taking the prize
to a place of safety, and when he has good reason
to fear recapture. These rules, adds the writer,
are generally admitted and are well known to
all maritime nations.*
Bluntschli : As a rule enemy prizes must Biuntschu
be taken into the captor's port for adjudica-
tion. Destruction is permissible only in case of
absolute necessity. The blockade of the captor's
port does not in itself constitute a case of
absolute necessity.^
BuLMERiNCQ : Speaking of the Russian Re- Buimerincq
gulations of 1869, he admits that destruction is
' A. W. Heffter, Le Droit International de I'Europe (4e ed.
par F. H. Geffcken, Berlin, Paris, 1883), p. 317.
2 Wollheim da Fonseca, Der deutsche Seehandel und die fran-
zosichen Prisen-Gerichte (Berlin, 1873), pp. 112, 113.
3 J. C. Bluntschli, Das Moderne Volkerrecht (Nordlingen, 1872),
Sec. 672.
39
DESTRUCTION OF MERCHANTMEN
justified in the circumstances specified therein ;
but he emphasises that it is necessary to define
them exactly and exclude other cases, so as
to prohibit the captor from resorting to this
extreme measure merely on his own judgment.^
F. de Mar- F. DE Martens : Like Several other writers,
^^°^ he speaks simply of '' prices/* and so, seemingly,
does not differentiate between enemy and neutraL
He appears to regard destruction as justifiable
for various reasons of convenience, though he
admits that the maritime laws of all states permit
it only in case of extreme necessity. He observes
that what is, therefore, an exceptional practice
will become for his country (Russia) the general
rule owing to the distance of its ports from the
scenes of naval operations ; and he foresaw that
the application of such rule would certainly
arouse against Russia ** un mecontentement
universel/' *
De Boeck De Boeck : Adjudication is necessary to
separate neutral property from enemy pro-
perty ; hence the general rule is that the
captured vessel must not be sunk but must be
taken into port. Most of the alleged reasons
^ A. Bulmerincq, " Le Droit des Prises Maritimes," in Revue
de Droit International (1879), p. 632. As to the Russian Regula-
tions of 1869, see infra.
^ F. de Martens, Traits de Droit International. Trad, du
russe par A. Leo (Paris, 1883-1887), vol. n. p. 126.
30
DESTRUCTION OF MERCHANTMEN
given in justification of destruction are unten-
able* Thus, if the prize is in such a condition
that it is difficult to keep her afloat, it is not
necessary to give her the coup de grace ; for the
captor can take possession of the whole or part
of the cargo and leave the vessel to her fate.
Further, if destruction is permissible on the
ground that a captured vessel moves so slowly
that she is liable to be recaptured, then the
commander of a cruiser would always deem it
justifiable to destroy a sailing vessel. When the
prize is of too small value to have a prize crew
put on board, then she is of too small value to be
destroyed. The fact that the prize is taken at a
considerable distance from the captor^s ports
cannot form the ground for a valid rule, inasmuch
as it would open the door to arbitrary conduct
and indiscriminate destruction. Nor can a
captor claim to sink his prize because he is
engaged on a pressing mission and has no time
to visit the captured vessel ; for if he has time
to stop and sink her he has time to put a prize
crew on board. Again, that the captor wishes to
conceal his movements from the enemy, would
make too elastic a rule, as such a reason might
be urged in almost any circumstances. Finally,
if the captor is informed of the approach of
superior enemy forces, he is not on that account
31
DESTRUCTION OF MERCHANTMEN
obliged to destroy his prize ; he can make off
with the prisoners and with what he can seize of
the cargo on board. The writer holds that in
none of these cases is destruction justifiable, and
that, as in land warfare, destruction for the sake
of destruction is illegitimate. He admits, how-
ever, that it is permissible in circumstances of
imperative military necessity, as, for example,
in the case of the sinking of a vessel for the
purpose of blocking a port or a river to prevent
the enemy's approach,^
Kent Kent : When captured property cannot be
taken into port the captor may proceed to
destroy or ransom it.*
Bernard BERNARD : ** Debarred from carrying their
prizes into their own ports which were under
blockade, or into those of neutral Powers, the
Confederates early adopted and continued to the
last the practice of burning them at sea. This is
certainly a destructive way of making war ; it
aggravates the waste and havoc which are in-
separable from hostilities directed against private
property, and of which the avowed purpose is
^ C. de Boeck, De la Propriite Priv4e Ermemie sous Pavilion
Ennemi (Paris, 1882), pp. 302-306. Cf. F. Despagnet, Coars de
Droit International Public (46 ed. par C. de Boeck, Paris, 1910),
p. 1 141.
2 J. Kent, Commentary on International Law, ed. by J. T.
Abdy (Cambridge, London, 1878), p. 251.
32
DESTRUCTION OF MERCHANTMEN
the temporary ruin of the enemy's commerce.
But it is not prohibited by any international law
or usage^ and it has not rarely been resorted to
by captors who, from fear of weakening them-
selves by sending home pri^e crews, or for any
other reason, have found themselves at a loss
how to dispose of their prey, . , . A formal
sentence of condemnation, of which the effect
is to establish the fact of hostile or construc-
tively hostile ownership, and the chief use to
convey a secure title to a neutral purchaser, is
superfluous where there is no neutral purchaser
and the original owner is confessedly an enemy.
Cases might, indeed, arise in which the whole or
part of the cargo was either owned by neutrals
or documented at least as neutral property ; in
such cases — and they were numerous — it was
the custom of the Confederate commanders, if
they were satisfied that the neutral claim was
genuine, to release the ship on a bond being
given for payment of a ransom ; if they thought
it fraudulent, to destroy both ship and cargo/' ^
Twiss : As enemy subjects have no locus Twiss
standi in our courts it is not obligatory to bring
enemy prices in for adjudication ; therefore,
^ Mountague Bernard, Historical Account of the Neutrality of
Great Britain during the American Civil War (London, 1870),
pp. 419, 420.
33 c
DESTRUCTION OF MERCHANTMEN
should any cause render it impossible to carry
them in, they may be destroyed.^ (It may be
added that the fact that a municipal provision
imposes a disability on enemy aliens does not
necessarily confer the right to dispense with an
international obligation, wiz* to proceed to
adjudication.)
Westiake Westlake : ** The capture of enemy ^s pro-
perty at sea ousts the enemy owner/ ^ Adjudica-
tion is necessary in order to secure the discipline
of the capturing country's fleet, and to ensure
that neutrals are not unjustly despoiled ; but as
against the enemy this procedure is not necessary.
Consequently, it is not illegal to destroy his
property at sea,^ (In reply to this statement,
however, we may point out that not infrequently
it is only by judicial investigation that enemy
property can be properly separated from neutral
property. Moreover, the discipline of the cap-
turing country's fleet is also to be secured in
its proceedings against the enemy, and a prize
court would, for example, have to take cognizance
of a capture effected in a privateering expedi-
tion.)
Holland PROFESSOR HOLLAND : ** For the protection
1 Sir Travers Twiss, Law of Nations : Time of War (Oxford,
1875), Sec. 167.
' J. Westlake, International Law : War (Cambridge, 1913),
p. 309.
34
DESTRUCTION OF MERCHANTMEN
of what may prove to be innocent neutral pro-
perty the captor is bound, in ordinary cases, to
place a prize crew on board the captured vessel,
and to send her in for adjudication by a prize
court. He may, however, find difficulties in the
way of doing this. He may, for instance, be in
immediate danger of attack by a superior force
of the enemy, may be unable to spare the men
needed to navigate the prize (especially now that
the work on a warship is so much more highly
specialised than was formerly the case), or may
be unable to spare coal for a prize which has
possibly exhausted her own supplies of fuel.
Under these circumstances what steps may be
taken by him i
** If ship and cargo belong, beyond question,
to the enemy, he may, after taking off the crew,
sink the ship, the property in which is now
vested in his own government.*^ ^
It will be noted that Professor Holland, like Destruction
Professor Westlake, holds that capture zpso ship °^"^'^'
facto transfers property in the enemy vessel and
enemy cargo to the captor's government. There
is, no doubt, a difference of opinion on this
point ; but, as has been shown above," the
^ T. E. Holland, " Neutral Duties in Maritime War," in
Proceedings of the British Academy, vol. ii. pp. 13, 13.
^ See supra, pp. 21 seq.
35
DESTRUCTION OF MERCHANTMEN
better — perhaps the only legally justifiable —
view is that the proprietary rights in captured
enemy merchantmen are not so transferred,
though they are admittedly transferred in the
case of captured public vessels of the enemy.
The principle of the non-transference of owner-
ship save by due condemnation of a properly
constituted prize court, certainly conflicts with
even a conditional right of destruction ; but the
view that destruction may in certain circum-
stances be resorted to does not necessarily imply
that the ownership immediately passes to the
captor. Destruction may be legitimate on the
ground of overwhelming military necessity and
self-preservation, without the property in the
thing destroyed first passing to the destroyer.
In the operations of war private property is
constantly destroyed ; it does not become vested
in the attacking belligerent simply because it
has fallen into his hands or has served as a target
for his guns, even though the owner is thereby
deprived of it.
Oppenheim PROFESSOR Oppenheim : The general rule is
that captured enemy merchantmen are not to be
destroyed. There are exceptions, but opinion and
practice in regard to them are not unanimous.^
^ L. Oppenheim, International Law, 2 vols. (London, 1912),
vol. ii. p. 242.
36
DESTRUCTION OF MERCHANTMEN
We may conclude this statement of juristic institut de
. , , . . . , . .J Droit Intcr-
opmion by referrmg to the conclusions arrived national
at by the Institut de Droit International, a body
including some of the leading jurists and
pubhcists of the present time. The ** Reglement
International des Prises Maritimes/' adopted at
Turin in September 1882, says that a captor is
permitted to burn or sink his prize in the
following cases : —
(i) When it is not possible to keep the vessel
afloat owing to her bad condition and the rough
state of the weather.
(2) When the vessel cannot keep up with the
warship and might easily be recaptured by the
enemy.
(3) When the approach of a superior enemy
force creates fear of recapture.
(4) When the captor cannot put on board an
adequate prize crew without reducing his own
beyond what is essential for his own safety.
(5) When the port to which it would be
possible to take the captured vessel is too
distant.^
^ Annuaire de V Institut de Droit International (1882-1883)^
vol. vi. p. 221.
37
426184
DESTRUCTION OF MERCHANTMEN
(6) State regulations
British regu- Great BRITAIN : The Manual of Naval Prize
^ °'^ Law of 1888 lays down that a commander who
captures a vessel, which he cannot possibly take
into port, need not release her if ** there be clear
proof that the vessel belongs to the enemy/* ^
Such an impossibility would arise, for example,
through the unseaworthy condition of the prize
or through the commander's inability to spare a
prize crew,"
French regu- FRANCE t The Marine Ordinances of 1681
^^°^ and 1693 permitted the captor to burn or sink
his prize. Valin commenting on these Ordin-
ances, points out that this exceptional course
could be resorted to where the captor found it
impossible to conduct his prize into port owing
to her bad condition, her slowness, her small
value, the approach of the enemy, or inability to
place a prize crew on board.^ The provisions in
these Ordinances were reproduced in the decree
of 2 prairial an XL (May 22, 1803) (Art. 64).
The Instructions of July 25, 1870, allowed a
^ T. E. Holland, Manual of Naval Prize Law, Art. 304 (London,
1888).
2 Ibid. Art. 303.
3 R. J. Valin, Commentaire sur I'Ordonnance de la Marine de
1681 (1766), vol. ii. pp. 281-288 ; Valin, Traite des Prises (1763),
vol. i. pp. 132, 133.
38
DESTRUCTION OF MERCHANTMEN
cruiser to destroy a pri2;e if her preservation
might endanger the captor's safety or the success
of his operations. The right was, however, to
be exercised with the greatest reserve, and only
if the commander were compelled by an over-
mastering circumstance — ** une circonstance
majeure/' ^ The Instructions issued during the
present war (January 30, 19 16) lay down
(Art. XXVIII., Sec. 153) that in general enemy
prizes are not to be destroyed ; a prize crew is
to be placed on board and the captured vessel
is to be taken into a national or into an allied
port. Exceptionally, however, the captor is
permitted to destroy his prize, if her preserva-
tion should endanger his security or the success
of his operations, and especially if it should
necessitate an undue depletion of his crew.^
Russia : The Regulations of 1787 instructed Russian
Russian commanders to destroy, if necessary, ^^^^ ^ °*^
the merchantmen captured from the enemy.
