« ПредыдущаяПродолжить »
sistently with their general duty to their own country or, indeed, its express injunctions, permit enemy's property to sail away unmolested. If impossible to bring in their next duty is to destroy enemy's property. Where doubtful whether enemy's property and impossible to bring in, no such obligation arises, and the safe and proper course is to dismiss. Where it is neutral the act of destruction can not be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own state; to the neutral it can only be justified, under any such circumstances, by a full restitution in value. These are rules so clear in principle and established in practice that they require neither reasoning nor precedent to illustrate or support them.
Before the time of Sir William Scott it had been generally regarded as legitimate and as doing the neutral no injustice to destroy his captured property, provided full remuneration was paid. Lord Stowell's later decisions seem to incline far more toward absolute prohibition of destruction of neutral vessels.
In the case of the Dos Hermanos, in 1825, Mr. Chief Justice Marshall delivered the opinion of the court, thatwhatever might have been the ancient doctrine in England in respect to capture in war, it is now clearly established in that kingdom that all captures jure belli are made for the Government, and that no title of prize can be acquired but by the public acts of the Government conferring rights on the captors. (10 Wheaton's U. S. Supreme Court Reports, 306.)
In the case of the Leucade, in 1855, Dr. Lushington stated:
The general rule, therefore, is that if a ship under neutral colors be not brought to a competent court for adjudication the claimants are, as against the captor, entitled to costs and damages. Indeed, if the captor doubt his power to bring a neutral vessel to adjudication it is his duty to release her.
Regulations in regard to destruction before adjudication.-In the British Manual of Naval Prize Law, edited by Professor Holland in 1888, it is provided
303. In either of the following cases:
(1) If the Surveying Officers report the Vessel not to be in a condition to be sent in to any port for Adjudication; or
(2) If the Commander is unable to spare a Prize Crew to navigate the Vessel to a Port of Adjudication the Commander should release the Vessel and Cargo without ransom, unless there is clear proof that she belongs to the Enemy.
304. But if in either of these cases there be clear proof that the BRITISH AND JAPANESE REGULATIONS.
Vessel belongs to the Enemy, the Commander should remove her Crew and papers, and, if possible, her Cargo, and then destroy the Vessel. The Crew and the Cargo (if saved) should then be forwarded to a proper Port of Adjudication, in charge of a Prize Officer, together with the Vessel's Papers and the necessary Affidavits. Among the Affidavits should be one, to be made by the Prize Officer, exhibiting the evidence that the Vessel belonged to the Enemy, and the facts which rendered it impracticable to send her in for Adjudication (p. 86).
In an address on April 12, 1905, Professor Holland refers to this rule of the Admiralty Manual of 1888. He says:
While it is, on principle, most undesirable that neutral property should be exposed to destruction without inquiry, cases may occasionally occur in which a belligerent could hardly be expected to permit the escape of such property, though he is unable to send it in for adjudication. The contrary opinion is, I venture to think, largely derived from a reliance upon detached paragraphs in one of Lord Stowell's judgments on the subject-judgments which, taken together, show little more than that, in his view, no plea of national interest will bar the claim of a neutral owner to be fully compensated for the value of his property when it has been destroyed without judicial proof of its noxious character. “Where doubtful whether enemy's property, and impossible to bring in, the safe and proper course,” says Lord Stowell, “is to dismiss." The Admiralty Manual of 1888 accordingly directs commanders who are unable to send in their prizes to “release the vessel and cargo without ransom, unless there is clear proof that she belongs to the enemy.” This indulgence can hardly, however, be proclaimed as an established rule of international law, in the face of the fact that the sinking of neutral prizes is under certain circumstances permitted by the prize codes, not only of Russia, but also as of such powers as France, the United States, and Japan (1904). (83 Fortnightly Review, 802.)
