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by writers on international law and in discussion at the Second Peace Conference that this right would extend to a case in which the captor was merely unable to spare a prize crew to take the vessel into one of his own ports without unduly diminishing his fighting force. Great Britain, on her part, has always held that in case of a neutral ship or in case of doubt as to nationality, if the prize can not be brought in, she should be dismissed, and that no military necessity can justify to the neutral owner the destruction of his ship without due process of a prize court. In the few recorded cases where in past times neutral prizes have been so destroyed by English captors the court decreed full compensation as due of right to the owners for the wrong done to them. At the Second Peace Conference Great Britain endeavored unsuccessfully to obtain general recognition for the rule that destruction of neutral prizes should in all circumstances be forbidden. The result of the discussions at that conference has been to show that there is practically no prospect of this contention being accepted in its entirety, and it must be admitted that while authority can be quoted in its support from textbooks and from British cases, there is a large body of opinion among writers on international law that although in principle a neutral ship should in every case be brought in or released, circumstances might arise in which its immediate destruction would be justified.
29. The matter is clearly one of much importance to neutral traders, and its importance is illustrated and accentuated by Russian action and Russian decisions during the recent RussoJapanese War, when, as it appeared to His Majesty's Government, neutral vessels were destroyed without justification, but the legitimacy of such destruction was sustained by the Russian prize courts. It is therefore very desirable that some agreement should, if possible. be come to at the forthcoming conference which would afford a l'eal check on belligerents in this respect. The way to an agreement might perhaps be found by proceeding on the lines of an affirmation of the general principle that neutral prizes must not be destroyed before adjudication, followed by a precise statenent of the conditions on which alone a departure from the principle could be allowed in exceptional circumstances. These conditions would have to be so framed as to safeguard the rights and interests of neutrals in as effective a manner as possible.
30. His Majesty's Government can not admit the contention that inability of the captor to spare a prize crew would suffice to justify destruction. Such an admission would probably be held to authorize the destruction of neutral prizes in the majority of cases where the captor had not a port of his own near to the place of capture. It is to be expected that the duty of intercept. ing merchant vessels for visit and examination will often be British Instructions, 1908.
intrusted to vessels of great speed and considerable offensive but small defensive powers, and unable conveniently to carry crews larger than requisite for the ordinary duties of the vessel. Such vessels would seldom be able to spare a sufficient number of men to form prize crews, and they would therefore frequently be in the position of not being able to send in a prize without weakening their fighting force, and thus, as it might be argued, affecting their safety and the success of their operations. No doubt this danger is to some extent qualified by the fact that it would be difficult for such vessels to accommodate the passengers and crew of the prize, iind unless they were able to do this, their only course would be to take the prize into port under their guns, which would be almost impracticable if the port was at some distance from the place of capture. Clearly the crew and passengers on board a neutral vessel, which may perhaps include women and children, ought not to be exposed to the hardships and risks which would arise if they were to remain for any length of time on board a belligerent man-of-war. Such a ship might, while these persons were still on board, be in action with an enemy, and nothing short of an altogether imperative necessity could justify a belligerent in exposing them to such a peril.
31. The conditions which His Majesty's Government consider might fairly be attached to a recognition on their part of the right to sink neutral prizes would be that the emergency should be justified by an imperative military necessity of which the prize •courts, and ultimately the international court, should be the judge, and that the crew and passengers must not, whilst on board a belligerent vessel, be exposed to the perils of a naval engagement. An effort should be made to secure the adoption by the conference of the view that inability to spare a prize crew, or the mere remoteness of a convenient national port, does not constitute a military necessity which would justify the sinking of a neutral prize. An agreement to this effect would gain enormously in value if it were also stipulated that in all cases where a neutral ship is sunk before adjudication in a prize court, the owners should be entitled to full compensation, altogether apart from the question of the character of the traffic in which the ship was engaged.
32. When this subject was debated at the Second Peace Conference various suggestions were put forward from different quarters with a view to provide an alternative to destruction in cases where a vessel could not be brought into a national port. It is not improbable that some of those suggestions may be renewed on the present occasion. The principal proposal in this direction was that the captor should be permitted, when a prize has been captured at a long distance from any of his ports, to take her into a neutral port within reach, where she would be sequestrated pending the adjudication of the prize court. to which, meanwhile, the ship's papers and the necessary witnesses were to be sent as soon as practicable. His Majesty's Government have declined to accept article 23 of the convention signed at The Hague respecting the rights and duties of neutral powers in maritime war which authorizes this procedure. I am not now in a position to say what view His Majesty's Government might have taken as to the advisability of accepting the proposal with or without some modifications or restrictions had its advocates offered it as a compromise in return for which they would abandon the claim to sink neutral prizes. It was in this form that the proposal was originally put forward. In the end, however, the claim to sink was maintained, and the alternative suggestion was ultimately set up as an additional stipulation. In these circumstances His Majesty's Government did not feel justified in making the double concession involved in recognizing the general validity of practices which are clearly open to grave objections. I have already indicated the readiness of His Majesty's Government to consider how and to what extent those objections might be overcome as regards the destruction of neutral prizes. I do not, however, wish at this stage to fetter you by declaring the conditions formulated in paragraph 31 of the present instructions to offer the only possible solution that could be entertained by His Majesty's Government. On the contrary, their genuine anxiety for some understanding in this matter will dispose them to approach any proposals for a reasonable compromise in an unbiased and conciliatory spirit. Without committing themselves to any definite decision, His Majesty's Government will accordingly be willing to listen and give due weight to any arguments and suggestions that may be brought forward in order to harmonize the opposing views by reopening the question of the sequestration of neutral prizes in neutral ports, although, as at present advised, they are not very hopeful that any system can be devised which would prove really satisfactory and acceptable to all parties.
