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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
the property belongs must not be a sufferer
* * if the captor has by the act of destruction conferred a benefit upon the public, he must look to his own Government for his indemnity." (Letters on War and Neutrality, p. 148.)
English court decisions.—Dr. Lushington in 1855 said:
I must again refer to the Actaeon. The act of destruction of the ship by Capt. Capel was in itself illegal, even if the vessel was liable to condemnation; it could only be justified on the grounds of public policy, and for illegal acts done for such a reason responsibility must attach. (The Leucade, Spinks, Prize Cases, 217.)
In the case of the Actaeon, in 1815, Sir W. Scott had said:
Lastly, it has been said that Capt. Capel could not spare men from his own ship to carry the captured vessel to a British port, and that he could not suffer her to go into Boston, because she would have furnished important information to the Americans. These are circumstances which may have afforded very good reasons for destroying this vessel, and may have made it a very meritorious act in Capt. Capel as far as his own Government is. concerned, but they furnish no reason hy the American owner should be a sufferer. (The Actaeon, 2 Dodson, Admiralty Reports, p. 74.)
Dr. Lushington, who prepared an earlier edition of the British Manual of Naval Prize Law also said in the case of the Leucade:
The destruction of a vessel under hostile colors is a matter of duty; the court may condemn on proof which would be inadmissible or wholly irregular in the instance of a neutral vessel. It may be justifiable or even praiseworthy in the captors to destroy an enemy's vessel. Indeed, the bringing in to adjudication at all of an enemy's vessel is not called for by any respect to the right of the enemy proprietor, where there is no neutral property on board. But for totally different considerations, which I need not now enter upon, where a vessel under neutral colors is detained, she has the right to be brought 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 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 ;
English Court Decisions.
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, and 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 colors be not brought to a competent court for adjudication the claimants are, as against the captor, entitled to costs and damages. Indeed, if the captor doubt bis power to bring a neutral vessel for adjudication, it is his duty, under ordinary circumstances to release her. (The Leucade, (1885), Spinks, Prize Cases, p. 217.)
This case is frequently cited by those maintaining that British law demands the release of neutral prize if it can not be taken into port.
It is evident from this decision that the destruction of neutral ships as a matter of policy was not sanctioned and that for destruction cost and damages must be paid and under ordinary circumstances the ship should be released. From the point of view of the officer of a belligerent who is engaged in important naval operations the release of a neutral vessel might be a grave danger, and at the same time the destruction might involve the necessity of payment of damages. In the case of the Felicity, in 1819, Lord Stowell said of neutral property:
Where it is neutral the act of destruction can not be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own State; to the neutral it can only be justified, under any circumstances, by a full restitution in value. These are rules so clear in principle and established in practice that they require neither reasoning nor precedent to illustrate or support them. (2 Dodson, Admiralty Reports, p. 381.)
What might be a military reason for destruction would not concern the neutral owner, but would be purely a matter for the belligerent commander to settle with his superiors. The neutral who is not taking part in the war is to be fully recompensed and is entitled to damages. The policy of Great Britain as announced at the time of the Russo-Japanese War in 1904–5 and in the instructions of her delegates to the Second Hague Peace Conference in 1907 and the International Naval Conference in 1908 was against destruction of neutral vessels. British opinion.—The memoranda submitted by the powers show that the larger number of the powers acknowledged the right to destroy captured vessels under certain conditions. Russia had destroyed neutral vessels during the Russo-Japanese War, and the Japanese regulations of 1904 had not forbidden such destruction.
While much has been said in regard to the matter in Great Britain some of the comment is certainly based upon a failure to understand the British practice. The British Manual of Naval Prize Law of 1888, edited by Prof. Holland, does say in article 303 that
If the commander is unable to spare a prize crew to navigate the vesse! to a port of adjudication the commander should release the vessel and cargo without ransom, unless there is clear proof that she belongs to the enemy. (Int. Law Topics, 1905, p. 64.)
Of this subject Prof. Holland, writing in 1905, said:
While it is, on principle, most undesirable that neutral property should be exposed to destruction without inquiry, cases may occasionally occur in which a belligerent could hardly be expected to permit the escape of such property, though he is unable to send it in for adjudication. The contrary opinion is, I venture to think, largely derived from a reliance upon detached paragraphs in one of Lord Stowell's judgments on the subject-judgments which, taken together, show little more than that, in his view. no plea of national interest will bar the claim of a neutral owner to be fully compensated for the value of his property when it has been destroyed without judicial proof of its noxious character. " Where doubtful whether enemy's property, and impossible to bring in, the safe and proper course," says Lord Stowell, “is to dismiss.” The Admiralty Manual of 1888 accordingly directs commanders who are unable to send in their prizes to "release the vessel and cargo without ransom, unless there is clear proof that she belongs to the enemy.” This indulgence can hardly, however, be proclaimed as an established rule of international law, in the face of the fact that the sinking of neutral prizes is under certain circumstances permitted by the prize codes, not only of Russia, but also of such powers as France, the United States, and Japan (1904). (83 Fortnightly Review, p. 802.)
Question of destruction at The Hague Conference of 1907. The International Law Situations of 1907 of this Naval War College (Situation V, pp. 74–108) give an extended review of opinions, regulations, practice, etc., in regard to the destruction of neutral merchant vessels Question at the Hague, 1907.
before 1907. The Russian program for the Hague Conference of 1907 raised the question of " destruction, in cases of vis major of neutral merchant vessels detained as prize.” The question proposed for discussion took the following form:
XI. Est-ce que la destruction des navires de commerce, sous pavillon neutre, chargés en temps de guerre du transport de troupes ou de contrebande de guerre, est défendue par les législations ou par la pratique internationale?
XII. Est-ce que la destruction, pour force majeure, de toutes prises neutres est illicite d'après les législations actuellement en vigueur et d'après la pratique des guerres navales ? " (3 La Deuxième Conférence Internationale de la Paix, p. 1134.)
The following propositions were presented to the Hague Conference in 1907:
La destruction d'une prise neutre par le capteur est interdite. La capteur doit relâcher tout navire neutre qu'il ne peut pas amener devant un tribunal de prises. (Ibid., p. 1170.)
Estimant que l'interdiction absolue de la destruction des prises neutres par les belligérants aurait pour conséquence d'établir une situation d'infériorité marquante pour les puissances n'ayant pas de bases maritimes hors des côtes le da métropole et étant d'avis que tout accord international doit être fondé sur le principe de réciprocité et d'opportunité égale.
La Délégation Impériale de Russie soumet à la considération de la 4eme Commission le projet suivant d'une disposition se rapportant à la destruction des prises, disposition qui lui parast tenir compte de tous les intérêts en jeu :
La destruction d'une prise neutre est interdite à l'exception des cas où sa conservation pourrait compromettre la sécurité du navire capteur ou le succès de ses opérations. Le commandant du navire capteur ne peut user du droit de destruction qu'avec la plus grande réserve et doit avoir soin de transborder préalablement les hommes et, autant que faire se pourra, le chargement et en tous cas, de conserver tous les papiers de bord et autres éléments nécessaires pour permettre le jugement de la prise ainsi que, le cas échéant, l'éstablissement des indemnités à attribuer aux neutres.
Il est bien entendu qu'en cas de saisie ou destruction des prises neutres reconnues illégales par la Cour des Prises ou par les autorités compétentes, les intéressés ont le droit à une action en dommages-intérêts. (Ibid., p. 1170.)