^ Instructions Complementaires, Art. 20. H. Barboux, Juris-
prudence du Conseil des Prises Pendant la Guerre de 1870-1871
(Paris, 1872), p. 155.
2 " Destruction des prises ennemies : Les prises doivent etre
amarinees, conduites dans un port national ou allie, et non pas
detruites.
" Par exception, vous etes autorise a detruire toute prise dont
la conservation corapromettrait votre securite ou le succes de
vos operations, notamment si vous ne pouvez conserver la prise
sans affaiblir votre equipage."
39
DESTRUCTION OF MERCHANTMEN
By a decree of February 5, 1854, prize money
was to be paid to warships for all enemy vessels
that were burnt, sunk, or otherwise destroyed ;
but privateers were forbidden to destroy vessels.^
The Rules of 1869, Sec* 108,^ permitted destruc-
tion in circumstances substantially similar to
those specified in the '* Reglement of the In-
stitut de Droit International." ^ The Prize
Regulations of March 27, 1895, Sec. 21, were to
this effect : "'In exceptional cases, when the
preservation of a detained vessel appears to be
impossible in consequence of her bad condition
or entire worthlessness, the danger of her re-
capture by the enemy, or the considerable
distance or blockade of the ports, or else on
account of the danger threatening the ship which
has made the capture, or the success of her opera-
tions, it is permissible for the commander, on
his own responsibility, to burn or sink the
captured vessel. .♦.''* The Special Instruc-
tions of September 20, 1900, Sec. 40, not only
enumerate the same cases but extend the latitude
allowed to commanders by adding the words
^ Bulmerincq, " Le Droit des Prises Maritimes " in Revue de
Droit Int. (1878), vol. x. p. 621.
2 Bulmerincq, Rev. de Droit Int. (1879), p. 632.
3 See supra, p. 37.
* For the full text, see C. J. B. Hurst and F. E. Bray, Russian
and Japanese Prize Cases (London, 1912), vol. i. pp. 311 seq,
40
DESTRUCTION OF MERCHANTMEN
** and other similar exceptional cases." A note
is appended stating that the captor does not
incur any responsibility when the detained vessel
is actually subject to condemnation and her
destruction is imperatively demanded by the
exceptional circumstances in which the im-
perial vessel is placed.^
Spain : The Regulations of April 24, 1898, Spanish re-
make no mention of destruction.^ ^" ^ ^°
United States : The Instructions to blockad- American re-
ing vessels and cruisers issued June 20, 1898,^"^^'°°^
provide as follows : *' If there are controlling
reasons why vessels may not be sent in for
adjudication^ as unseaworthiness, the existence
of infectious disease, or the lack of a prize crew,
they may be appraised and sold ; and if this
cannot be done they may be destroyed. The
imminent danger of recapture would justify
destruction, if there was no doubt that the vessel
was good prize." ^ This provision was embodied
in the Naval War Code, published June 27,
1900, by the Secretary of the Navy ; but the
whole code was revoked February 4, 1904.
Japan : The Prize Rules of 1894 directed Japanese re-
commanders to destroy captured vessels be- ^" ^ °^
1 British and Foreign State Papers (1900-1901), vol. 94, p. 891.
2 U.S. Diplomatic Correspondence (1898), p. 775.
3 General Orders, No. 492, Sec. 28 : U.S. Dip. Corr. (1898),
p. 782.
41
DESTRUCTION OF MERCHANTMEN
longing to the enemy if it was impracticable to
send them to a port. And Article 91 of the
Regulations of March 7, 1904^ prescribed thus :
** In the following cases, and when it is un-
avoidable, the captain of the man-of-war may
destroy a captured vessel or dispose of her
according to the exigency of the occasion. . ♦ ♦
I. When the captured vessel is in very bad
condition and cannot be navigated on account
of the heavy sea. 2* When there is apprehension
that the vessel may be recaptured by the enemy.
3. When the man-of-war cannot man the prize
without so reducing her own complement as to
endanger her safety.'' ^
(c) Judicial pronouncements
View of Great Britain : In the case of the Felicity ^^
courts Lord Stowell pronounced the destruction of an
enemy merchantman to be permissible if ** a
grave call of public service required it.'' The
military operations in which the Endymion, the
capturing vessel, was engaged did not permit
her to part with any of her crew. '* Under this
^ S. Takahashi, International Law applied to the Russo-Japanese
War (London^ 1908), p. 788 ; Hurst and Bray, op. cit. vol. ii.
p. 438.
2 (1819), 2 Dodson, 381, at pp. 385, 386.
42
DESTRUCTION OF MERCHANTMEN
collision of duties nothing was left but to destroy
her, for they could not, consistently with their
general duty to their own country, or indeed its
express injunctions, permit enemy's property to
sail away unmolested* If impossible to bring
in, their next duty is to destroy enemy's
property/'
France : In the case of the Ludwig and the view of
Vorwdrts, German merchantmen destroyed bycoSS^
a French warship, the Conseil des Prises, sitting
at Bordeaux, February 27, 1871, held that the
vessels were of German nationality, that they
were good and valid prizes, and had been de-
stroyed through force majeure in order to assure
the safety of the captor's operations ; that acting
as he did the captor had exercised a right, rigor-
ous no doubt, but permitted by the laws of war
and prescribed by the instructions of his state*
On appeal the decision of the Court was upheld
by a Commission Provisoire, sitting instead of
the Conseil d'Etat, and the action of the captor
was declared justifiable because the existence of
a large number of prisoners on board rendered
it impossible to withdraw a part of the crew for
taking the vessels to a French port.^
^ C. Calvo, Le Droit International (Paris, 1887-1896), vol. v.
Sec. 3033, p. 280.
43
DESTRUCTION OF MERCHANTMEN
(d) Practice in wars
The war of In the War of 1812-1814, the United States
_Q__ tQtvI ^_
naval forces frequently destroyed British mer-
chantmen. The American instructions were not
issued in a general form, but were given from
time to time to individual officers. Thus one
commander was ordered, June 5, 1813, to attack
the enemy^s commerce and destroy captured
vessels ** in all cases/' unless the ** value and
qualities '* should '' render it morally certain
that they may reach a safe and not distant port/'
Other commanders were directed to proceed in
the same manner, and to save only valuable and
compact articles that might easily be transhipped/
In this war seventy-four merchantmen were
thus destroyed.
Crimean War In the Crimean War two Russian coasters
were sunk by the French, on the ground that
they were of too small value to have a prize crew
placed on them/
American In the American Civil War, Semmes, the
Civil War , „
^ Cf. the Instructions of December 8 and 22, 1813, January 6,
1814, February 26, 1814, March 3, 1814, November 30, 1814 :
American State Papers — Naval Affairs, I. 373-376 ; J. B.
Moore, Digest of International Law (Washington, 1906), vol. vii.
p. 516.
2 Report of Admiral Hamelin to the Minister of Marine,
May 2, 1854 : Moniteur, May 21, 1854 ; A. de Pistoye and C.
Duverdy, Traitd des Prises Maritimes (Paris, 1855), vol. i. p. 272.
44
DESTRUCTION OF MERCHANTMEN
commander of the Confederate States cruiser
Alabama^ destroyed a large number of enemy
prizes,^
In the Franco-German War the French war- Franco-Gcr-
ship Desaix sank, October 14, 1870, the Charlotte; ^^°' ^^
and on October 21 set fire to the Ludwig and the
Vorwdrts. The decision of the French Prize
Court has already been referred to»*
In the Spanish- American War, 1898, three Spanish-
Spanish merchantmen were destroyed by 2in^^^^'^^
American cruiser ; but here the ground alleged
was that they were being used at the time as
transports, so that they were destroyed not as
merchantmen but as public enemy vessels*
In the Russo-Japanese War Russian cruisers russo-
destroyed twenty-one captured Japanese mer-^^^^^*^^"
chantmen*'
(e) PassengerSf crews^ and ship*s papers — Destruc-
tion without warning
We have seen that the destruction of enemy
prizes has frequently been resorted to in wars,
and that the practice is defended by jurists and
judicial tribunals and sanctioned by the ordi-
^ See infra, p. 49.
2 See supra, p. 43.
3 Takahashi, op. cit. pp. 284-310.
45
DESTRUCTION OF MERCHANTMEN
nances, regulations, and instructions of states
when, owing to various circumstances of force
majeure^ it should be found impossible or
dangerously difficult to conduct the captured
vessels into port for adjudication. Whatever
difference of opinion there may be with regard
to these circumstances, there is and there has
been always and everywhere complete unanimity
as to one obligation at least that is imposed on
Safety of captors — namely, that if they find it imperatively
^S CTew necessary to destroy their prizes they must make
due provision for the safety of passengers and
crew on board and for the preservation of the
ship's papers. This is clearly and indubitably
an established rule of the law and usage of
nations. It is explicitly enforced in the naval
regulations of maritime states, and until the
present war it has invariably been respected in
actual practice. A few examples of such regula-
tions and practice may be briefly noted.
British rule Great BRITAIN : If the destruction of a
captured vessel becomes unavoidably necessary,
the captor must first remove the crew and
passengers, if any, together with the ship's,
papers and, if possible, the cargo.^
French rule FRANCE : The Marine Ordinances of 1681 and
1693, the decree of 2 prairial an XL, and the
^ Manual of Naval Prize Law, Art. 304.
46
DESTRUCTION OF MERCHANTMEN
Supplementary Instructions of 1870 require the
removal of the '' prisoners ** on board and the
preservation of the papers and other things
necessary for the rendering of a judgment by the
prize court.^ Similarly the French Instructions
of January 30, 19 16 (Sec. 154) require the com-
mander^ before he proceeds to destruction, to
place in safety the persons found on board, as
well as the papers and documents useful for
the purpose of adjudication,^
Italy : The Naval Prize Regulations, ap- Italian rule
proved by a decree of July 15, 19 15, say that if
the observance of the requirements as to con-
ducting a prize into port may endanger the safety
of the captor's ship or interfere with the success
of the operations of war in which he is engaged,
the prize may be destroyed after providing for
the safety of the persons on board and the ship's
papers, manifests, etc., necessary for determining
the legitimacy of the capture.^
Russia : The Prize Regulations of 1895, Russian rule
1 Valin, Traite des Prises (1763), I. p. 133 ; Commentaire sur
VOrdonnance de 1681 (1766), II. pp. 281-288; H. Barboux,
Jurisp. du Conseil des Prises Pendant la Guerre de 1870-1871,
p. 155.
2 " Avant la destruction, vous mettrez en surete les personnes
quelles qu'elles soient qui se trouvent a bord, ainsi que tous les
papiers et documents utiles pour le jugement de la prise."
^American Journal of International Law, Supplement, April
1916, p. 120.
47
DESTRUCTION OF MERCHANTMEN
Sec. 21, and the Special Instructions of igoo,
Sec. 40/ lay down that in any extraordinary case
of destruction, the crew and as much as possible
of the cargo must previously be transhipped, as
well as all documents and objects essential for
throwing light on the case at the judicial in-
vestigation.
German rule GERMANY : The Naval Pri2;e Regulations of
19 14 (Art. 116) provided that the captor must,
before destroying his prize, ensure the safety of
the persons on board and, as far as possible,
their effects, together with the ship's papers, etc.^
American UNITED STATES : The Instructions to blockad-
'^"^ing vessels and cruisers, June 20, 1898, require
all the papers and other evidence to be sent to
the prize court in order that a decree may be
duly entered.^
Japanese rule Japan : The Prize Regulations of 1894, Art. 22,
and those of 1904, Art. 91, provide for the tran-
shipment of crew, ship's papers, and, if possible,
cargo.*
Juristic So far as juristic opinion is concerned it will
^""°° suffice to refer to the conclusion formulated by
the Institut de Droit International, which is in
^ British and Foreign State Papers (1900-1901), vol. 94, p. 891,
2 Huberich and King, The Prize Code of the German Empire
(1915), p. 68.
3 Moore, Digest, vol. wii. p. 518.
* Takahashi, p. 788 ; Hurst and Bray, vol. ii. p. 426.
48
DESTRUCTION OF MERCHANTMEN
effect the same as the rule contained in the above
state regulations.
The practice of wars has conformed to this American
rule. During the American Revolution^ Paul
Jones removed the persons on board before
destroying a captured vessel ; and, when he
could do so, he released his pri^e.^ Similarly in
the war of 1812 this rule was observed. In thewarof 1813
case of the Felicity — to give but one example —
'* the officers and crew together with their
clothes and other property had been removed
on board the Endymion/* and the Felicity was
destroyed.- In the American Civil War, Captain American
Semmes, the notorious commander of the Ala- '^* "
bamaf did not hesitate to destroy his prizes, but
invariably removed first the persons on board.
