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observe the laws of neutrality and respect lawful blockade, but at the same time make every possible effort that is consistent with the rules of international law to preserve and protect the lives and property of citizens of the United States wherever situated.
From article 333, which makes it incumbent that the commanding officer "afford protection and convoy, so far as it is within his power, to merchant vessels of his own State," the manner of protection to be afforded to the German merchant vessels can be determined.
Protection by one neutral of vessels of another.—While the right of a neutral warship to take vessels of her own nationality under convoy gradually came to be generally admitted, the right of one warship to take under similar protection vessels of other neutral States was a different matter. This had been claimed in the last quarter of the eighteenth century, and many treaties implying such right had been made.
Even if the right should be admitted, the obligation. of a war vessel of one neutral State to afford such protection to merchant vessels of another neutral State would be a different question. There would seem to be, in such case, lack of sufficient knowledge on the part of the commander of the war vessel as to the neutral vessel requesting protection and lack of sufficient authority over the merchant vessel of a foreign State.
The attitude of the United States on this matter was shown in the Navy Regulations of 1876, article 11:
Vessels of war are not to take under their convoy the vessels of any power at war with another with which the United States is at peace, nor the vessels of a neutral unless ordered to do so or some very particular circumstance render it proper, of which they are to advise the Navy Department at the earliest opportunity.
The regulations of 1909, article 333, state among the duties of the commander in chief:
He shall afford protection and convoy, so far as it is within his power, to merchant vessels of the United States and those of allies.
The degree of protection which a captain of a United States cruiser would give to an American merchant
vessel would depend somewhat upon the merchant vessel herself. If the vessel were guilty of violation of some law of neutrality, the captain would not be under obligation to protect her from the consequences. Even if the vessel were under his convoy, the commander of the cruiser of State X might make known to the American commander his suspicion that the merchant vessel was liable to capture, though the American captain, according to the Declaration of London, would alone be able to investigate such a charge. If the charge were found true, the merchant vessel might lose the protection of the convoy. In any case the captain of the American cruiser is free to protect or withdraw protection. If he protects the merchant vessel, the matter may become the subject of subsequent diplomatic adjustment, while, if he withdraws his protection without sufficient ground, his action may involve serious consequences to himself, his convoy, and his Government.
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."
DESTRUCTION OF NEUTRAL VESSEL.
(It is granted in this situation that the Declaration of London is binding.)
There is war between the United States and State X. Great Britain is neutral. The United States fleet is sailing to make an attack upon a fortified port of State X. The fleet comes upon a British merchant vessel bound for a port of State X and equipped with wireless telegraph apparatus and having certain articles of contraband on board. The commander of the fleet does not wish to send the British vessel to a prize court, as such a court is at a great distance. He decided to destroy the vessel and to put the crew on board a collier which accompanies the fleet. The British master protests that this is in violation of his rights.
What are the rights in this case and what should be done?
The protest of the British master against the destruction of his vessel is correct.
The commander of the United States fleet may, if military necessity or treaty provision justifies, take or destroy the contraband on board the merchant vessel, and he may take measures to assure himself that the wireless apparatus will not be put to unneutral use.
Introduction. This Naval War College has from time to time considered the question of destruction of private vessels in time of war. Prior to the adoption of any general international conventions relating to the treatment of vessels at sea in time of war the conclusions of the Naval War College have necessarily conformed as far as possible to the liberal policy of the past history of the United States. If conventions of recent years grant less exemption to merchant vessels than has been granted by earlier United States practice, if there be no
treaties or orders to the contrary, a naval officer will be under obligation to act in accord with the general conventions to which the United States may be a party. The drift of opinion and practice and the character of proposed conventional agreements show considerable change since the matter of destruction was quite fully discussed at this Naval War College in 1905.
Naval War College discussion in 1905.-Topic IV, proposed for discussion in 1905, was as follows:
Should the destruction of captured vessels be allowed before adjudication by a prize court? If so, under what condition? The conclusion reached was:
Enemy vessels.-If there are controlling reasons why enemy 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 can not be done may be destroyed. The imminent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. But in all such cases all the papers and other testimony should be sent to the prize court in order that a decree may be duly entered.
Neutral vessels. If a seized neutral vessel can not, for any reason, be brought into port for adjudication, it should be dismissed. (International Law Topics and Discussions, Naval War College, 1905, p. 62.)
In the discussion of 1905 it was said:
The destruction of a neutral ship must be clearly distinguished from the destruction of a belligerent ship even under the principles at present generally accepted. If the belligerent's vessel is good prize it may be lost to that belligerent from the time when his opponent captures it. This is not always necessarily the case, because it may be recaptured or a court for some reason may not condemn the vessel. "Quarter-deck courts" should be avoided, except in extreme instances, even in deciding on the destruction of enemy vessels. Such vessels may have neutral cargo, which may be in no way involved in the hostilities. The principle of the Declaration of Paris that "neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag," may be involved in such manner as to make great caution necessary in destroying vessels of the enemy before adjudication.
Much greater care should be taken before destroying a neutral vessel itself. (Ibid., p. 72.)
Naval War College Discussions.
Many arguments may be urged against the destruction of neutral vessels. Before destruction in any case, the crew, passengers, and papers must be taken from the neutral vessel on board the belligerent ship. These are then immediately subject to all the dangers of war to which a war vessel of a belligerent is subject. Such a position may be an undue hardship for those who have not been engaged in the war and one to which they should not be exposed.
A belligerent vessel, with crew, passengers, and papers of the destroyed neutral vessel, may enter a neutral port to which entrance with the vessel itself would be forbidden. This is in effect almost an evasion of the general prohibition in regard to the entrance of prize, because on board the belligerent vessel is the evidence upon which the decision of the prize court of the belligerent will be rendered. It is certain that a neutral State would be very reluctant to admit within its territory a belligerent vessel having on board the crew and papers of one of its own private vessels which the belligerent had destroyed. The belligerent vessel might thus obtain the supplies from the neutral which would enable it to carry to its prize court the evidence in regard to capture.
It does not seem possible in view of precedent and practice to deny the right of a belligerent to destroy his enemy's vessel in case of necessity. Of course, if the doctrine of exemption of private property at sea is generally adopted this right can no longer be sustained. (Ibid., p. 74.)
Discussions in 1907.-The subject of destruction of neutral merchantmen was again considered in Situation V of the International Law Situations of 1907. The situation proposed in 1907 was as follows:
War exists between the United States and State X. Neutral merchant vessels bound for a fortified port of State X and loaded for the most part with contraband are overtaken on the high seas by vessels of the United States Navy.
Some of these neutral merchant vessels are unseaworthy; some are overtaken at points too far from a prize court to make it advantageous to send the vessels in; others can not be cared for without impeding the action of the United States naval forces, which are in danger of immediate attack; and in other cases prize crews can not be spared to take the captured neutral merchantmen to a prize court.
What action may be taken by commanders of vessels of the United States Navy in such cases?
The solution offered was:
(a) If the contraband cargo and the seized neutral vessel have different owners, the contraband cargo, after proper survey,