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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
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 why 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 his 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.