When it was found impossible to do so, he re-
leased the ship. Thus he released the Ariel^ a
valuable prize, '* and sent her and her large
number of passengers on their way rejoicing,**
because he could not find any accommodation for
them.=^ Before destroying the HatteraSt which
was, moreover, a warship, *' every living being
in it was safely conveyed to the Alabama.** *
^ Allen, Naval History of the American Revolution, vol. i.
pp. 121, 124.
2 2 Dods., 383, at pp. 391, 392.
3 R. Semmes, Service Afloat during the War between the States
(Baltimore, 1887), p. 535. * Ibid.
49 I>
DESTRUCTION OF MERCHANTMEN
** We were making war/' he observed, '* upon
the enemy's commerce, not upon his unarmed
seamen. It gave me as much pleasure to treat
these with humanity as it did to destroy his
ships/' ^ Mr» J, A. Bolles, the Solicitor to the
United States Navy during this war, admits the
truth of this statement. He examined all the
charges of cruelty brought against Semmes, and
in no case did he find the least evidence that the
commander had inflicted any unavoidable hard-
ships on those he captured,- Again, in the
Russo-Japanese War the crews of captured
vessels were removed before destruction was
effected,^ And in the present war British com-
manders scrupulously observed the rule ; and
on several occasions German cruisers, e.g, the
Emden, the Karlsruhe, the Eitel Friedrich, did the
same,
Hague Con- It may be added that in the eleventh Hague
Convention relative to certain restrictions on the
exercise of the right of capture in maritime war,
it is expressly laid down that the enemy crews
* R. Serames^ Service Afloat during the War between the States
(Baltimore, 1887), p. 131.
2 See the article by J. A. BoUes in the Atlantic Monthly (1872),
vol. 30, p. 150 : " Why Semmes of the Alabama was not tried."
Cf. Marvin, History of the American Merchant Marine, p. 327.
These are referred to by J. W. Garner in American Journal of
International Law (191 5), p. 620.
2 Takahashi, op. cit. pp. 284-310.
50
DESTRUCTION OF MERCHANTMEN
of captured enemy merchantmen are not even
to be made prisoners of war, if they undertake
not to engage, while hostilities last, in any service
connected with the operations of war»^
It is clear, then, that doctrine, practice, and Position of
international conventions unanimously recognise anS""*"*^^*"
that the claim to weaken the adversary by attack-
ing his financial and commercial resources — to
whatever extent it may be justified — does not
and cannot carry with it the right to take the
lives of non-combatants. That every effort must
be made to save the persons and papers on board
before proceeding in circumstances of excep-
tional urgency to destroy a pri^e, and that the
pri^e should be released if such safety cannot be
ensured, is a rule of maritime warfare against
which no dissentient voice has ever been raised.
It follows inevitably that enemy vessels may not
be sunk or otherwise destroyed without warning,^ Warning
and that, though warning be given, such means "^'^^^^^'
of attack should not be resorted to as would
render it impossible for the assailant to observe
^ Hague Convention (1907), No. XL Art. 6.
2 With regard to attacking without warning, Lord Stowell
observed, in a case in wlaich he referred to the illegal practice of
firing under false colours, that " it may be attended by very un-
just consequences ; it may occasion the loss of the lives of persons
who, if they were apprized of the real character of the cruiser,
might, instead of resisting, implore protection." (The Peacock
(1802), 4 C. Rob., 185, at p. 187.)
51
DESTRUCTION OF MERCHANTMEN
Use of sub- the rule. It necessarily follows, again, that a sub-
againsTmw- marine attack on an enemy merchantman ^ is
chantmen unlawful, if proper provision be not first made
for the safety of crew, passengers, and ship's
papers. Accordingly the contention of the
British Government in the Note of March i,
191 5, to the United States Government is well
British con- founded in estabhshed law and usage : ** A
tention Q^j-j^^jj submarine . . . fulfils none of these
obligations [viz* visit, verification of the status
and character of vessel and cargo, arrangements
for the security of crew, etc.] ; she enjoys no
local command of the waters in which she
operates ; she does not take her captures within
the jurisdiction of a prize court ; she carries no
prize crew which she can put on board a prize ;
she uses no effective means of discriminating
between a neutral and an enemy vessel ; she
does not receive on board for safety the crew
and passengers of the vessel she sinks ; therefore
her methods of warfare are entirely outside the
scope of any of the international instruments
regulating operations against commerce in time
of war/'
American Similarly, the President of the United States
^'^"in his statement to Congress, April 19, 19 16,
^ See A. Pearce Higgins, Defensively Armed Merchantmen and
Submarine Warfare (London, 191 7).
52
DESTRUCTION OF MERCHANTMEN
relative to the controversy with the German
Government, affirmed emphatically that the use
of submarines against enemy merchantmen is
'* incompatible with the principles of humanity,
the long-established and incontrovertible rights
of neutrals, and the sacred immunities of non-
combatants/*
The excuse usually offered by the Germans Submarine
that submarines dare not approach the object of Merchantmen
their attack for fear the enemy merchantman is ""lawful
armed, and that they have no facilities whatever
for carrying out the admitted requirements as to
the safety of crew and passengers, is entirely
invalid » A combatant must refrain from doing
such acts as entail indefeasible obligations if
he cannot properly and adequately fulfil those
obligations. The plea of military necessity cannot
justify a line of conduct which involves proceed-
ings and consequences forbidden by existing
law. Indeed this very law has been deliberately
established in order to obviate arbitrary and
factitious pleas of necessity.^ The use of sub-
marines against commerce must necessarily re- New weapons
main illegal until international law has made natfonariaw
express provision for their employment. The
* For an examination of the doctrine of military necessity in
relation to international law, see C. Phillipson, International Law
and the Great War (London, 191 5)/ PP- 27 seq.
53
DESTRUCTION OF MERCHANTMEN
introduction of new engines of destruction must
conform to the law as it is ; it is contrary to all
reason and all conceptions of jurisprudence for
any nation to claim that the existing law becomes
obsolete on the invention of new appliances of
warfare. No single nation, as an American court
said, may change the law of the sea, which is of
universal obligation*^
General con- It is not our object here to enumerate the
"SSbmarinc instances of the flagrant violations of law com-
attacks jjiitted in the present war ; the whole world is
fully aware of the numerous cases of destruction
of merchantmen by German submarines without
notice and without making provision for the
safety of passengers and crew* States have
officially and publicly condemned this illegal
procedure. The sinking of the Lusitania, for
example, brought forth a strong protest. May 13,
19 1 5, from the United States Government, which
described the act as being '' absolutely contrary
to the rules, practice, and spirit of modern war-
fare ... a violation of many sacred principles
of justice and humanity.**
(/) Neutral goods on board enemy merchantmen
Earlier Down to the middle of the nineteenth century
ation of
practice
variation of ^j^^^.^ ^^^ ^^ Universally accepted rule of inter-
1 The Scotia (1871), 14 Wallace, 170.
54
DESTRUCTION OF MERCHANTMEN
national law regulating the legal position of
neutral goods under enemy flag and enemy goods
under neutral flag. Practice varied at different
times with different states, and also at different
times in the case of any particular state. There
is no need here to set forth the historical de-
velopment of doctrine and the varying applica-
tions of policy and expediency. It is sufficient
to say that the Declaration of Paris, 1856, Declaration
adopted the compromise arrived at by Great °^^^*^
Britain and France in the case of the Crimean
War — a compromise embodying the principle
** free ships free goods " (without the supposed
corollary ** enemy ships enemy goods **). The
Declaration of Paris, which is now part and
parcel of international law, lays down the follow-
ing rules of exemption from capture at sea : —
** The neutral flag covers enemy *s goods, with
the exception of contraband of war.
** Neutral goods, with the exception of contra-
band of war, are not subject to capture under
enemy's flag.**
Before the Declaration of Paris, the British British prac-
practice followed the principle of exempting""
from condemnation neutral goods, other than
contraband, found on an enemy vessel ; and if
in such a case the captor forwarded the goods to
their destination, he was entitled to freight, but
55
DESTRUCTION OF MERCHANTMEN
remained answerable to the owners for loss or
damage due to his misconduct/ The captor's
right to freight in such circumstances and his
responsibility for loss are not affected, of course,
by the Declaration of Paris.
View of During the Franco-German War, the Declara-
^^in'^Franro- tion of Paris was appealed to by the neutral
German War owners of cargoes which were destroyed, along
with the German merchantmen Ludwig and
VorwdrtSf by the French cruiser Desaix (Octo-
ber 21, 1870). No offence of trading in contra-
band or of breach of blockade was alleged. The
Conseil des Prises, however, decided — and its
decision was on appeal affirmed by the Commis-
sion Provisoire (March 16, 1872) — that as the
destruction of the vessels was a legitimate act of
war, the neutral cargo-owners were not entitled
to compensation. The ground of the decision
was that though the Declaration of Paris pro-
hibited the confiscation of such goods, it did not
imply that compensation was payable for loss or
injury caused by a lawful capture of the vessel
or by legitimate acts of war accompanying or
following the capture. It seems, therefore, that,
in the view of the court, a neutral who deliber-
ately places his goods in an enemy vessel identifies
himself pro tanto with the enemy, and therefore
1 The Fortuna (1802), 4 C. Rob., 278.
56
DESTRUCTION OF MERCHANTMEN
renders himself liable to the consequences of
warlike operations.
Similarly, during the present war the German view of
Prize Court held in the cases of The Glitra coun*"
(July 30, 191 5) and The Indian Prince (April 14,
1916)/ that if destruction of the prize be per-
missible on the ground of military necessity,
the neutral owner of cargo destroyed along with
the vessel is not entitled to indemnity under
the Declaration of Paris.
The construction adopted by the French its question-
Court appears to involve an encroachment on^ ^^ *^
the Declaration of Paris, and has been questioned
by some writers. If the destruction of an enemy
vessel be imperatively demanded by the necessity
of military operations, and it is impossible to
remove the neutral cargo on board, the destruc-
tion of the latter is justifiable ; for a belligerent
cannot be expected to release an enemy prize
simply because neutral goods are found on
board. But, on the other hand, a neutral is
not forbidden by international law to embark
his goods in the merchantmen of any of the
belligerents ; it is a perfectly legitimate pro-
ceeding on his part to do so. Therefore, unless
he has been found guilty by a prize court of
contraband trading, blockade running, or un-
^ AmeT. Journ. of InU Law, Oct. 1916, pp. 921, 930.
57
DESTRUCTION OF MERCHANTMEN
neutral service, he is entitled to full compensa-
tion for the destruction of his innocent property.*
The decision, then, of the French Court in 1870,
and that of the German Court in the present
war, are not consonant with the existing prin-
ciples of international law ; for to proceed on
that view is to make a dead letter of the Declara-
tion of Paris. But this declaration is recognised,
even by states that were not signatory thereto,
as a constituent element of the law of nations ;
it cannot be distorted or repudiated to meet the
convenience of this or that state.
Neutral Is the position of neutral goods on board
^ feSvefy defensively armed merchantmen the same^*
^hznSnen^^^ have Seen that merchantmen are entitled
to escape from, and — if they can and care to
risk it — resist capture by, enemy warships. It
follows, therefore, that if the resistance is over-
come and the vessel captured, neutral goods on
board will not be legally affected by the fact
that resistance had been offered. ** No duty,**
observed Lord Stowell, ** is violated by such an
act on his [the enemy master's] part — lupum
aurihus teneOy and if he can withdraw himself
^ Under the British rules compensation is in general payable
for innocent neutral cargo destroyed along with an enemy prize :
Cf. the British Memorandum, Parliamentary Papers (igog).
Miscellaneous, No. 4, p. g.
58
DESTRUCTION OF MERCHANTMEN
he has a right so to do/* ^ Now as the arming
of merchantmen for purely defensive purposes
is legitimate, it follows, again, that neutral goods
carried by them are, in general, similarly im-
mune from seizure and destruction, A neutral
is not debarred from placing his goods on mer-
chant ships that provide themselves with means
of self-defence of admitted legality but more
effective than those possessed by an unarmed
merchantman. If he places his property in a
vessel that arms herself expressly with a view
of engaging in offensive operations, then he has
no right to indemnity for the loss of or injury
to his property occasioned by a conflict of the
vessel with an enemy cruiser. But it is per-
missible for him to embark his merchandise in
a vessel possessing armament that is to be used
only in self-defence in the event of an attack or
attempted capture. Accordingly he is entitled
to full compensation for innocent property
either seized or destroyed by an assailant.
