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OVER WHAT SHIPS EXERCISABLE.
6. These powers may be exercised over any Private Vessel, whatever may be her Nationality, but not over any Ship belonging to the Public Navy of a friendly Power.
7. No Vessel is exempt from the exercise of these powers on the ground that she is under the Convoy of a Neutral Public Ship.
REASONS FOR EXERCISING.
8. The power of Visit should be exercised only over Vessels which the Commander of Her Majesty's Cruiser has some reason to believe are liable to Detention, either as being the property of Enemies or as being engaged in a prohibited trade or service.
9. The Vessels thus liable to Detention are (subject to the explanations and exceptions contained in Chapters III-XI).
I. Any Enemy Vessel, irrespectively of her destination or cargo. (See Chapter III.)
II. Any British Vessel, or Vessel of an Ally, trading with, or acting in the service of, the Enemy. (See Chapter IV.)
III. Any Neutral Vessel engaged in-
Except in these three cases, to which, under certain circumstances, others (see Chapters IX-XI) may possibly be added by special instructions, Neutral Vessels are free to trade with the enemy.
10. Any Vessel is also liable to Detention, irrespectively of her national character or the trade in which she is engaged, for
(1) Resistance to Visit or Search. (See Chapter XIII.)
PROCEDURE TO BE OBSERVED IN EXERCISING.
11. Visit, Search, and Detention must be exercised in accordance with the established course of Procedure. (See Chapters XV-XIX.)
SENDING IN FOR ADJUDICATION.
12. When a Vessel has been detained she should be sent, with the accustomed precautions, to a Port of Adjudication; and upon her arrival there proceedings should be commenced with a view to her being duly condemned by a Prize Court. (See Chapters XX-XXII.)
RESPONSIBILITY FOR EXERCISE OF POWERS.
13. In the exercise of the powers of Visit, Search, and Detention, great discretion will be required. The war has to be prosecuted with zeal, but at the same time care must be taken not to subject to any
BRITISH REGULATIONS ON SEARCH.
vexatious interference the commerce of Great Britain or her Allies, or of any other nation not engaged in the war.
14. The Commander should be careful on all occasions to observe strict propriety of conduct toward the masters and Crews of Vessels with whom, in the exercise of these powers, he may be brought into contact, and should impress the same duty upon the Officers and men under his command.
15. If a Commander in the exercise of these powers detain a Vessel without probable cause, or do an act not sanctioned by international law or otherwise unwarrantable, he will incur the displeasure of Her Majesty's Government, and will also be personally liable for damages.
16. The Commander is likewise responsible in damages for the acts of all under his command, whether he himself is present or absent; and this responsibility is not shifted upon his Superior Officer (as the Commander of the Squadron or of the Fleet), unless such Superior Officer be actually present and cooperating, or has issued express orders for the doing of the act in question.a
17. Even although the Vessel and Cargo be condemned as Lawful Prize, the Captors may be deprived by the Prize Court of all interest in the same, if in relation to the Vessel or her Cargo, or any person on board, they have committed any offense against the Law of Nations, or against the Naval Prize Act, 1864, or against any Act relating to Naval Discipline, or against any order in Council or Royal Proclamation, or any breach of Her Majesty's Instructions relating to Prize, or any act of Disobedience to the Orders of the Lords of the Admiralty, or to the Command of a Superior Officer. b
Great Britain found in 1900, during the South African war, that visit and search exercised without greatest discretion might be very annoying to the belligerent as well as for the neutral, and the admiralty drafted the following instruction:
Owing to the extreme difficulty of proving, at ports so distant from South Africa as Aden and Perim, the real destination of contraband of war carried by ships calling at or passing those ports, the Senior Naval Officer, Aden, is to be directed to discontinue searching such vessels, confining himself to reporting to the Commander in chief, Cape, the names and dates of clearance of suspected ships.
Chapter V of the Japanese regulations relating to Capture at Sea gives a late statement of the “grounds for visit, search, and seizure.” Its provisions are as follows:
Art. XXXII. Any private vessel regarding which there is suspicion which would justify her capture shall be visited and searched, no matter of what national character she is.
a Mentor, 1 C. Robi, 179; Eleanor, 2 Wheat., 345.
Art. XXXIII. A neutral vessel under convoy of a war vessel of her country shall not be visited nor searched if the commanding officer of the convoying war vessel presents a declaration signed by himself, stating that there is on board the vessel no person, document, or goods that are contraband of war, and that all the ship's papers are perfect, and stating also the last port which the vessel left and her destination. In case of grave suspicion, however, this rule does not apply.
Art. XXXIV. In visiting or searching a neutral mail ship, if the mail officer of the neutral country on board the ship swears, in a written document, that there are no contraband papers in certain mail bags, those mail bags shall not be searched. In case of grave suspicion, however, this rule does not apply.
Art. XXXV. All enemy vessels shall be captured. Vessels belonging to one of the following categories, however, shall be exempted from capture if it is clear that they are employed solely for the industry or undertaking for which they are intended:
1. Vessels employed for coast fishery.
2. Vessels making voyage for scientific, philanthropic, or religious purposes.
3. Light-house vessels and tenders.
Art. XXXVI. Any vessel of the Empire which carries on commerce with the enemy State or its subjects, or makes voyage with such intention, shall be captured, unless such vessel has no knowledge of the outbreak of war or has permission from the Imperial Government.
