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hibiting destruction save in very exceptional circumstances, though expressing a willingness to consider any solution that might be offered. (Ibid., pp. 272–276.)
The Japanese delegation assumed a position opposed to destruction:
La Délégation du Japon estime que les prises neutres doivent toujours être conduites dans un port de prises; autrement elles doivent être relâchées. Dans le cas de destruction d'un navire de commerce ennemi, le propriétaire des marchandises neutres à bord doit, en principe, être indemnisé à l'exception des cas suivants :
1. Lorsque le navire est au service ou sous le contrôle de l'ennemi;
2. Lorsque le navire résiste à la visite ou à la capture, ou tente d'y échaper par la fuite. (Ibid., p. 276.)
Italy again raised the question of sequestration in a neutral port as a solution:
La Délégation italienne tient à déclarer qu'elle est prête à accepter, en principe, la règle qui défend, en tout cas, la destruction des prises neutres, comme celle qui sauvegarde le mieux les droits des tiers et la sécurité du commerce. Mais elle est d'avis que cette règle ne saurait être admise et recommandée à tous les États qu'à la condition qu'on admette généralement, en même temps, le principe que les prises pourront, en tout cas, être amenées dans un port neutre, pour y être gardées sous séquestre, en attendant la décision du tribunal selon la disposition insérée à cet égard à l'article 23, premier alinéa, de la Convention de la Haye concernant des droits et les devoirs des puissances neutres en cas de guerre maritime. L'abandon du droit de détruire les prises neutres devrait, par conséquent, être subordonné à l'acceptation simultanée de ce principe comme faisant partie du droit international en vigueur. (Ibid., p. 277.)
The Austrian delegation adopted the point of view of the German delegation.
The Netherlands, indorsing British position, said:
La Délégation des Pays-Bas, tout en se conformant à l'opinion émise par elle à la Deuxième Conférence de la Paix, tient à constater que, dans un but de conciliation, elle est maintenant prête à accepter la solution émise par la Délégation britannique que seulement en cas très exceptionnels la destruction des prises · serait permise. Il serait peut-être possible de dresser une liste des cas où il serait permis au capteur de détruire. (Ibid., p. 277.)
General Report, Naval Conference.
After many interchanges of views and attempts to formulate satisfactory rules the International Naval Conference drew up and approved articles 48 to 54 of the Declaration of London.
Declaration of London on destruction of neutral prizes.—The results of the work of the International Naval Conference upon the subject of the destruction of neutral prizes which was so fully considered may be best shown in the chapter of the General Report of the Conference relating to this topic.
DESTRUCTION OF NEUTRAL PRIZES.
The destruction of neutral prizes was a subject in the program of the Second Peace Conference, and at that time it was not possible to establish a rule. It reappeared in the program of the present conference, and this time agreement has been found possible. There is reason for congratulation on such a result, which bears witness to the sincere desire of all parties for an understanding. It has here been shown once more that positive and conflicting rules do not always correspond to things as they are, and that if there be willingness to descend to details, and to arrive at: the precise applications, there will often be al. most the same method of action, although the opinions advanced. appeared to be entirely in conflict. To reach an agreement, it is first of all necessary that there should be a thorough understanding, which is not always the case. Thus it has become evident that those who declared for the right to destroy neutral prizes did not pretend to use this right wantonly and at every opportunity, but only by way of exception; and that, on the other hand, those who maintained the principle of prohibition of destruction admitted that the principle must give way in excep. tional cases. It then became a question of agreeing on those exceptional cases to which, according to both views, the right to destroy should be confined. This was not all: there was need also for a guaranty against abuses in the exercise of this right; arbitrariness in the determination of these exceptional cases must be limited by imposing some real responsibility upon the captor. It was at this stage that a new idea was introduced in the making of the rule in this matter, thanks to which it was possible to arrive at an agreement. The possibility of intervention by a court of justice will make the captor reflect at the same
time that it will secure reparation in cases where there was no reason for the destruction.
Such is the general spirit of the provisions of this chapter.
ABTICLE 48.-A neutral vessel which has been captured is not to
be destroyed by the captor, but must be taken into such port as is proper for the determination there of all questions concerning the validity of the capture.
The general principle is very simple. A neutral vessel which has been seized may not be destroyed by the captor; that may be admitted by everyone, whatever view is taken as to the effect produced by the capture. The vessel must be taken into a port for the determination there as to the validity of the prize. A prize crew will or will not be put on board, according to circumstances.
ARTICLE 49.-As an exception, a neutral vessel which has been
captured by a belligerent ship, and which would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the ship of war or to the success of the operations in which she is at the time engaged.
The first condition in order that a captured vessel may be destroyed is that she should be liable to condemnation upon the facts of the case. If the captor can not even hope to obtain the condemnation of the vessel, how can he lay claim to destroy her ?