In a case, however, that was decided in the The Fanny
British Pri2;e Court,- it was held that goods
shipped on board an enemy armed vessel were
confiscable, on the ground that deliberately to
embark neutral cargo on a ship of this kind is
* The Catherina Elizabeth (1804), 5 C. Rob., 232, at p. 233.
2 The Fanny (1814), i Dods., 443.
59
DESTRUCTION OF MERCHANTMEN
evidence of hostile association and intention to
resist visit and search. But this view was not
accepted by the United States courts/ which
decided that armament or resistance of an enemy
merchantman does not deprive neutral goods
on board of their neutral character (and so of
their inviolability), so long as the neutral him-
self does not directly participate in the resistance.
If the neutral plays no part in the arming of the
vessel or in the opposition offered to visit, and
has no control over the vessel or her navigation,,
it is difficult to conceive how on any rational
principle he is to be penalised.
The Nereide Chief Justice Marshall, in The Nereide^ deliv-
ering the judgment of the Supreme Court, ob-
served that to evade visit and search is lawful on
the part of the neutral owner if lawful means are
used ; he may not, indeed, resort to fraud or
force ; but he cannot be held responsible or
punishable for the legitimate resistance offered
by the captain and crew of the merchantman,
with whose acts he has no concern and over
which he has no control. It is submitted that
this is the better opinion, and it follows from the
principles already set forth above.
^ The Nereide (1815), 9 Cranch, 388, Story, J., dissenting;
but this view was confirmed in The Atalanta (1818), 3 Wheat.,
409.
60
DESTRUCTION OF MERCHANTMEN
It is important to note, however, in reference But the cases
to the divergence of opinion between the English ^^
and the American Courts, that Lord StowelFs
decision was based on the fact that the Fanny
was an armed merchantman furnished with
letters of marque, of which the neutral cargo-
owner had knowledge; so that she was in the
legal position of an ordinary warship. On the
other hand, the Nereide appears to have been
an uncommissioned armed merchantman that
offered resistance to capture, after being under
enemy convoy.
(g) Enemy vessels exempt from capture or
destruction
Whatever liabilities enemy merchantmen in
general incur at the hands of belligerents, there
are certain classes of vessels that are ordinarily
immune not only from destruction but also from
attack. As the law relating to them is clearly
established and in nearly every case universally
recognised, there is no need to enter into ela-
borate exposition or argument ; the briefest
statement of the law and usage will suffice for
our purpose. The protected vessels in question
are the following : —
(i) Merchantmen at the outbreak of the war. Merchant-
As to the merchantmen of a belligerent that are break of war
6i
DESTRUCTION OF MERCHANTMEN
in the enemy's ports at the outbreak of war, it
has been the regular practice from about the
middle of the nineteenth century (the Crimean
War) to allow them a certain time in which to
load and depart. Those on their way to and
from a belligerent's port have similarly been
permitted to discharge their cargoes and then
depart unmolested to any port not blockaded/
The sixth Convention of the Hague (1907) now
provides as follows : —
Hague I. When a merchant ship- belonging to one
^^hereon of the belligerent powers is at the commencement
of hostilities in an enemy port,^ it is desirable
that she should be allowed to depart freely, either
immediately or after a reasonable number of days
of grace^ and to proceed, after being furnished
with a pass, direct to her port of destination or
any other port indicated to her. The same rule
1 Cf. The Buena Ventura (1899), 175 U.S., 384 ; The Panama
(1899), 175 U.S., 535 ; The Pedro (1899), 175 U.S., 354 ; The
Nadajda (1905), Takahashi, 604. See also the Report of the
American Delegation to the Hague Conference of 1907 : J. B.
Scott, The Hague Peace Conferences of 1899 and 1907 (Baltimore,
1909), vol. ii. p. 219 ; A. Pearce Higgins, Hague Peace Conferences,
pp. 295-307-
2 This does not include a yacht : The Germania (191 5), i Prize
Cases, 573 ; it applies only to a vessel entering a port in pur-
suance of a commercial adventure : The Prinz Adalbert (191 6),
2 Prize Cases, 70.
3 As to the meaning of "port," see The Belgia (1915), i Prize
Cases, 303 ; affirmed on appeal, 2 Prize Cases, 32.
62
DESTRUCTION OF MERCHANTMEN
applies in the case of a ship which has left her
last port of departure before the commencement
of the war and has entered a port belonging
to the enemy while still ignorant that hostilities
had broken out»
2» A merchant ship which^ owing to circum-
stances beyond her control, may have been unable
to leave the enemy port ^ within the period con-
templated in the preceding article, or which was
not allowed to leave, may be confiscated. The
belligerent may merely detain her under an obli-
gation to restore her after the war without pay-
ment of compensation, or he may requisition her
on condition of paying compensation.
3. Enemy merchant ships which left their
last port of departure before the commencement
of the war, and are encountered on the high seas
while still ignorant of the outbreak of hostilities
may not be confiscated.- They are merely
liable to be detained under an obligation to
restore them after the war without payment of
compensation ; or to be requisitioned, or even
destroyed, on payment of compensation, but
in such case provision must be made for the
safety of the persons on board as well as the
^ Cf. The Mowe (1914), i Prize Cases, 60.
2 If the vessel is fitted with wireless installation and is within
a reasonable distance of communications, her knowledge is pre-
sumed ; The Gutenfels (No. 2) (1915), 2 Prize Cases, 136.
63
DESTRUCTION OF MERCHANTMEN
preservation of the ship's papers. After touching
at a port in their own country or at a neutral port,
such ships are subject to the laws and customs of
naval war/
4* Enemy cargo on board the vessels referred
to in Articles i and 2 is likewise liable to be
detained and restored after the war without
payment of compensation, or to be requisitioned
on payment of compensation, with or without the
ship. The same rule applies in the case of cargo
on board the vessels referred to in Article 3.
5. The present Convention does not refer to
merchant ships which show by their build that
they are intended for conversion into war ships.
6» The provisions of the present Convention
do not apply except between contracting powers,
and then only if all the belligerents are parties
thereto.-
One or two important points are to be carefully
noted in regard to the protection of vessels of this
kind. In the first place, the convention does not
make the exemption obligatory, but only optional;
so that the granting of the immunity would
naturally be conditioned on the adoption of
^ This article does not apply to Germany, since she excluded
it on ratifying the Convention.
2 Hague Convention Relative to the Status of Enemy Merchant
Ships at the Outbreak of Hostilities (igoj), No. VI. Arts. i-6.
64
DESTRUCTION OF MERCHANTMEN
reciprocal practice,^ Secondly, a special restric-
tion is imposed by Article 6. Thirdly, failing
the application of the convention it is doubtful
whether the exemption conceded in the various
wars beginning with the Crimean War can be
regarded as sufficiently long established to have
materialised itself into an obligatory usage.
(2) Licensed vessels, A license to trade protects Licensed
vessels if they duly comply with the terms thereof .^ ''^^^^
(3) Coast fisheries, including the crews, boats. Coast
equipment, and cargoes of fresh fish»^ The coast
need not be that of their own country. The
exemption is forfeited through violation of
blockade, or engagement or intention to engage in
any kind of warlike service, including scouting,**
signalling, carrying arms, etc. The exemption is
not extended to vessels engaged in the deep-sea
fishery,^ or to those fitted for the curing of fish.
^ Cf. The Chile (1914), i Prize Cases, i ; The Perkeo (1914),
ibid., 136 ; The Erymanthos (1914), ibid., 339 ; The Bellas (1914),
ibid., 95 ; The Barenfels (1915), ibid., 122 ; The Marquis Bac-
quehem (1915), ibid., 130 ; 2 Prize Cases, 58.
^ Usparicha v. Noble (181 1), 13 East, 332; Flindt v. Scott
(1814), 5 Taunt., 674; The Acteon (1815), 2 Dods., 48; The
Felicity (18 19), 2 Dods., 381.
3 The Paquete Habana and the Lola (1899), 175 U.S. 677.
* Cf. The Kotik (1905), Takahashi, p. 593 ; Hurst and Bray,
vol. ii. p. 95 J a fishing-vessel condemned by the Japanese Prize
Court for having been employed in police duty.
6 The Lesnik (1904), Takahashi, 595 ; Hurst and Bray, vol. iu
p. 92 ; The Berlin (1914), i Prize Cases, 29.
65 E
DESTRUCTION OF MERCHANTMEN
Under the earlier usage, the immunity was
often expressly accorded by means of edicts,
ordinances, and treaties,^ It was sometimes
withdrawn in exceptional circumstances of mili-
tary necessity* Thus in the Crimean War the
British interfered with the coast fisheries in the
Sea of Azof owing to the exigency of military
operations." Similarly, the French Instructions in
the same war ^ and in that of 1870 prohibited the
molestation of coast fisheries, unless demanded
by naval or warlike operations. The traditional
rule was, indeed, regarded by some states as
only a relaxation of strict right in the interests
of humanity, or as a rule of comity.^ Now,
however, the eleventh Hague Convention (1907)
confirms the old usage, and grants immunity not
only to vessels engaged in coastal fishing but
also to small boats engaged in local trade " (ex-
cluding coasting steamers), so long as they do
not participate in the hostilities.^
^ As to the " treves pecheresses " in the case of France, see
J. M. Pardessus, Collection des Lois Maritimes (Paris, 1837),
vol. iv. p. 319.
2 See United Service Journal (1855), part in. pp. 108-112.
3 T. Ortolan, Regies Internationales et Diplomatie de la Mer
(Paris, 1864), vol. ii. pp. 448 seq.
* Lord Stowell's view in The Young Jacob and Johanna (1798),
I C. Rob., 20.
5 Cf. The Maria (1915), i Prize Cases, 259'
« Hague Convention (1907), No. XL Art. 3.
66
DESTRUCTION OF MERCHANTMEN
(4) Vessels, either public or private, despatched Scientific,
on scientific, religious, philanthropic,^ or humani- S^*"^
tarian expeditions have long enjoyed immunity,
on condition of their abstaining from warlike
services, and from commerce other than that
necessary for the purpose of the expedition. The
Hague Convention confirms this protection*^
(5) Cartel ships licensed to engage in the Cartel ships
exchange of prisoners of war or on other par-
ticular services, e.g. the carriage of official
communications, as specially agreed upon by
the belligerents, are, together with their per-
mitted cargoes, exempt from hostile attack.
They must not be employed for purposes of
trade, for carrying despatches or arms and
munitions. If they exceed their permission or
the terms of their license, their immunity is lost.'
(6) Hospital ships are inviolable, so long asHospitai
they are exclusively engaged in the work of^ ^
relieving the sick and wounded.*
* Cf. The Paklat (1915), i Prize Cases, 515.
2 Hague Convention (1907), No. XL Art. 4.
^La Rosine (1800), 2 C. Rob., 372 ; The Daifjie (1800), 3 C.
Rob., 139 ; The Venus (1803), 4 C. Rob., 355 ; The La Gloire
(1804), 5 C. Rob., 192 ; The Carolina (1807), 6 C. Rob., 336.
* Hague Convention (1907), No. X. : " Adaptation of the
Principles of the Geneva Convention to Maritime War." Cf. The
Aryol (or Orel) (1905), decided by the Japanese Prize Court ;
Hurst and Bray, vol. ii. p. 354 ; The Ophelia (191 5), i Prize
Cases, 210 ; (1916), 2 Prize Cases, 150.
67
DESTRUCTION OF MERCHANTMEN
Vessels in (7) Vesscls in distress. Practice as to exemp-
istress ^^^^ j^^^ varied among different States and at
different times. Under French Ordinances and
practice, the capture of shipwrecked enemy
vessels is authorised.^ In strict law such capture
is in accordance with the general right to capture
private enemy property at sea. But through
considerations of humanity, the rigour of the
rule has not infrequently been relaxed.- Juristic
doctrine is decidedly in favour of immunity to
merchant ships compelled through an accident
of force majeure to take shelter in an enemy
port.^ Perhaps, however, the standard re-
commended is too high. At the second Hague
Conference no conclusion was arrived at on the
point.
