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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 bcen
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 partics interested consider relevant for the purpose of deciding 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.-If 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 parties 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 owner 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 bas, 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 vessel 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 effected, 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 destruction 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 effected 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.)
Attitude Certain Commercial Bodies.
Attitude of some commercial bodies. The Declaration of London of February 26, 1909, has received in Great Britain very serious attention and the articles in regard to the destruction of neutral prizes have been the subject of much discussion. The chambers of commerce of Great Britain, apparently as a result of organized effort, have sent to the British Foreign Office various communications respecting the Declaration of London. To some of these communications the Foreign Secretary has replied.
The communication of the Glasgow Chamber of Commerce on August 10, 1910, so far as relates to the destruction of neutral prizes, is as follows:
The statement of the law on this subject is satisfactory, except as regards the exception contained in article 49. This article concedes the right of a belligerent warship to destroy the prize if the taking thereof into a port would involve danger to the safety of the warship or to the success of the operations in which the captor is engaged at the time. This is a serious departure from the practice hitherto recognized. The rule which has in the past been maintained by this country is that a neutral vessel must never be destroyed. If it is impossible to bring her within the jurisdiction of a court competent to adjudicate upon her, she must be immediately released. The only exception is that, if she can be sent into a neutral port and can be allowed to lie there, this may be done. Taking the exception contained in article 49 as it stands, no prize court-national or internationalwould seriously challenge the discretion of the captor in refereuce to danger to his vessel or to the success of his operations, and the provisions of article 51 are therefore of no value.
A question might no doubt be raised as to whether the neutral vessel was liable to condemnation, but this would require to be determined subsequently in a prize court or in the international court.
Experience has shown the disadvantage to which neutral owners are exposed in such circumstances, and while belligerents have claimed the right to destroy prizes the right has never been regarded favorably. The effect of article 49 is, however, to recognize and approve of the right, while the safeguards, it is submitted, are illusory.
Article 54 gives the captor right to destroy any goods liable to condemnation found on board a vessel not herself liable to condemnation under article 49. This is a further departure from the recognized rule and one which is of grave consequence to neutrals.
Keeping in view the enormous shipping trade of this country, it is submitted that the recognition of the rule in question would be a serious loss to British shippers and would impose upon them heavy burdens. (Correspondence respecting the Declaration of London, Parliamentary Papers, Miscellaneous, No. 4, 1910, Cd. 5418, p. 2.)
To this the Foreign Office replied on October 13, 1910:
18. Sir E. Grey is glad to find that on this subject the Chamber of Commerce regard the provisions of the Declaration of London as satisfactory, with the exception of article 49.
19. In articles 48 et sequentes, which govern the sinking of neutral vessels, very strict limitations are imposed on such action, while in all cases the onus of proof of the necessity of sinking the vessel lies on the captor. The right to sink neutral prizes has been claimed in the past by several Great Powers, and the modifications introduced by the Declaration place this country, when neutral, in a more favorable position than she has hitherto been, and, as the claim to sink neutral ships has always been opposed by Great Britain, her own rights as a belligerent are not affected, since, being ex hypothesi, already at war, she would not, except as a result of victory, be able to enforce her own views on her opponent. If the opponent sank a neutral merchantman the question would, in the absence of the Declaration, be dealt with by the two Governments directly concerned in accordance with their own views without any reference to the practice of Great Britain.
20. If, as the Chamber of Commerce assume, belligerents are likely to sink neutral vessels when captured, even though they may be liable to pay compensation under the Declaration, they will not refrain from doing so should the Declaration fail to be ratified.
21. The arguments which apply to the articles of the Declaration governing the destruction of neutral prizes apply equally to the 'destruction of goods liable to be condemned, the onus of proof falling upon the captor. (Ibid., p. 7.)
The Glasgow Chamber of Commerce sent another communication on November 14, 1910, saying:
Hitherto Great Britain has opposed the claim of a belligerent to sink neutral ships. Under article 49 of the Declaration, the right to do so is conceded to belligerents in certain circumstances. The Foreign Office apparently assumes that if the Declaration is not ratified and Great Britain is a neutral, she will submit to have the rule of international law on which she insists, víz, that neutral ships shall not be sunk but brought into port for adjudication, violated in her case, without taking steps to enforce its observance. If this is a correct interpretation of the position of