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l'un et l'autre ont de commun, et s'arrêrte à tout ce que la navire de guerre a de spécial. (23 Annuaire de l'Institut de Droit International, p. 121.)
It follows from such a position as this that there would be no limitation on the sojourn of a ship of war other than upon a merchant vessel unless the sojourn was a step in the conduct of a hostile operation. The entrance to a neutral port to escape a pursuing enemy would be directly related to the military operations and should not be allowed under any conditions other than that of internment of the vessel till the end of the war.
Another group, including lawyers, writers, and naval and other administrative officials, favor the grant of a 24-hour sojourn for any ship of war that may enter a neutral port. They maintain that a neutral can not investigate the cause of entrance of each vessel, and sometimes could not learn, even by investigation; that a mistake by the neutral as to the cause of entry might have a serious bearing on the issue of the war; that what might seem a military reason to one might not to another State; that the complications introduced by inquiry as to the reason for entrance would be too burdensome upon the neutral, and that a definite rule should be established. These favor the 24-hour rule that has been widely accepted, contending that if the pursued vessel has a position which is so advantageous that it allows her to enter a neutral port she is entitled to the benefits of such entrance, and that if the pursuer wishes to overcome this advantage he should wait outside the neutral jurisdiction for 24 hours and then demand the internment of the pursued vessel if she does not come out.
Résumé. The weight of opinion, as shown in discussions and conventional agreements, seems to be in favor of allowing the 24-hour sojourn to vessels of war without obliging the neutral to investigate the cause of entrance. Practice has been to allow such sojourn. The modern tendency is to free the neutral so far as possible from the burdens of the war. The 24-hour rule of sojourn is well understood and avoids arbitrary decisions which might involve controversy. It might occur that a neutral
Application of Hague Convention.
would not regard a vessel as pursued which was in fact pursued. On the other hand, a neutral might consider a vessel as pursued which was not in fact pursued and a neutral might by internment deprive a belligerent desiring to make a capture of the opportunity.
The present law and practice is to allow the 24-hour rule to operate in absence of special regulation to the contrary, as is stated in article 12 of the Hague Convention concerning the Rights and Duties of Neutral Powers in Naval War:
In absence of special provisions to the contrary in the legislation of a neutral power, belligerent war ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than 24 hours, except in the cases covered by the present convention.
Application to Situation I.-When States X and Y are at war and the United States is neutral, colliers belonging to and bound for the fleet of X do not commit any offense against the United States by steaming within the 3-mile limit of the United States, as by the Hague Convention concerning the Rights and Duties of Neutral Powers in Naval War, article 10:
The neutrality of a Power is not affected by the mere passage through its territorial waters of war ships or prizes belonging to belligerents.
The entrance to the port from which the 24-hours' sojourn is reckoned is not from the time of passing within the 3-mile limit, for in some waters it might at an unfavorable tide, or if the vessel were disabled, take the entire period to bring the vessel into the harbor. The 24-hour period for the colliers of State X would, therefore, be reckoned from the time of entrance of the port and the colliers would be entitled under ordinary circumstances to remain 24 hours from that time.
The request of the commander of the cruiser that the colliers be interned would be a legitimate one if the colliers remained more than 24 hours, unless there were extraordinary reasons why a prolongation of sojourn should be allowed.
In this situation, however, the master of the colliers indicates his willingness to depart immediately, and, as he is the earlier arrival of two belligerents, he is entitled to precedence in departure.
This claim that the cruiser must remain the prescribed time after his departure is in accord with regulations and practice.
ART. 16. When warships belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than 24 hours must elapse between the departure of the ship belonging to one belligerent and the ship belonging to the other. (Hague convention, Rights and duties of neutral powers
in naval war.)
The fact that the colliers can reach the fleet of X before the cruiser of Y can overtake them if allowed this 24-hour start is not a matter with which the United States has concern. If the commander of the cruiser did not wish to come under the laws regulating sojourn in neutral ports, he should not enter a neutral port. There is no law that prevented him from cruising outside the 3-mile limit and awaiting the coming of the colliers.
In absence of treaty provision or other special regulation, the colliers of State X should be allowed to depart within 24 hours.
The cruiser of State Y should be detained 24 hours after the departure of the colliers.
PROTECTION TO NEUTRAL VESSELS.
There is war between States X and Y. The United States and Germany are neutral. A United States cruiser is convoying six United States merchant vessels and when 100 miles at sea is overtaken by two German merchant vessels having papers from a Prussian port. The German vessels are going on the same course and request the protection of the convoy, offering to give the same evidence of their neutral character as that offered by the United States merchant vessels. Shortly afterwards a cruiser of State X approaches and claims that she has the right to visit and search the German vessels forthwith, while the German masters claim the protection of the United States cruiser.
How should the captain of the United States cruiser act?
The captain of the United States cruiser should, in accord with special treaty provision and Navy Regulations afford to the German vessels "protection and convoy, so far as it is within his power."
Historical. The question of right of convoy became a matter of controversy in 1653, when Sweden asserted the right of its merchant vessels to exemption from search if sailing under the escort of a vessel of war. Great Britain generally opposed this contention, and in the Admiralty Manual of Prize Law of 1888 said:
No vessel is exempt from the exercise of these powers (visit and search) on the ground that she is under the convoy of a neutral public ship.
From 1653 the continental States gradually came to favor the doctrine of convoy.
The acceptance by a neutral vessel of convoy of a belligerent vessel has been regularly held by the American and British courts as equivalent to resistance to visit and search, and that such a neutral vessel is liable to the consequences. The Armed Neutrality League of 1780 and 1800 emphasized the demand of neutral commerce for protection. The resort to paper blockades and other arbitrary methods during this period and the early years of the nineteenth century prompted the negotiation of liberal treaties among the neutral States. Russia, Sweden, Denmark, and Prussia, in 1800, agreed by the terms of the league:
Que la déclaration de l'officier, commandant le vaisseau ou les vaisseaux de la Marine Royale ou Impériale, qui accompagneront le convoi d'un ou de plusieurs bâtiments marchands, que son convoi n'a à bord aucune marchandise de contrebande, doit suffire pour qu'il n'y ait lieu a aucune visite sur son bord ni à celui des bâtiments de son convoi.
The British position was uniformly against the acknowledgment of the right of convoy, though early in the nineteenth century some modifications of the previous British contentions were made. The rules of the continental States usually provide that the declaration of a convoying officer shall be accepted.
Spanish-American War, 1898.-In the SpanishAmerican War of 1898 the Spanish war decree provides:
Merchant vessels sailing under convoy, under charge of one or more ships of the navy of their nation, are absolutely exempt from the visit of the belligerents, being protected by the immunity enjoyed by the warships.
As the formation of a convoy is a measure emanating from the Government of the State to which belong the vessels protecting the convoy, as well as the vessels under convoy, it must be taken as certain that the Government in question not only will not allow fraud of any kind but has employed the strictest measures to avoid fraud being committed by any of the vessels under the convoy.
It is therefore useless for the belligerent to inquire of the chief officer of the convoy whether he guarantees the neutrality of the ships sailing under his charge, or of the cargo they carry. (U. S. Foreign Relations, 1898, p. 778.)