Mail-boats (8) Mail-boats and mail-bags. There is no
rule of international law exempting mail-boats
from hostile attack. Whatever protection is
enjoyed by them is due to special treaties between
the states concerned. But enemy mail-bags —
^ Ordinance of 168 1, Art. 26 ; Rules of 1778, Art. 14 ; Decree
of 6 germinal an VIII. (March 26, 1800) Arts. 2, 8^ 19 ; Decree
of 1854. Cf. Despagnet, Sec. 655.
2 Cf. the case of the Elizabeth (1746), which was, indeed, a
British warship ; Pistoye and Duverdy, I. p. 115.
3 This was the view of the Institut de Droit International :
Annuaire (1898), vol. xvii. p. 284.
68
DESTRUCTION OF MERCHANTMEN
excluding parcels sent by parcels post ^ — are
under the Hague Convention exempt, with the
exception of correspondence proceeding to or
from a blockaded port,^
^ The Simla (1915), i Prize Cases, 281.
"Hague Convention (1907), No. XL Art, i.
69
PART 11. NEUTRAL MERCHANTMEN
A. Under the Customary Law
All that has been stated above in reference to
the obligations of belligerents towards enemy
merchantmen applies even more emphatically
in the case of neutral merchantmen ; so that
the authorities already cited and the arguments
advanced need not be repeated here in extenso,
but should be regarded as supplementary to the
exposition, arguments, and authorities in regard
to neutral merchantmen.
I. Visit and adjudication
Enemy's The rule of international law defining a belli-
"^ n*emrl° gcrcnt's right in relation to neutral vessels is
vessels correctly stated by the United States Govern-
ment in the Note to Germany (February lo,
191 5) after the latter's decree (February 4, 1915)
unduly extending the war 2one and hence en-
larging the liabihty of neutral shipping :''... The
sole right of a belligerent in dealing with neutral
vessels on the high seas is limited to visit and
search, unless a blockade is proclaimed and effec-
tively maintained. ... To declare or exercise a
right to attack and destroy any vessel entering a
70
DESTRUCTION OF MERCHANTMEN
prescribed area of the high seas without first
certainly determining its belligerent nationality
and the contraband character of its cargo would
be an act so unprecedented in naval warfare
that this Government is reluctant to believe that
the Imperial Government of Germany in this
case contemplates it as possible. The suspicion
that enemy ships are using neutral flags im-
properly can create no just presumption that all
ships traversing a prescribed area are subject
to the same suspicion. It is to determine exactly
such questions that this Government understands
the right of visit and search to have been recog-
nised." '
It has long been a definitely established rule Adjudication
that captured neutral vessels are to be taken into ^^^*°
port for adjudication. The plea of necessity,
military or other, will not furnish valid ground
for repudiating or dispensing with this obligation
and for destroying the vessel. If it is found
impossible for any reason to take her in, including
the various circumstances in which it is claimed
that an enemy vessel may be sunk (as considered
above), it is the duty of the captor to release her.
The captor is not a judge ; he may not arrogate
to himself the rights and functions of a judicial
^ American Journal of International Law, Supplement, vol. ix.
(July 1915), pp. 86, 87.
71
DESTRUCTION OF MERCHANTMEN
tribunal. The property in a suspected or even
offending neutral merchantman is not trans-
ferred to the captor by the mere fact of seizure ;
it is legally transferred only by a valid condemna-
tion pronounced by a properly constituted
prize court. It is only after the ownership has
thus passed that the captor state may deal with
its newly acquired property as it thinks fit.
Before the ownership has vested in it, it has no
right to deal with a prize as though she were its
own, and it has no right to proceed, by itself
or its agents, to destroy her.
The Felicity The necessity for adjudication has been fre-
quently emphasised in judicial pronouncements.
Lord Stowell observed ^ : ** Regularly a captor
is bound by the law of his own country, con-
forming to the general law of nations, to bring
in for adjudication.'' Dr. Lushington held ^
that a neutral vessel '* has the right to be brought
[The Leucade to adjudication, according to the regular course
of proceeding in the prize court ; and it is the
very first duty of the captor to bring it in if it be
practicable. From the performance of this duty
the captor can be exonerated only by showing
that he was a bona fide possessor, and that it was
impossible for him to discharge it. No excuse
1 The Felicity (1819), 2 Dods., 381, at p. 385.
2 The Leucade (1855), Spinks, 217, at pp. 221, 222.
72
DESTRUCTION OF MERCHANTMEN
for him as to inconvenience or difficulty can be
admitted as between captors and claimants. If
the ship be lost, that fact alone is no answer;
the captor must show a valid cause for the
detention as well as the loss. If the ship be
destroyed for reasons of policy alone, as to
maintain a blockade or otherwise, the claimant is
entitled to costs and damages. The general rule,
therefore, is that if a ship under neutral colours
be not brought to a competent court for adjudi-
cation, the claimants are, as against the captor,
entitled to costs and damages. Indeed, if the
captor doubt his power to bring a neutral vessel
to adjudication, it is his duty, under ordinary
circumstances, to release her.''
When, in naval warfare, the interests of belli- Belligerent
gerents come into conflict with those of neutrals, interests
it does not follow, under the existing law of
nations, that the former predominate over the
latter. Neutrals have the right to sail the high
seas ; they are entitled to use this international
highway unmolested, as long as they observe
the clearly defined obligations of neutrality.
Belligerents' convenience may not override neutral
rights. Indeed, it may be argued in accordance
with the fundamental principles of jurisprudence
applicable to the society of states that, as war
is from the point of view of international law
73
DESTRUCTION OF MERCHANTMEN
an abnormal condition, the right of neutrals to
use the high seas and carry on their legitimate
commerce even prevails over the claims of belli-
gerents to make use of this or that portion of
the open sea for the purposes of their conflict.
So long as neutral vessels do not encroach within
the limited theatre of warlike operations, so long
as they commit no violation of the rules of
neutrality, for example, as to blockade running,
contraband trading, or unneutral service, they
are entitled to be left alone, subject, of course,
to visit and search in case of suspicion. The
observance of their obligations necessarily implies
the enjoyment of relative rights on their part,
and a corresponding imposition of indefeasible
obligations on belligerents.
2. When attack is excusable or justifiable
Cases of Are there any circumstances in which an
^*^ttack attack on neutral vessels may be considered
excusable or justifiable ?' An attack is excusable
if it is the result of error ; that is to say, the
act is not an offence against law. But it
will be for the assailant to prove strictly and
beyond doubt that he really made a mistake,
and that before attacking he did his utmost to
ascertain the character of the vessel. In every case
the presumption is that the assailant intended
74
DESTRUCTION OF MERCHANTMEN
to do what he actually did. On discovery of the
error, however, he must do everything possible
to remedy the effects of his act, and must pay
due compensation.
Again, an attack on a neutral ship is excusable
if she accidentally enters the area in which an
engagement is in progress, and the act results
from the legitimate operations against the enemy ;
it is justifiable if, after due warning, she deliber-
ately enters therein,^ or clearly acts in complicity
with the enemy. The scene of action, in such a
case, must be interpreted as the place where
fighting is in progress ; it doe^ not coincide with
the so-called war zone which the exaggerated
pretensions of a belligerent purpose to extend
over an extraordinarily large area, whereby
neutral rights are manifestly invaded. At all
events, whatever understanding — for example,
as to guidance and directions for sailing — may
be arrived at between a belligerent and neutral
powers with regard to the restricted use of such
area, and whatever right of interference with
^ In 1800 a Swedish vessel, the Hoffnung, was used by the
British to cut out Spanish frigates from the harbour of Barcelona
(C. de Martens, Causes Celebres (Leipzig, 1859), vol. iv. pp. 219
seq.; Ortolan, Diplomatie de la Mer (Paris, 1864), vol. ii. pp. 30,
31). Similarly, in 1870 the Germans sank six British vessels in
the Seine to prevent the French gunboats from ascending the
river and interfering with the German operations (Pari. Papers
(1871), vol. 71 ; Annttal Register (1870), p. no).
75
DESTRUCTION OF MERCHANTMEN
neutral ships a belligerent claims, a belligerent
warship is not entitled to make an attack on a
neutral vessel found there. The only right of
interference is that of visit and search, followed
by seizure and removal to port for adjudication
when there is valid ground therefor. Attack is,
however, justifiable in case the vessel repeatedly
attempts to escape after the summons to heave
to, or offers forcible resistance to visit. Unlike
an enemy merchantman, a neutral merchant-
man is not entitled to resist visit and search,
except where the belligerent acts in an illegiti-
mate manner.
Suspicion no Mere suspicion is not, and can never be, a
^™" attack valid ground for attacking a merchantman.
** That a commander may fire on a craft that has
aroused his suspicions," observes Sir Edward Fry,
" without being quite sure of its hostile character,
has never received approval or recognition in any
treaty or other international document, or other-
wise been admitted by the practice of any civilised
nation or by any jurist. The argument to the
contrary might be stated thus : The commander
of a ship of war is under an absolute obligation
to protect his ship from destruction or injury ;
that the development of the power of attack by
means especially of torpedoes has increased the
danger of attack, and, as a consequence, has
76
DESTRUCTION OF MERCHANTMEN
enlarged the right of defence ; that this right of
defence cannot be effectually acted upon without
occasionally causing injury to neutral vessels,
and that such injury, when it occurs, must be
endured as the result of the exercise of a right of
defence. — Even assuming the facts involved in
such an argument to be correct, the conclusion
cannot be maintained/' ' Pretensions of this kind
would render peaceful shipping liable to be
injured or even destroyed at the arbitrary dis-
cretion of naval officers actuated by extravagant
and factitious claims of self-defence. The law of
neutrahty was not established purely and simply
in the interests of belligerents ; its purpose is to
effect a definite compromise between belligerents
and neutrals, to give certain rights to and impose
certain duties on neutrals, to confer certain
corresponding rights and impose corresponding
obligations on belligerents ; to restrict and
circumscribe the range of lawful conduct of belli-
gerents, and thus to prevent a recourse to excuses
of self-defence and necessity. Military necessity
cannot properly be considered a justification as
against neutrals, whatever validity it may be
claimed to possess as against the enemy. Accord-
^ " The Rights of Neutrals as Illustrated by Recent Events "
(a paper read before the British Academy, May 23, 1906), in
Proceedings of the British Academy, vol. ii, (reprinted, London,
1906), p. 3.
77
DESTRUCTION OF MERCHANTMEN
ingly, as Sir Edward Fry concludes, *' if there be
circumstances under which the right of defence
cannot be exercised without injury to neutrals,
it ought not in such a case to be exercised at all/' ^
The means of hostile attack have no doubt in-
creased considerably in modern warfare ; but so
have the means of discovering the approach of
enemy forces and of verifying their true char-
acter. During the Russo-Japanese War, when
Russian warships fired on suspicion, and hence
unlawfully, on British vessels in the North Sea^
the British protest brought forth assurances from
the Russian Government that such proceedings
would not be repeated ; which showed that the
Russian forces possessed adequate means, if they
chose to use them, for ascertaining the character
of passing ships. In the case of the present war,
various states have strongly protested against
the German attacks on merchantmen on grounds
of suspicion ; one of the American Notes to this
effect has already been referred to.
3 . The destruction of neutral merchantmen
General (a) General Rule. — Having considered the
rule of non- . r • i • i • • i «
destruction question oi sei2;ure, adjudication, and attack,
' " The Rights of Neutrals as Illustrated by Recent Events "
(a paper read before the British Academy, May 23, 1906), in
Proceedings of the British Academy, vol. ii. (reprinted, London^
1906), p. 3.
78
DESTRUCTION OF MERCHANTMEN
we come now to the more particular question of
the destruction of neutral prizes. It may be
said at once that since adjudication in the case
of a neutral vessel cannot legitimately be dis-
pensed with (as was shown above) it follows that
destruction may not be resorted to. ''As regards
the sinking of neutral prizes/' wrote Sir Edward
Grey, stating the customary rule, *' Great Britain
has always maintained that the right to destroy
is confined to enemy vessels only, and this view
is favoured by other Powers. Concerning the
right to destroy captured neutral vessels, the view
hitherto taken by the greater naval Powers has
been that, in the event of it being impossible to
bring in a vessel for adjudication, she must be
released." ^ British Prize Courts have for over
two centuries held this to be the general
law.-
Juristic opinion is for the most part to this Juristic
effect. The majority of jurists and publicists °^"^^
who have dealt with the subject regard the pro-
hibition as absolute, and consequently hold that
where the suspected or offending vessel cannot be
taken into port, she must be released whatever
may happen to any contraband cargo on board.
^ Sir Edward Grey to Sir Edward Fry, June 12, 1907 • P^^^'
Papers, MiscelL, No. i (1908), pp. 17, 18.
