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CASE OF THE ALLANTON.
After two days, and before the case was decided by the local prize court, the authorities commenced to discharge her cargo, a proceeding suggestive of a determination to find or make grounds for condemning her. Whether this suspicion be just or not, as a matter of fact she was conden.ned. The judgment of the court was given on June 24, and four days after an appeal was lodged against it. (War and Neutrality in the Far East, 2d ed., p. 222.)
The decision of the Russian prize court at Vladivostok condemned the Allanton because (1) the vessel had brought contraband to a Japanese port on its outward journey, (2) various insignificant circumstances “and the characcer of the cargo (coal) convinces the court that the real destination of this hostile cargo was by no means Singapore, but a Japanese or Korean port, or even the enemy's fleet maneuvering in the sea," and (3) the cargo was enemy property.
It may be said that the general principle of international law is to the effect (1) that the offense of carriage of contraband is deposited with the goods, (2) that there must be ample evidence rather than suspicion of intent as to hostile destination, and (3) that enemy's goods, even though contraband when bound for enemy destination, are not such when under a neutral flag bona fide bound for a neutral destination.
The Vladivostok decision in regard to the Allanton was contested and an appeal was taken to the Admiralty council at St. Petersburg. On October 22, 1904, the decision of the prize court at Vladivostok was annulled by the Admiralty council and ship and cargo were ordered released.
Limitations visit and search.-It does not seem to be questioned that one limitation should be placed on visitation and search in general, viz: that issued by the United States in 1898:
The voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade.
To the above, article 34 of the Japanese regulations corresponds. Doubtless it would be well to add to the United States rule a clause which excepts vessels guilty of unneutral service.
a See p. 56.
It may also be said that pending the decision of a prize court the captured vessel's cargo should remain, so far as possible, in the same condition as at the time of capture.
Conclusion.—It may be safely said that at points outside of neutral jurisdiction in the Red Sea the right of visit and search may be exercised. It is, however, a right of war. Operations should be directed against the enemy, only. Therefore the exercise of the right of visitation and search should be exercised in such a manner as to interfere so little as possible with legitimate commerce of neutrals. If the papers are regular, only grave reasons would justify the breaking of the cargo and search of a great liner on its regular voyage, as this would be of great inconvenience and possible loss to neutral commerce. It is suggested that a system of neutral government inspection and guarantee be introduced to guard against the inconveniences of such interference.
The right of visitation and search is generally admitted. The question of its exercise in a given case, however, must often be one of policy.
Area of permissible visit and search.-(6) Should the right of visit and search be limited to a certain area in the neighborhood of the seat of war!
While the right of visit and search is generally recognized, there may arise a question as to the place of its exercise. There are certain restrictions well established in limitation of the method of search. In considering the question of place it is supposed that there is no question as to the propriety of the method.
Propositions have been made to the effect that the area of the field of possible exercise of the right of search should be circumscribed; that visit and search of neutral vessels should be permitted only within a certain distance of the seat of war or within a certain distance of the belligerent territory. It has been proposed to limit the exercise of the right of search to the area within the radius of 100 miles from the belligerent ports. Any attempt at limitation of area would seem to be action which would introduce new complications into the conduct of maritime warfare.
CONCLUSIONS ON VISIT AND SEARCH.
The difficulty of determining disputes in regard to distance would make such a restriction hard to enforce. The courts would not care to have such additional complications introduced into questions upon which they must decide.
The 100 mile radius would create a quasi blockaded area in which neutrals would be liable to the exercise of extended belligerent rights.
It would introduce new practices which would bear very heavily on neutral states, neighbors to belligerent states. It might easily happen and would often be the case that this limitation of area of the exercise of the right of search would bring about a restriction on the commerce to a given part of the neutral country which chanced to be within the area of search, or practically close by discrimination a neutral port.
It would work general hardship upon the neighboring neutral which would be unnecessary and would bring no commensurate advantage to the belligerent.
This limitation would restrict belligerent operations to a narrower field, which might in some respects be advantageous. Yet, visitation and search properly exercised may be but little onerous to the neutral. The limitation of area of visit and search would be very burdensome to the belligerent. There seems to be in general no reason for such limitation which in practice would introduce new difficulties in enforcement.
Conclusion as to limitation of area.-All the advantages of the proposed limitation of area may better be obtained through the more judicious exercise of the right and the more careful attention by neutrals to the proper documenting of their vessels.
General conclusions.(a) Denmark would be justified in visiting and for good reason in searching neutral vessels outside of neutral jurisdiction in the Red Sea.
(6) The area of the exercise of the right of visit and search should not be limited, but greater restrictions may justly be demanded against its exercise in an arbitrary and burdensome manner,
Should the destruction of captured vessels be allowed before adjudication by a prize court? If so, under what condition
Enemy vessels.--If there are controlling reasons why enemy vessels may not be sent in for adjudication, as unseaworthiness, 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 may be destroyed. The imminent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. But in all such cases all the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered.
Neutral vessels.-If a seized neutral vessel can not for any reason be brought into port for adjudication, it should be dismissed.
DISCUSSION AND NOTES.
Two kinds of prize.—Prize may be of two kinds-
The destruction of enemy property is a matter quite different from the destruction of neutral property. The destruction of an enemy vessel may involve the destruction of neutral property, and at the present time comparatively few cargoes belong wholly to citizens of a single state.
Cases involving the destruction of captures.-During the Revolutionary war captured vessels were regularly destroyed. During the war of 1812, also, it was the general practice to destroy captured enemy vessels; indeed, the
officers were instructed that unless their prizes were very valuable and near a friendly port, it will be imprudent and worse an useless to attempt to
end them in.” The Confederate cruisers habitually destroyed captures during the civil war of 1861. The ground of destruction was asserted to be the impossibility of taking these prizes to home ports for adjudication. The burning of the German vessels Ludwig and the Vorwarts by a French cruiser October 21, 1871, was upheld by the French courts.
The cases most frequently cited are those of the Acteon, in 1815 (2 Dodson's Admiralty Reports, p. 48), and the Felicity, in 1819 (ibid., p. 381). In both these instances the vessels were property of subjects of one of the belligerent states. They were sailing under license of the other belligerent. In the case of the Felicity the belligerent which had granted the license destroyed the vessel holding the license. The Felicity, which was destroyed, was a merchant ship of the United States sailing under a British license and destroyed by a British war vessel, but the license was not produced till the Felicity was already on fire.
Of this case Lord Stowell said:
Taking this vessel and cargo to be merely American the owners could have no right to complain of this act of hostility, for their property was liable to it in the character it bore at that period of enemy's property. There was no doubt that the Endymion had a full right to inflict it, if any grave call of public service required it. Regularly a captor is bound by the law of his own country, conforming to the general law of nations, to bring in for adjudication in order that it may be ascertained whether it be enemy's property; and that mistakes may not be committed by captors, in the eager pursuit of gain, by which injustice may be done to neutral subjects and national quarrels produced with the foreign states to which they belong. Here is a clear American vessel and cargo, alleged by the claimants themselves to be such, and consequently the property of enemies at that time. They share no inconvenience by not being brought in for the condemnation, which must have followed if it were mere American property; and the captors fully justify themselves to the law of their own country, which prescribes the bringing in, by showing that the immediate service in which they were engaged--that of watching the enemy's ship of war—the President, with intent to encounter her, though of inferior force, would not permit them to part with any of their own crew to carry her into a British port. Under this collision of duties nothing was left but to destroy her, for they could not, con