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Admiral Sir Cyprian Bridge, in a letter to the Nation on January 28, 1911, says:
Much of the agitation against the Declaration of London is based on the pernicious belief that when we are forced into a war we shall achieve success by standing on the defensive. In a naval war, the only kind of war which will ever be serious for us, we shall have one objective, and one only, viz, the enemy's navy. We shall have to seek for that and attack it wherever we can get at it. This is the method to be adopted to keep the enemy so fully employed in defending himself that he will be unable to infest our ocean routes and, consequently, will be unable to capture or detain our own or friendly ships traversing those routes, or to send any considerable military expedition toward the shores of the United Kingdom and of any of our oversea territories.
In reply to a question in the House of Lords on March 8, 1911, Viscount Morley said:
In general terms I may say that the opinion of the Admiralty is that, in existing circumstances, the effect of the establishment of an International Court of Appeal and of the Declaration of London on this country as a belligerent in the conduct of naval operations would be small and inconsiderable. (The London Times, Mar. 9, 1911, p. 6.)
Mr. Bentwich's review of opinions.—Mr. Norman Bentwich in a book entitled, “The Declaration of London,” considers quite fully the various contentions in regard to the destruction of neutral vessels and says:
The Articles of the Declaration, though they are not as deterrent as might have been desired, are at least calculated to secure more respect for the neutral, and to place a larger measure of responsibility on the belligerent than was witnessed in the American Civil and the Russo-Japanese Wars. Of course there is no reason why Great Britain should depart from her present custom of not sinking neutral prizes, save in very exceptional circumstances; and our abundance of ports in every ocean makes it more feasible for our cruiser's than for those of other nations to bring their prizes in for adjudication. We are thus enabled to gain by adding the captured vessels to our marine and confiscating their cargo; and rith the new limitation on the right to destroy, our traders will be able to secure compensation in any case where their captured vessels would not have been liable to condemnation if they had been brought in for adjudication instead of being destroyed. The outcry against destruction of prizes is largely founded upon the fact that neutral vessels have been sunk by
their captors, which should not by the law of nations have been condemned at all. Now, the circumstances in which a neutral vessel is liable to condemnation are quite clearly laid down by the Declaration; and the obligation of the belligerent to pay full compensation to the neutral shipowner and cargo owner where a prize is sunk which is not legally liable to condemnation, and lastly, the power which the peutral will have, if the Declaration and the Prize Court Convention are ratified, of taking the question of the validity of the destruction to an International Tribunal which will have no prejudice in favor of the belligerent, form together a combination of safeguards which should prevent outrages upon neutral commerce such as the Russo-Japanese War produced, and should make the right of sinking prizes in future wars exceptional in fact as well as in theory (p. 98).
Application of Declaration of London to Situation III.-It is evident that the British merchant vessel would not be liable to condemnation because of the carriage of certain articles of contraband unless the amount was more than one-half by value, weight, volume, or freight (Art. 40) or unless the vessel were otherwise guilty, which is not implied in the situation.
ART. 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.
Article 49 of the Declaration of London, which as an exception says a neutral vessel may be destroyed, would not apply, and the commander of the United States fleet would not be justified in destroying the vessel on account of the amount of contraband on board.
The destruction of the British merchant vessel is not necessary on the ground that it would " involve danger to the ship of war.”
The question as to whether the entrance of the British merchant vessel into a port of State X would involve danger “ to the success of operations in which the belligerent ship of war is at the time engaged” may be raised. Certainly a case might arise in which the in-. formation prematurely given by a neutral merchantman that a belligerent fleet had been met would defeat the Application of Declaration.
97 plans of the fleet. The propriety of destruction, if otherwise legal, would in such case depend upon the proper interpretation of the clause of article 49, “ the operations in which she is at the time engaged. The interpretation of this clause, as set forth in the General Report of the International Naval Conference, is:
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 sometime afterwards.
The United States fleet is sailing to make an attack upon a fortified port of State X, but it is not engaged in this attack, indeed it may never make the attack. It may be met by a fleet of State X and may be driven away. It may receive orders to take other action. The war may come to an end before it reaches State X. Many other possible circumstances may arise which will make the contemplated attack upon the fortified port of State X impossible or unnecessary. The situation is not therefore such as to justify the destruction of the British merchantman on the ground that her preservation endangers the “success of the operations in which the belligerent vessel is at the time engaged.”
Article 54 gives the commander of the United States fleet certain rights as regards the contraband on board, provided the military necessity is such as contemplated in article 49.
ART. 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, 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.
It is generally regarded as justifiable for a commander to assume such control as may be necessary over wireless telegraph apparatus within the zone of actual operations, though as wireless is now regarded as a necessary part of a vessel's equipment, this apparatus should in general not be destroyed. The commander of the fleet can therefore take necessary measures to make certain that the neutral vessel will not use the wireless equipment in an unneutral manner which would endanger the success of his military operations.
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.
DELIVERY OF CONTRABAND AT SEA.
(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. A British vessel, having on board articles of the nature of absolute contraband and bound for a port of State X, is met at sea by a United States cruiser. It is evident from the date of sailing and from the vessel's papers that she did not know of the outbreak of hostilities. The commander of the cruiser is remote from a prize court and does not wish to take the merchant vessel in. He requests her master to deliver the contraband. The master declines.
What should the commander of the cruiser do?
In absence of exceptional necessity, and if the contraband is not voluntarily delivered, the commander of the cruiser should either send to a prize court or else release the neutral vessel.
Treaty provisions on delivery of contraband.—One of the earliest treaties providing for the delivery of contraband by a neutral master to a visiting belligerent is that of February 7/17, 1667/8, between Great Britain and the States-General of the United Netherlands.
XIV. If it should happen that any of the said French captains should make prize of a vessel laden with contraband goods, as hath been said, the said captains may not open nor break up the chests, mails, packs, bags, cask, or sell, or exchange, or otherwise alienate them, until they have landed them in the presence of the judges or officers of the Admiralty, and after an inventory by them made of the said goods found in the said vessels; unless the contraband goods making but a part of the lading, the master of the ship should be content to deliver the said contraband goods