2Cf. The Acteon (181 5), 2 Dods., 48; The Felicity (1819),
2 Dods., 381; The Leucade (1855), Spinks, 2i7«
79
DESTRUCTION OF MERCHANTMEN
Some writers, however, whilst recognising that
the rule of non-destruction is clearly established
as a general rule, admit that in certain extra-
ordinary circumstances destruction may be
resorted to, subject to the payment of indemnity
by the captor. That such admission does not
really impair the generality and applicability of
the rule will be seen below. Other writers,*
again, do not even refer to the question, as though
it was understood that the very neutrality of
the merchantman necessarily protected her from
destruction at the hands of a belligerent. They
speak, rather, in this respect, only of enemy
prizes ; and when the word '* prize " is used
without qualification, it is taken for granted that
vessels belonging to the enemy are alone meant,
so far as sinking or burning is concerned. This
verbal usage is found in the great French auth-
vaiin ority, Valin ^ ; the word '* ennemi " in reference
to prize is omitted by him in one or two places,
and so some subsequent writers have mechanically
copied his text and appear to have interpreted it
as though the expressions '' vaisseau," ** prise,'*
^ G. F. de Martens, Les Armateurs, les Prises, et les Reprises
(Gottingue, 1795) ; H. Wheaton, A Digest of the Law of Mari-
time Captures and Prizes (New York, 1815) ; F. de Cussy, Phases
et Causes Celebres du Droit Maritime des Nations (Leipzig, 1856).
2 Traite des Prises (ed. 1763), vol. i. p. 133 ; Commentaire sur
VOrdonnance de 1681 (ed. 1766), vol. ii. pp. 281-288.
80
DESTRUCTION OF MERCHANTMEN
etc,, applied equally to neutrals,^ Valin uses
these words : '* II est per mis aux preneurs par
Tart, 19 de notre ordonnance d'enlever les
marchandises de la prise en tout ou en partie
en relachant le navire, ou mieux en y mettant
le feu ou en le coulant a fond, suivant Tordon-
nance du 2 decembre 1693, apres en avoir retire
tous les prisonniers/* If this Ordinance applied
to neutral pri2;es it could not have spoken in
such general unqualified terms of taking off the
prisoners ; for innocent neutral passengers and
crews were not liable to be taken prisoners,
whatever treatment neutral property may have
been subject to*
However this may be, what is of the utmost Rule respect-
importance is that in the history of naval war^ar""^^^
belligerents have — ^with certain exceptions to be
presently referred to — ^regularly and consistently
observed this rule. Governments have never
expressly claimed the right to destroy neutral
prizes, if their formal regulations are to be
rationally interpreted and read with the cus-
tomary law consecrated by long-established
practice. Their edicts, ordinances, decrees, state reguia-
instructions, and prize rules speak of ** enemy **°"^
1 This is emphasised by T. Baty, Britain and Sea Law (London,
191 1), pp. 22, 23; also in Revue de Droit International (1906),
p. 434.
81 F
DESTRUCTION OF MERCHANTMEN
prizes " ^ or '* prizes '* " ; they cannot have
meant to apply the same treatment indiscrimin-
ately to neutral and to enemy vessels,' The
fundamental principle of neutrality demands
that neutrals are not to be treated as enemies,
that some clear differentiation between them is
indispensable, that additional precautions have
to be taken by belligerents to ensure their safety
and freedom from molestation. And yet not a
single provision is to be found in these written
codes pointing to such precautions, not a single
direction is given to commanders to pay regard
to the absolute inviolability of innocent neutral
persons found on board prizes. It is reasonable
to infer, then, that the said codes did not con-
template the deliberate destruction of neutral
merchantmen at all. Even if the omission to
differentiate between neutral prizes and enemy
prizes were deliberate, and the word ** prize **
were purposely used in the instructions of this
or that state to apply equally to the captured
1 Cf. the Instructions of Great Britain {Manual of Naval Prize
Law, Arts. 303, 304), and those of Japan, 1894.
' Cf. the Instructions of France, Russia, United States, and
Japan (1905) : see Pari. Papers, MiscelL, No 5 (1909)/ PP- 99 ^^g.
' The German Prize Code, dated Sept. 30, 1909, allows
(Art. 113) the destruction of neutral prizes in circumstances
somewhat similar to those mentioned in the Declaration of
London. But, as is pointed out further on, this part of the
Declaration being contrary to the customary law is not binding.
82
DESTRUCTION OF MERCHANTMEN
merchant ships of neutrals and to those of the
enemy, it cannot be inferred therefrom that
the law is thus necessarily altered. No power Alteration of
or group of powers can alter a long-established ^^
rule that has so constantly been respected in
practice ; much less can any power or powers
alter a long-established rule by the use of am-
biguous or ill-defined generalised expressions
in their municipal regulations. Where there
is an ambiguity the presumption must be that
the expression was used, at all events, com-
patibly with the existing law. In order to effect
a change in the law the express or tacit consent
thereto of the society of nations in general is
indispensable. By no means can it be said that
the society of nations has consented to assimilate
neutral vessels and neutral persons to enemy
vessels and enemy persons. States are, of course,
entitled to issue to their forces what orders they
think fit ; but their pri2;e regulations would be
invalid from the point of view of international
law and usage — the inevitable and predominating
criterion when other states are concerned — if
they directed commanders to do anything or
refrain from doing anything in contravention
of that law and usage ; and commanders acting
in accordance with such invalid regulations
would be guilty, along with their governments,
83
DESTRUCTION OF MERCHANTMEN
of a breach of international law and of an offence
against the society of states as well as against
the enemy state directly affected*
Municipal Professor Holland^ referring to the British
inteniatioii Hile in the Manual of Naval Prize Law of 1888
'^^ that neutral prizes are to be released if they
cannot be sent in, describes it as an ** indulgence **
that can hardly be proclaimed as an established
rule of international law, seeing that the prize
codes of some countries allow the sinking of
neutral prizes in certain circumstances*^ It is
submitted, however, comformably to our previous
argument, that, in the first place, ** indulgence **
is a question-begging expression ; secondly — as
we have already emphasised — the municipal dis-
positions of two or three states cannot create new
rules or abrogate existing rules of international
law ; and, thirdly, their municipal dispositions
are not necessarily to be construed as aiming
at neutral prizes, which are not expressly speci-
fied. It should be added that just before
describing the rule of release as an '' indulg-
ence *' and *' hardly "' a rule of international
law. Professor Holland doubted whether ** even
overwhelming necessity would be sufficient to
^ T. E. Holland, " Neutral Duties in Maritime War," in
Proceedings of the British Academy, vol. ii. p. 13. Cf. his Letters
to the Times upon War and Neutrality (1909), p. 148.
84
DESTRUCTION OF MERCHANTMEN
justify ** destruction — a doubt which destroys or
at the least considerably impairs his subsequent
conclusion.
(6) Alleged Exceptions. — Admitting, then, that
the rule under the customary law is non-de-
struction of neutral merchantmen, can it be said
that there are exceptions thereto in certain
circumstances of extraordinary emergency when
the vessel cannot be taken in $*
We have already seen that under the practice Claims as to
of Great Britain and other maritime powers ^*'^®p^°°^
the rule of prohibition was absolute, admitting
of no exceptions. Here and there, however,
jurists ^ were inclined to the view that in certain
exceptions the general rule of prohibition might
be disregarded by commanders of warships ;
and it was also alleged that some few states
tacitly claimed such a dispensation in excep-
tional cases of necessity. But there was never
any unanimity as to the exceptions. The con-
clusions formulated by the Institut de Droit
International have already been pointed out in
the consideration of enemy prices. The growing
feeling in various quarters that some relaxation
^ E.g. F. de Martens, Traite de Droit Int., vol. ii. p. 126 ;
Calvo, op. cit., vol. v. Sec. 3028 ; P. Fiore, Nouveau Droit Inter-
national Public (Paris, 1869) ; F. Perels, Manuel de Droit Mari-
time International (Paris, 1884), p. 334; C. Dupuis, Le Droit
de la Guerre Maritime, etc. (Paris, 1899), p. 339.
85
DESTRUCTION OF MERCHANTMEN
from the general rule of non-destruction is
desirable is shown in the transactions of the
Institute. In the earlier discussions of this body
certain members ^ (for example, Sir Travers
Twiss) urged that a clear distinction should be
drawn between neutral and enemy vessels, and
that it was exorbitant to allow a neutral vessel
to be destroyed without adjudication. M.
Bulmerincq, who prepared the original draft,
said he purposely avoided such discrimination.
M. Bluntschli and M. Den Beer Poortugael
maintained that the circumstances in which
enemy prices might be destroyed could not all
equally apply to neutral prizes. M. de Martens
and M. Perels argued that a captured neutral
vessel with contraband on board could not be
expected to be released in any of the five contin-
gencies, viz. her unseaworthiness, slowness,
remoteness of the captor's port, inability to spare
a prize crew, his fear of recapture owing to the
approach of superior enemy forces. Others
proposed that destruction in the specific cir-
cumstances should be confined to enemy prizes,
and to such neutral vessels as were manifestly
subject to condemnation.* Eventually the
^ Annuaire de Vlnstitut de Droit International (1882-1883),
vol. vi. p. 134.
* Ibid. pp. 154, 155, i68, 169.
86
DESTRUCTION OF MERCHANTMEN
Institute adopted the article, as originally drafted,
which speaks of ** prize ** only, and draws no
distinction between neutral and enemy prizes,^
At a subsequent meeting (Heidelberg, 1887) it
was resolved to limit the application of the
article to enemy prizes ; and some years later
(Oxford, 191 3) the right to destroy enemy vessels
was expressly recognised,*
It has sometimes been asserted that in extra- Destruction
ordinary cases destruction might lawfully bepcnsation
resorted to on condition of paying compensation
to the neutral owners. But the readiness to pay
compensation cannot confer a right to destroy,
and the actual payment of it cannot be a retro-
spective justification of an act of destruction*
Such judgments as those of Lord Stowell in The
Felicity ^ and Dr, Lushington in The Leucade *
appear to have been on this point misinterpreted
by some commentators. Lord Stowell declaring
that it was ** clear in principle and well established
in practice ** that a captor was bound to release
a captured vessel when it was doubtful whether
she was enemy property and it was impossible
1 Annuaire de VInstitut de Droit International (1883-1883),
vol. vi. p. 221.
2 Annuaire (1913), vol. xxvi. p. 348.
3 (1819) 2 Dods., 381. Cf. The Zee Star (1801), 4 C. Rob., 71 ;
The Acteon (1815), 2 Dods., 48.
^ (1855), Spinks, 217, at pp. 221, 231.
87
DESTRUCTION OF MERCHANTMEN
to bring her in, observed : *' In fact, where
the property was neutral, the act of destruction
could not be justified by the gravest importance
of such an act to the public service of the cap-
tor*s own state ; and to the neutral it could be
justified, under any circumstances, only by a
full restitution in value/' Dr, Lushington said :
** If the ship be destroyed for reasons of policy
alone, as to maintain a blockade or otherwise,
the claimant is entitled to costs and damages ; **
and that destruction '' could only be justified
on the grounds of public pohcy, and for illegal
acts done for such a reason responsibility must
attach/*
♦*justffica- Now neither of these decisions goes to show
destruction that a belligerent may lawfully sink a neutral
vessel in certain circumstances on condition
that he pays for her. These judges were avowedly
concerned only with the remedy they could
grant in their own courts to private persons ;
they were not called upon to deal with the
broader question of infringing the rights of
neutral states, and with the restrictions imposed
by international law on belligerent operations.