ART. XXXVII. Any vessel that comes under one of the following categories shall be captured, no matter of what national character it is:
1. Vessels that carry persons, papers, or goods that are contraband of war.
2. Vessels that carry no ship's papers, or have willfully mutilated or thrown them away, or hidden them, or that produce false papers.
3. Vessels that have violated a blockade.
4. Vessels that are deemed to have been fitted out for the enemy's military service.
5. Vessels that engage in scouting or carry information in the interest of the enemy, or are deemed clearly guilty of any other act to assist the enemy.
6. Vessels that oppose visitation or search. 7. Vessels voyaging under the convoy of an enemy's man of war.
ART. XXXVIII. Vessels carrying contraband persons, papers, or goods, but which do not know the outbreak of war, shall be exempt from capture.
The fact that the master of a vessel does not know the persons, papers, or goods on board to be contraband of war, or that he took them on board under compulsion, shall not exempt the vessel from capture.
Art. XXXIX. Vessels that come under one of the following cases may be captured, no matter of what national character they are:
1. When a vessel does not produce the necessary papers or they are not kept in good order.
2. When there are contradictions among the ship's papers or between the statements of the master and the ship's papers.
3. Besides the above cases when, as the result of visitation or search, there is sufficient suspicion to justify capture according to Articles from XXXV to XXXVII.
In the treaty between the United States and Italy of February 26, 1871, there is provision for the regulation of visit and search.
ARTICLE XVIII. In order to prevent all kinds of disorder in the visiting and examination of the ships and cargoes of both the contracting parties on the high seas, they have agreed mutually that whenever a vessel of war shall meet with a vessel not of war of the other contracting party the first shall remain at a convenient distance and may send its boat with two or three men only in order to execute the said examination of the papers concerning the ownership and cargo of the vessel without causing the least extortion, violence, or ill treatment, and it is expressly agreed that the unarmed party shall in no case be required to go on board the examining vessel for the purpose of exhibiting his papers, or for any other purpose whatever.
ARTICLE XIX. It is agreed that the stipulations contained in the present treaty relative to the visiting and examining of a vessel shall apply only to those which sail without a convoy; and when said vessels shall be under convoy the verbal declaration of the commander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries, and, when bound to an enemy's port, that they have no contraband goods on board shall be sufficient. (Compilation of Treaties in Force, p. 455.)
The principles were well set forth by Count von Bülow in a speech in the Reichstag on January 19, 1900. He said:
We recognize the rights which the law of nations actually concedes to belligerents with regard to neutral vessels and neutral trade and traffic. We do not ignore the duties imposed by a state of war upon the shipowners, merchants, and vessels of a neutral State, but we require of the belligerents that they shall not extend the powers they possess in this respect beyond the strict necessities of the war. We demand of the belligerents that they shall respect the inalienable rights of legitimate neutral commerce, and we require above all things that the right of search and of the eventual capture of neutral ships and goods shall be exercised by the belligerents in a manner conformable to the maintenance of neutral commerce, and of the relations of neutrality existing between friendly and civilized nations.” (Parliamentary Papers, Africa, No. 1 (1900), p. 25.)
Some recent opinions of the United States Court of Claims set forth the nature of the right:
The right of visitation and search of neutral vessels at sea is a belligerent right, essential to the exercise of the right of capturing enemy's property, contraband of war, and vessels committing a breach of blockade. It is essential, in order to determine whether the ships themselves are neutral and documented as such, according to the law of nations and treaties, even if the right of capturing enemy's property be ever so strictly limited. (The Jane, 37 U. S. Court of Claims, 24, Dec. 2, 1901.)
In the case of the Nancy it was stated thatThe right of search is preliminary to the right of seizure, and the right of seizure depends upon the result of the exercise of the right of search.
even though there may be a legal seizure, it is the duty of the seizing vessel to follow such legal seizure by affording to the captured party all facilities of defense to which he may be entitled. (The Nancy, 37 U. S. Court of Claims, 401.)
In the case of the Jane mentioned above it is also further stated that
The object of searching ostensible neutrals is to get evidence as to the fact of neutrality, and if the cargo be not enemy's property; or if neutral, whether they are carrying contrabrand; or whether the vegsels are in the service of the enemy in the way of carrying military persons or dispatches or sailing in prosecution of an intent to break blockade.
A case showing an evident intent to go beyond the regular rules in regard to visit, and search, and seizure occurred during the Russo-Japanese war of 1904–5. This was the case of the Allanton.
Mr. Lawrence states the case of the Allanton as follows: On January 5 of the present year (1904) the Allanton, a British vessel registered at Glasgow, and owned by Mr. W. R. Rea, of Belfast, was chartered to take a cargo of Cardiff coal to Hongkong or Sasebo. On February 21 she left Cardiff. At Gibraltar the captain received orders by telegraph on February 24 to go round the Cape instead of through the Suez Canal. On May 10 he reached Hongkong and there found instructions to proceed to Sasebo. Having discharged his cargo in the latter port he went to Muroran, in the island of Hokkaido, where the ship was chartered by a Japanese company to carry a fresh cargo of coal to Singapore. It was consigned to the British firm of Paterson, Simons & Co., and was a part of a large quantity of 50,000 tons which they had agreed to take during the present year. The Allanton left Muroran on June 13, and three days later was captured by a Russian squadron near the Okishima Islands. A prize crew was put on board her and she was taken to Vladivostok, where she arrived on June 19.