The second condition is that the observance of the general principle would naturally involve danger to the warship or to the success of the operations in which she is engaged at the time. This is the regulation on which agreement was reached after various tentative propositions. It was understood that compromettre la sécurité was synonymous with mettre en danger le navire, and might be translated into English by, involve danger. It is, of course, the situation at the moment when the destruction takes place which must be considered in order to decide whether the conditions are or are not fulfilled. A danger which did not exist at the actual moment of the capture may have appeared some time afterwards.
ARTICLE 50.—Before such destruction, the persons on board must
be placed in safety, and all the ship's papers and other documents which the parties interested consider relevant for the purpose of de on the validity of the capture must be taken on board the ship of war.
This provision makes known the precautions to be taken in the interests of the persons and of the administration of justice.
General Report, Naval Conference.
ARTICLE 51.-A captor who has destroyed a neutral vessel must,
prior to any decision respecting the validity of the capture, prove as a fact that he only acted in the face of such an exceptional necessity as is contemplated in Article 49. If he fails to do so, he is bound to indemnify the parties interested, and no investigation is to be made as to whether or not the capture was valid.
This provision gives a guaranty against the arbitrary destruction of prizes by establishing a real responsibility of the captor who has carried out the destruction. The captor must actually, before any decision respecting the validity of the prize, prove that he was really in such an exceptional situation as was specified. This proof must be established in a manner to meet the opposition of the neutral, who, if not satisfied with the decision of the national prize court, may. take his case before the international court. This proof is, therefore, a condition precedent which the captor must fulfill. If he does not do this, he must compensate those interested in the vessel and the cargo, without any investigation as to whether the capture was or was not valid. ACcordingly there is a positive sanction of the obligation not to destroy a prize except in the specified cases; this sanction is a fine inflicted on the captor. If, on the other hand, this proof is established, the prize procedure follows the usual course; if the prize is declared valid, no compensation is due; if it is declared void, those interested have a right to be compensated. Resort to the international court can be had only after the decision of the prize court has been rendered on the whole matter, and not immediately after the preliminary question has been decided.
ARTICLE 52.-1f the capture of a neutral vessel is subsequently
held to be invalid, though the act of destruction has been held to have been justifiable, the captor must pay compensation to the partics interested, in place of the restitution to which they would have been entitled.
ARTICLE 53.-If neutral goods not liable to condemnation have been
destroyed with the vessel, the ouner of such goods is entitled to compensation.
If a vessel which has been destroyed carried neutral goods not liable to condemnation, the owner of such goods has, in every case, a right to compensation; that is to say, without having to distinguish as to whether the destruction was or was not justified. This is equitable and is a further guarantee against arbitrary destruction.
ARTICLE 54.—The captor has the right to require the delivery, or
to proceed himself to the destruction of goods liable to condemnation found on board a vessel not herself liable to condemnation, provided that the circumstances are such as would. under Article 49 justify the destruction of a vessel liable to condemnation. The captor must enter in the log book of the lessel stopped the articles handed over or destroyed, and must procure from the master duly certified copies of all relevant papers. When the delivery, or the destruction has been effccted, and the formalities complied with, the master must be allowed to continue his voyage. The provisions of articles 51 and 52 respecting the obligations of a captor who has destroyed a neutral vessel are applicable.
A cruiser encounters a neutral merchant vessel carrying contraband in a proportion less than that specified in article 40. The captain of the cruiser may put a prize crew on board the vessel and take her into a port for adjudication. He may, in conformity with the provisions of article 44, accept the delivery of the contraband which is offered to him by the vessel stopped. But what is to happen if neither of these solutions is reached? The vessel stopped does not offer to deliver the contraband, and the cruiser is not in a position to take the vessel into one of her ports. Is the cruiser obliged to let the neutral vessel go with the contraband on board? This has seemed excessive, at least in certain exceptional circumstances. These are in fact the same which would have justified the destruction of the vessel, if she had been liable to condemnation. In such a case the cruiser may require the delivery, or proceed to the destruction, of the goods liable to condemnation. The reasons which warrant the de. struction of the vessel would justify the destruction of the contraband goods, the more so as the considerations of humanity which may be invoked in case of the destruction of a vessel do not here apply. Against an arbitrary demand by the cruiser there are the same guarantees as those which made it possible to recognize the right to destroy the vessel. The captor must, as a condition precedent, prove that he really found himself in the exceptional circumstances specified; failing this, he is penalized to the value of the goods delivered or destroyed, without investigation as to whether they were or were not contraband.
The regulation prescribes certain formalities which are necessary to establish the facts of the case and to make the prize court free to adjudicate.
Of course, when once the delivery of the goods has been eflected or their destruction has taken place, and the formalities have been carried out, the vessel which has been stopped must be left free to continue her voyage. (International Law Topics, Naval War College, 1909, p. 111.)