Lord Stowell, indeed, adverts to this broader
question when he says that no exigency of
public policy can '* justify '' the destruction of
a neutral merchantman. The word ** justify "
DESTRUCTION OF MERCHANTMEN
is used here in its strictly correct sense, viz* that
an illegitimate act cannot be rendered legitimate ;
but in the second case it is obviously used with
a different significance and application. The
justification in the first case appertains to the
sanction of law and right ; in the second case
it means no more than compensation, indemnity,
or reparation. The clear implication is that to
sink a neutral vessel deliberately is an illegitimate
act even though it be dictated by state interest,
and as such it is an offence against the neutral
state concerned ; it is not an offence, under
strict international law, against the individual
owner himself, who, however, is entitled, under
the dispensation of our prize courts — and under
the fundamental principles of equity recognised
by the juridical consciousness of civilised man-
kind— to have his loss made good. The con- Payment does
elusion that follows from this interpretation is ^ destroy^ ^
that a neutral merchantman may not be destroyed,
and if one is destroyed in contravention of this
prohibition the value must be refunded and
costs and damages paid, that is, a penalty, too,
is imposed on the destroyer. It is clear, then,
that if compensation and damages must be paid,
it is because a wrongful act has been done
deliberately. So that on either interpretation of
the word ** justify ** as used by Lord Stowell,
89
DESTRUCTION OF MERCHANTMEN
the rule of non-destruction is vindicated. Those
who cite these judgments of Lord Stowell and
Dr. Lushington as against the rule of non-
destruction appear to hold that because full
payment is to be made for doing a certain wrong-
ful act, therefore such an act may lawfully be
done if payment is made for it. The fallacy
involved in this argument is not less than it is
in the following : Because you are to suffer
imprisonment for committing robbery, therefore
you may lawfully rob if you are prepared to
suffer imprisonment. Purgation does not involve
legalisation.
Ruicofnon- (c) The Russo- Japanese War* — This rule of
destruction , • t i i i •
consistently non-destruction was uniformly observed in a
°^wititf oi^ long succession of past wars until the beginning
exception— of the twentieth century.^ Some writers have
in past wars , -^ . _ . , .
erroneously pointed to examples of British
practice to the contrary in the Napoleonic wars.
It is true that four American ships — the Felicity f*
the ActeoTif^ the RufuSf* and the William * — were
sunk by the British. But they were not neutral
vessels ; they were enemy vessels claiming to
^ See T. Baty, Britain and Sea Law (London, 191 1), pp. 2-25 ;
J. W. Garner, " Some Questions of International Law in the
European War," in American Journal of International Law,
January, 1916.
2 (1819), 2 Dods., 381. » (1815), 2 Dods., 48.
^ (1815), 2 Dods., 55. * (181 5), 2 Dods., 55.
90
DESTRUCTION OF MERCHANTMEN
sail under a British license, which in some cases
was of a doubtful character* Due restitution
was none the less made, not on the ground that
they were neutral vessels, but because of the
breach of the special protection that had been
conferred upon them as enemy ships* However
this may be, before the Russo-Japanese War
belligerents recognised, by their conduct, the
general applicability of the rule of non-destruc-
tion in reference to neutral vessels ; they did
not render the prohibition nugatory by claiming
that there were various exceptions. They had
countless opportunities and temptations* A
commander cannot have been in a very benevo-
lent mood on encountering a neutral vessel
carrying arms and munitions to his enemy. Yet
the rule was invariably observed ; its binding Departure in
force was admitted. In the Russo-Japanese jap^^e
War practice to the contrary was begun by the ^^
Russian forces*^ They sank a number of neutral
vessels, viz., the British vessels Knight Com-
mander,^ SL Kilda,^ Oldhamia,*' Ikhona,^ Hip-
1 Cf. T. J. Lawrence, War and Neutrality in the Far East,
2nd ed. (London, 1904), pp. 250-289 ; A. S. Hcrshey, The
International Law and Diplomacy of the Russo-Japanese War
<New York, 1906), pp. 136 seq.
2 (1905) Hurst and Bray, Russian and Japanese Prize Cases,
vol i. p. 54.
3 (1908) ibid. p. 188. * (1907) ibid. p. 145.
^ (1907) ibid. p. 226.
91
DESTRUCTION OF MERCHANTMEN
sang ^ ; the German vessels Thea,^ Tetartos ' ;
and the Danish vessel Prinsesse Marie.* The
Hipsang was not a pri^e at all ; she was sunk
by a pursuing torpedo-boat on the ground that
she was trying to evade capture. The reason
given for destroying the Thea was that she had
been engaged in a Japanese '* close *' trade ; but
the Russian Supreme Court found that she had
been engaged in the coasting trade, and that this
was not a '' close '' trade, so that compensation
was awarded to the owners. In the other cases
the ground alleged was the carriage of contra-
band ; of these the Oldhamia was not deliberately
destroyed, but was set on fire after becoming a
wreck. The Russian Court decreed compensation
also in the case of the SU Kilda and the Ikhona*
British pro- The destruction of the Knight Commander
**^^was correctly described by Mr. Balfour in the
House of Commons as '* entirely contrary to
the practice of nations.** ^ In the House of Lords
Lord Lansdowne designated the act an '' outrage **
and observed that ** a very serious breach of
international law had been committed by the
captors. . . . Under no hypothesis can the
Government conceive that a neutral ship could
^ (1907) Hurst and Bray^ Russian and Japanese Prize Cases,
vol. i. p. 21. 2 (1904) ibid. p. 96.
3 (1906) ibid. p. 166. * (1908) ibid. p. 276.
^ Hansard, vol. 138, 4th ser. p. 1481.
92
DESTRUCTION OF MERCHANTMEN
be sunk on the mere fiat of a cruiser*s com-
manding officer, who assumed that the cargo
of the vessel included articles which were
contraband of war/' ^ A note was forthwith
despatched to Russia emphatically denying a
captor's right to sink a neutral ship owing to the
difficulty or impossibility of taking her in for
adjudication by reason of the distance of the port,
the length of the voyage, the large amount of
coal necessary therefor, or inability to provide a
pri^e crew* Such measures, which would para-
lyse neutral trade, were ** contrary to acknow-
ledged principles of international law/' The
British Government refused to acquiesce in the
introduction of a new doctrine whereby, on the
discovery of articles alleged to be contraband,
the vessel was, without adjudication and not-
withstanding her neutrality, liable to treatment
which was reluctantly applied even to an enemy
ship,2 In reply, the Russian Government gave Russian
assurances that the practice would be discon-^^^^
tinued* The following summer, however, the
practice was renewed. In answer to Lord
Lansdowne's protest against the destruction of
the St* Kildttf Count Lamsdorff said that the
^ Hansard, vol. 138, 4th ser. p. 1436.
2 Lord Lansdowne to Sir C. Hardinge, British Ambassador
to Russia, August 10, 1904 : Pari. Papers, Russia, No, i (1905),
pp. II, 12.
93
DESTRUCTION OF MERCHANTMEN
previous assurances still held good ; and that
** the present case was an isolated one, probably
due to misunderstanding and the disorganisation
of the Russian naval forces in the Far East ; *' and
he promised to order the offending cruisers home,
American The American Government, too, declared, in
^"^^^^^ reference to the destruction of the Knight
Commander f that the carriage of contraband did
not in itself justify the sinking of the vessel, but
was not prepared to maintain that a prize might
not be legitimately destroyed by a captor in case
of '' imperative necessity." However, the Russian
Government was informed that the United
States would ** view with the gravest concern
the application of similar treatment to American
vessels and cargoes/* ^
No legal pre- In view of these protests, the assurances of
the Russian Government, and the disavowal of
the acts committed, it is impossible to regard
the cases of destruction in the Russo-Japanese
War as precedents modifying the existing cus-
tomary law of nations.
Persons on It may be added that the Russian captors,
before destroying their prizes, removed the
persons on board, though in some cases too little
time was allowed for the transhipment.
^ Foreign Relations of the United States, 1904, pp. 333, 337^
734.
94
DESTRUCTION OF MERCHANTMEN
After the Russo-Japanese War the tendency Tendency of
of juristic doctrine became stronger in favour of Rurso-*^^^'^
the destruction of a neutral prize in certain ^pJ°®^^
clearly-defined conditions, e*g. when she is
found carrying such contraband goods as arms
and munitions in very large quantities and it is
impossible to take her in, so that to release her
would be tantamount to allowing the fighting
resources of the adversary to be augmented,^
Furthermore it was felt that the claims of various Growing
states in regard to the destruction of neutral stat^ °
prizes were becoming more markedly opposed
to the British rule of absolute prohibition.
Accordingly an attempt was made at the Hague
Conference of 1907 and at the London Naval
Conference of 1908- 1909 to arrive at a general
understanding on the question.
(d) The second Hague Conference and the London object of
Naval Conference. — It is to be noted that the Hague Con-
second Hague Conference was not concerned ^®*"^°*^^
with formulating the law as it then was ; its
avowed object was to agree upon what the law
should be conformably to the desire of the
states of the world, and so to make the necessary
changes in pursuance of such agreement.
Great Britain proposed what she held to be British pro-
the existing rule, viz., the release of a neutral ^°^^
^ Cf. J. B. Moore, Digest of International Law, vol. wii. p. 523.
95
DESTRUCTION OF MERCHANTMEN
prize which could not be taken in for adjudi-
cation/
American The United States supported the same rule
proposal ^^ grounds of humanity and justice, and pointed
out that the present construction of warships
offered little accommodation for persons removed
from captured vessels, and exposed them —
non-combatants — to the dangers of battle. More-
over, she proposed the abolition of the capture
of private unoffending property*^
Russian pro- Russia proposed that, as absolute prohibition
P°^^ would place powers not possessing overseas ports
in a disadvantageous position, exceptions should
be allowed in case the safety of the captor or the
success of his operations was endangered by an
attempt to take in a prize ; and that in any case
destruction should be resorted to with the
greatest reserve after providing for the security
of the persons on board, the ship's papers, and
as far as possible the cargo.^
German view Germany defended the views of the Russian
Government.^
Views of Some states supported the American proposal
other states £qj, the abolition of capture altogether, others
1 Deuxieme Conference Internationale de la Paix : Actes et
Documents (1907), vol. iii. pp. 903-907.
^Jbid. pp. 1050, 1141 ; cf. pp. 750-755/ 77^779* 795-8o8.
3 Ibid. pp. 900, 991-992.
* Ibid. pp. 992, 993-
96
DESTRUCTION OF MERCHANTMEN
opposed it on the ground that it was necessary
first to come to an agreement as to contra-
band and blockade ; others, again, suggested
sequestration and non-destruction. In the end
unanimity was found to be impossible. The result
of the deliberations showed that there was a
slight majority in favour of admitting prices into
neutral ports, a somewhat larger majority in
support of the prohibition of destruction, subject
in some cases to the establishment of free access
to neutral ports, and a slight majority (though
many states abstained from voting) in favour
of destruction in general and apart from any
proviso,^
At the London Naval Conference (1908- 1909) Object:of
another attempt was made to adjust the different Navai°con-
views of states ; but this time it was less a ^^'^'^^^
question of establishing a new rule (lex ferenda)
than of formulating the existing law (lex lata)*
There was, however, marked disagreement as
to what was the existing law.
Great Britain, supported by Japan, urged the
absolute immunity of neutral prizes from de-
struction,^ But the other powers, whilst differing
^ Deuxieme Conference Internationale de la Paix : Actes et
Documents (1907), vol. i. pp. 262-264 (General report to the
Conference) ; A. Pearce Higgins, Hague Peace Conferences, pp.
89-92.
* Pari, Papers, MiscelL No. 5 (1909), p. 38.
97 O
DESTRUCTION OF MERCHANTMEN
more or less from each other, proposed non-de-
struction as the general rule, but that destruction
should be exceptionally permissible in circum-
stances of urgency or necessity whereby the
taking of a prize would endanger the safety of
the captor or the success of his operations.^
A com- In view of this difference of opinion, a com-
cScSd promise was eventually arrived at and was
embodied in the Declaration of London.
B. The Declaration of London on Destruc-
tion OF Neutral Prizes
General rule The Declaration of London recognises the
general rule of non-destruction and the duty of
bringing in for adjudication.'
Exceptions Exceptionally, however, a captor may destroy
the neutral prize if he can prove that she was
confiscable, and that she could not have been
brought in without endangering his safety or the
success of his operations at the time ' ; but
before destroying her provision must be made
for the safety of all persons on board and the
ship's papers.* The owner of destroyed innocent
neutral goods on board is entitled to compen-
sation.^
^ Pari. Papers, Miscell. No. 5 (1909), passim.
"Art. 48. ^Arts. 49, 51. ''Art. 50. ^ Art. 53.
98
DESTRUCTION OF MERCHANTMEN
Owing to the non-ratification of the Declaration Declaration
of London, however, it does not possess, as such, not binding
binding force,^ Accordingly the customary law
alone remains applicable, with which, however,
the Declaration agrees in certain respects, A
belligerent may adopt or reject or modify any
of the provisions of the Declaration, so long as
the adoption, rejection, or modification involves
no inconsistency with the customary law. And
it must be emphasised that under this customary
law, military necessity and readiness to pay
compensation — though they may be pleaded in
extenuation when a neutral prize is destroyed —
cannot be considered a legal justification.