33. A suggestion has been made that it should be open to the captor and the captain of the prize, by agreement, to arrange that any contraband cargo on board should be handed over or destroyed, or that some form of bail might be given by the captain of the prize, to which he would subsequently have to surrender in one of the captor's prize courts, and that if either of these courses were adopted, the ship might be allowed to proceed. It has been argued that the possibility of this alternative to bringing the prize in would render it unnecessary, in any contingency which may be contemplated as probable, to resort to its destruction. This suggestion has been carefully examined, but His Majesty's Government have so far been unable to satisfy themselves that effect could be given to it without giving rise to
Propositions, Naval Conference, 1908–9.
complications of a practical and legal character which would render the framing of the necessary rules a task of great difficulty. You are, however, authorized to take into consideration and discuss any definite proposal which may be brought forward relating to this subject. (International Naval Conference, British Parliamentary Papers, Miscellaneous, No. 4, 1909, p. 28.)
Propositions before the International Naval Conference.—The propositions submitted to the International Naval Conference in 1908 varied widely and were based on different theories as to neutral and belligerent rights as well as upon different ideas as to what might be practically advantageous to the respective naval powers.
Germany proposed : 24. Les navires et marchandises capturés doivent être conduits au siège d'un Tribunal de Prises du belligérant capteur pour y être jugés.
25. Par exception, les navires ou marchandises capturés peuvent être immergés, coulés, ou détruits autrement si leur conservation pourrait compromettre la sécurité du bâtiment de guerre ou le succès de ses opérations.
Avant la destruction du navire, son équipage devra être mis en sureté et tous les papiers du bord et telles autres pièces que les intéressés jugeront importantes pour l'établissement de la validité de la capture devront être transbordés sur le bâtiment de guerre.
26. Dans les cas prévus à l'alinéa 1er de l'article 25, on pourra également immerger ou détruire, avec le navire, les marchandises qui ne sont pas susceptibles de confiscation, et qui, en raison des circonstances, ne peuvent être transbordés sur le bâtiment de guerre. Dans ce cas, le propriétaire de ces marchandises aura droit à une indemnité. (Ibid., No. 5, p. 99.)
The United States renewed the instructions as found in the Naval War Code of 1900 :
ART. 46. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest suitable port, within the territorial jurisdiction of the United States, in which a prize court may take action.
Art. 49. The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel or its cargo is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court.
Art. 50. If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication-such as uuseaworthiness, 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, they may be destroyed. The imminent danger of recapture would justify destruction if there should be no doubt that the vessel was a proper prize. But in all such cases all of the papers and other testimony should be sent to the prize court, in order that a dcree may be duly entered.
Austria proposed that the destruction of neutral prizes should be reduced to the minimum.
(D) Les prises neutres ne sauraient être détruites par le capteur tant que le tribunal compétent ne les ait pas déclaré légales. L'application de ce principe pourra toute fois être subordonnée par les puissances signataires de la future convention à l'acceptation des prescriptions contenues dans la “ Convention concernant les droits et les devoirs des puissances neutres en ces de guerre maritime" au sujet de l'accès des prises neutres aux ports neutres. Mais même dans ce cas la destruction ne serait justifiée que par des raisons résultant de l'état de la mer, des conditions des navires capteurs et capturés pour naviguer ou du manque de combustibles ou vivres, et non pas de la proximité de l'ennemi ou du manque d'éléments militaires suffisants pour assurer la conduction au port correspondent. Ces derniers motifs et d'autres analogues impliquent que le capteur ne possède pas assez de moyens pour mener à terme la saisie. (Ibid., p. 100.)
France would make the destruction of neutral prize exceptional:
En principe, les prises doivent être amarinés, conduites dans un port national ou allié, et non pas détruites.
Toutefois, le capteur est autorisé à détruire toute prise dont la conservation compromettrait sa propre sécruité ou le succès de ses opérations, notamment s'il ne peut conserver la prise sans affaiblir son équipage.
Il ne doit être fait usage de ce droit de destruction qu'avec la plus grande réserve envers les navires ennemis, et a fortiori envers les navires neutres. La destruction d'un navire neutre doit être tout à fait exceptionnelle.
En cas de destruction, le capteur doit avoir soin de conserver tous les papiers de bord et autres éléments nécessaires pour permettre le jugement de la prise. (Ibid., p. 101.)
Great Britain maintained its earlier position: 1. Le devoir d'un belligérant capteur est d'amener, pour qu'il soit jugé par un tribunal des prises, tout navire marchand qu'il a saisi. Lorsque c'est impossible, ce dernier, si c'est un navire ennemi, peut être détruit après retrait de l'équipage et des papiers