C. Rules and Practice in the Present War
So far as relates to the destruction of neutral Capture and
prizes neither Great Britain nor France has iiTprMent"
made regulations inconsistent either with the''^
Declaration of London or with the customary
law, and their practice has conformed throughout
to the rules of established law. As for Germany,
Art. 113 of her prize code of 1914, which was
published on the outbreak of the present war,
instructed her naval officers to destroy neutral
prizes for contraband trading, violation of
^ Cf. The Hakan (1916), 2 Prize Cases, 310.
99
DESTRUCTION OF MERCHANTMEN
blockade, or for unneutral service, if to take them
in for adjudication might endanger the captor *s
safety or the success of his operations ; which
contingency would arise in any of the following
circumstances : unseaworthiness of the prize,
her incapacity to follow the captor, insufficiency
of coal for the voyage, proximity to the enemy^s
coast, or inability to provide a prize crew* Art.
ii6 requires that the captor, before proceeding
to destroy a prize, should remove all persons on
board and ship's papers, and make due pro-
vision for their safety.^
German The practice of the naval forces of Germany
proceedings j^^^ ^^ ^ ^^^ great extent been contrary not only
to her own regulations laid down in her prize
code, but also — what is much more important —
to the long-established and universally respected
rules of customary law. Indeed, the number
and the magnitude of the violations committed
have far surpassed all the breaches of maritime
law committed by all the combatants together
in the last two centuries. The public vessels of
Germany have attacked and destroyed innumer-
able ships without ascertaining their nationality,
their character, or the nature of their enterprise.
In many cases the duties of visit and search and
^ Cf . C. H. Huberich and R. King, The Prize Code of the German
Empire (New York, 191 5), p. 66.
100
DESTRUCTION OF MERCHANTMEN
taking in for adjudication were disregarded.
Torpedoes were fired at passing ships on mere
suspicion. Numerous enemy merchantmen were
sunk without warning ; and a number of neutral
merchantmen were dealt with in the same
manner. In some cases where warning was
given the time allowed was too short for pur-
poses of transhipment, and due provision was
not made for the safety of the persons on board.
The very use of submarines against merchant-
men— even against enemy merchantmen, as has
been shown above — is unlawful. All — belliger-
ents and neutrals alike — who have suffered loss
in lives or property as a result of this unlawful
conduct are entitled to full reparation.
lOI
INDEX
INDEX
[For Index to judicial cases, see p. lo.]
Alabama, the, 49
Allen, 49 n.
American Civil War, practice in,
44, 45/ 49> 50
American Revolution, practice
in, 49
American-Spanish War, prac-
tice in, 45
Anglo-American War (1812-
14), practice in, 44, 49
Ariel, the, 49
Armed merchantmen —
armament, legahty of, 20
legal position of, 20, 21
neutral goods on, 58-61
self-defence of, 20
Attack-
enemy vessels, on, see
Enemy merchantmen ;
Enemy public vessels
neutral vessels, on, see Neu-
tral merchantmen
B
Balfour, 92
Barboux, 39 n.
Baty, 81 n., 90 n.
Belligerent and neutral interests,
73/74
Bernard, 32, 33
Bluntschh, 29, 86
Boeck, De, 27 n., 30
BoUes, 50
Bulmerincq, 29, 30, 40 n., 86
Calvo, 43 n., 85 n.
Cartel ships, 67
Compensation in relation to
destruction, 87-90
Consolato del mare, 22
Crews, enemy prizes, on, 45
seq,
Crimean War, practice in, 44,
45, 62, 65, 66
Cussy, 80 n.
D
Declaration of London on de-
struction of neutral prizes,
98, 99
Declaration of Paris, 15, 16 n,,
55/ 56, 57/ 58
Den Beer Poortugael, 86
Destruction —
enemy merchantmen, of, 27
seq.
judicial decisions as to>
42,43
juristic opinion as to, 27-
37
practice in wars, 44, 45
special cases of exemp-
tion, 61 seq.
105
DESTRUCTION OF MERCHANTMEN
Destruction (cont.) —
enemy merchantmen, of
(cont.) —
State regulations as to,
38-42
visit necessary before, 17
neutral merchantmen, of,
78, seq.
compensation in rela-
tion to, 87-go
condemnation prior to,
79
general rule, 78, 79
juristic opinion as to,
79-81, 85-87
justification of, 88-90
persons on board, 94
Distress, vessels in, 68
Dupuis, 85 n.
E
Eitel Friedrich, the, 50
Emden, the, 50
Enemy merchantmen —
armed, see Armed merchant-
men
capture related to owner-
ship, 21-27 ; see Property
crews of, 18, 45 seq.
defence, right of, 17-20
defensive - offensive mea-
sures by, 18-20
destruction of, see De-
struction
difference between enemy
warships and, 14-16
escape, right of, 17, 18
exemption from attack,
special cases of, 61 seq.
neutral cargoes on board, 16,
54-61
neutral persons on board, 16
offensive, may not take the,
17
outbreak of war, at, 61-64
Enemy merchantmen {cont.) —
passengers on, 45 seq.
position of, 15
restoration of uncon-
demned, 25
submarine, when, may ram
a, 19, 20
visit necessary in case of,
16, 17
Enemy public vessels-
attack on, 15
destruction of, 15, 21
goods on board, 21, 22
property in, 21
Enemy ships, enemy goods, 55
Fiore, 85 n.
Fishing-vessels —
coast, 65
deep-sea, 65
Fonseca, 29
France —
destruction of prizes, de-
cisions of Prize Courts
as to, 43
regulations as to, 38, 39,
80, 81
distress, vessels in, 68
fishing-vessels, protection
of, 66
neutral cargo on enemy
prizes, 56, 57, 58
passengers and crews on
prizes, 46, 47
practice in Great War, 99
Franco- German War, practice
io/ 45. 56, 75 n.
Frankfort, Treaty of, 25
Free ships free goods, 55
Fry, Sir Edward, 76, 77, 78
Gamer, 50 n., 90 n.
106
DESTRUCTION OF MERCHANTMEN
Germany —
destruction of prizes, rules
as to, 48, 82 n.
neutral goods on enemy
prizes, 57
persons on board prizes and
ship's papers, 48
practice in Great War, 70,
71, 99-101
proposal at Hague Con-
ference, 96
Gessner, 28
Great Britain —
destruction of enemy mer-
chantmen, decisions of
Prize Courts, 42, 43
regulations as to, 38, 79
neutral goods on enemy
merchantmen, 55, 56
passengers and crews on
enemy prizes, rules as to,
46 n.
practice in Great War, 99
proposal at Hague Confer-
ence, 95
at London Naval Con-
ference, 97
Great War, practice in the, 50,
57/ 99-101
H
Hague Conferences —
object of, 95
proposals of different states,
95-99
Hague Convention —
No. IV., 15
No. VI., 62-64
No. VII., 15
No. X., 67 n.
No. XL, 18, 50, 51, 66, 67,
69
No. XIL, 26
Hamelin, 44 n.
Hefftcr, 29
Hershey, 91 n.
Hoffnung, the, 75 n.
Holland, Prof., 34, 35, 38, 84
Hospital ships, 67
Huberich, 48 n., 100 n.
Hurst and Bray, 40 n., 42 n.,
48 n., 65 n., 67 n., 91 n., 92 n.
Institut de Droit International —
destruction of prizes, on,
37, 85-87
passengers, crews, ship's
papers on prizes, 48, 49
Italy-
destruction of prizes, rules
as to, 47
passengers, crew, and ship's
papers on prizes, 47
resistance by merchantmen
recognised in mercantile
marine code, ig n.
Japan —
destruction of prizes, regu-
lations as to, 41, 42,
82 n.
passengers, crew, and ship's
papers on board prizes,
48
proposal at London Naval
Conference, 97
Jones, Paul, conduct of, during
American Revolution, 49
K
Karlsruhe, the, 50
Kent, 32
107
DESTRUCTION OF MERCHANTMEN
Lamsdorff, Count, 93
Lansdowne, Lord, 92, 93
Lawrence, 91 n.
Licensed vessels, 65
London Naval Conference, 95
compromise arrived at, 98
object of, 97
proposals of states, 97, 98
Lushington, 72, 73, 87, 88,
90
Lusitania, the^ 54
M
Mail-boats and mail-bags, 68,
69
Martens, C. de, 75 n.
Martens, F. de, 30, 85 n.
Martens, G. F. de, 80 n.
Marvin, 50 n.
Merchantmen —
enemy, see Enemy merchant-
men
neutral, see Neutral mer-
chantmen
Military necessity, 53, 77, 78
Moore, 44 n., 48 n., 95 n.
N
Necessity, military, 53, 77, 78
Neutral goods on board enemy
merchantmen, 54-61
Neutral merchantmen —
adjudication essential, 71-
74
attack on, when excusable
or justifiable, 74-76
condemnation necessary for
passing ownership, 26
destruction of, 78 seq.
visit of, 70, 71
Neutrals —
commerce with belligerents,
16
interests of, as compared
with those of belligerents,.
. 73. 74
right to sail the seas, 73, 74
Non-combatants, position of, 51
O
Oppenheim, 22 n., 36
Ortolan, 66 n., 75 n.
Passengers on enemy prizes,.
45 se?.
Pardessus, 66 n.
Paris, Declaration of, see Declar-^
ation of Paris
Pearce Higgins, 16 n., 21 n.,
52 n., 62 n., 97 n.
Perels, 85 n., 86
Phillipson, 26 n., 53 n.
Pistoye et Duverdy, 44 n.
Privateering, abolition of, 15
Prize —
enemy, see Enemy merchant-
men
neutral, see Neutral mer-
chantmen
Property in enemy prize, 21 seq,
adjudication necessary to
pass, 23, 24
carher view, 22
modern view, 22
Property in neutral prize, 26
R
Regulations of states in relation
to international law, 83, 84
108
DESTRUCTION OF MERCHANTMEN
Religious mission, vessels en-
gaged in, 67
Russia —
destruction of prizes, rules
as to, 39-41, 82 n.
passengers, crew, and ship's
papers on prize, 47, 48
proposal at Hague Confer-
ence, 96
resistance by merchantmen
recog 'ised, 19 n.
Russo-Japanese War, practice
in, 45, 50, 78, 90-92, 94/ 95
Scientific mission, vessels en-
gaged on, 67
Scott, 62 n.
Semmes, conduct of, in the
American Civil War, 44, 45,
49/50
Ships, see Enemy merchant-
men ; Enemy public vessels ;
Neutral merchantmen
Ship's papers on prizes, 45 seq.
Spain, prize regulations of, 41
Spanish-American War, prac-
tice in, 45
Story, 60 n.
Stowell —
adjudication, necessity of,
on, 23, 24
destruction of enemy mer-
chantmen, 42, 43
destruction of neutral mer-
chantmen, 87, 88, 89, 90
fishing-vessels, 66 n.
neutral goods on armed
merchantmen, 58, 59
warning necessary before
attack, 51 n.
Submarine —
attack on enemy merchant-
men, 19, 20, 52-54
Submarine (cont.) —
ramming of, by enemy
merchantmen, 19, 20
Suspicion, attack on, 76, 77
Takahashi, 42 n., 45 n., 48 n.,
50 n., 62 n., 65 n,
Twiss, 33, 34, 86
U
United States —
armed merchantmen —
judicial view as to, 60
regulations as to, 20 n.,
21
capture and ownership, view
as to, 24 n., 25 n.
destruction of vessels, regu-
lations as to, 41, 82 n.
neutral vessels, position of,
view as to, 70, 71, 94
persons and ship's papers on
board prizes, 48
proposal at Hague Confer-
ence, 96
resistance by merchantmen
recognised, 19 n.
submarine warfare, views
as to, 52, 53
V
Valin, 38 n., 80
Vienna, Treaty of (1864), 25
W
Wars, practice in —
American Civil War, 44, 45,
49, 50
109
DESTRUCTION OF MERCHANTMEN
Wars, practice in (cont.) —
American Revolution, 49
Anglo-American (1812-14),
44> 49
Crimean War, 44, 55, 6a, 65,
66
Franco-German War, 45,
56, 75 n.
Great War, 50, 57, 99-
101
Russo-Japanese War, 45,
50, 78, 90-92, 94/ 95
Spanish-American War, 45
Warning necessary before
attacking merchantmen, 51-
54
Warships, visit of enemy mer-
chantmen, 14 seq.
Weapons, new, and interna-
tional law, 53, 54
Westlake, 34
Wheaton, 80 n.
Woolsey, 28 n.
Zurich, Treaty of, 35
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