The Japanese regulations in the Chino-Japanese war of 1894 provide in article 22 that
If the enemy's vessels are unfit to be sent to a port, as stated in Article 18, the commander should break up the vessels, after taking the crew, the ship's papers, and the cargo, if possible, into his ship. The crew, the ship's papers, and the cargo should be sent to a port, as stated in Article 18. (Takahashi, International Law During the Chino-Japanese War, p. 183.)
The Japanese regulations of March 7, 1904, are general in character. Article XCI provides:
In the following cases, and when it is unavoidable, the captain of the man-of-war may destroy a captured vessel, or dispose of her ac
cording to the exigency of the occasion. But before so destroying or disposing of her he shall transship all persons on board and, as far as possible, the cargo also, and shall preserve the ship's papers and all other documents required for judicial examination:
1. When the captured vessel is in very bad condition and can not be navigated on account of the heavy sea.
2. When there is apprehension that the vessel may be recaptured by the enemy.
3. When the man-of-war can not man the prize without so reducing her own complement as to endanger her safety.
The United States instructions to blockading vessels and cruisers in 1898 does not specifically restrict destruction to enemy vessels. In article 28 is the provision that,
If there are controlling reasons why 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 they 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. (General Order 492, June 20, 1898.)
According to the treaty stipulations between the United States and Italy of February 26, 1871, it would not be a light matter for a United States commander to destroy an Italian vessel. Article XX provides:
In order effectually to provide for the security of the citizens and subjects of the contracting parties, it is agreed between them that all commanders of ships of war of each party, respectively, shall be strictly enjoined to forbear from doing any damage to, or committing any outrage against, the citizens or subjects of the other or against their vessels or property; and if the said commanders shall act contrary to this stipulation they shall be severely punished and made answerable in their persons and estates for the satisfaction and reparation of said damages of whatever nature they may be. (Conipilation of Treaties in Force, p. 455.)
The Russian rules in regard to maritime prizes, of March 27, 1895, approved by the admiralty board September 20, 1900, allow the destruction of captured vessels under certain circumstances.
ART. 21. Dans les cas extraordinaires où la conservation du bâtiment capturé sera reconnue impossible par suite du mauvais état dans lequel il se trouve, de son peu de valeur, du danger qu'il court d'être repris par l'ennemi, du fait que les ports sont trop éloignés ou bloqués, qu'il constitue un embarras pour le bâtiment capteur ou un obstacle au
succes de ses opérations, le commandant est autorisé, sous sa responsabilité personnelle, à bruler ou à couler sa capture, après avoir transbordé les hommes et antant que possible le chargement et avoir pris les mesures voulues pour conserver les papiers et objets qui se trouvent à bord et qui pourraient être nécessaires pour éclairer l'affaire lors qu'elle sera examinée conformément à la procédure des prises. Le commandant dresse, d'après l'article 21 du code maritime, procèsverbal des circonstances qui ont motivé la destruction du bâtiment capturé.
Article 10 of the Russian instructions of 1901 provides that
In the following and other similar extraordinary cases the commander of the imperial cruiser has the right to burn or eink a detained vessel after having previously taken therefrom the crew, and, as far as possible, all or part of the cargo thereon, as well as all documents and objects that may be essential in elucidating the matter in the prize court:
(1) When it is impossible to preserve the detained vessel on account of its bad condition.
(2) When the danger is imminent that the vessel will be recaptured by the enemy.
(3) When the detained vessel is of extremely little value, and its conduct into port requires too much waste of time and coal.
(4) When the conducting of the vessel into port appears difficult owing to the remoteness of the port or a blockade thereof.
(5) When the conducting of the detained vessel might interfere with the success of the naval war operations of the imperial cruiser or threaten it with danger.
The commander prepares a memorandum under his signature and that of all the officers concerning the circumstances which have led him to destroy the detained vessel, which memorandum he transmits to the authorities at the earliest possible moment.
Note. — Although Article 21 of the Regulations on Maritime Prizes of 1895 permits a detained vessel to be burned or sunk “on the personal responsibility of the commander,” nevertheless the latter by no means assumes such responsibility when the detained vessel is actually subject to confiscation as a prize, and the extraordinary circumstances in which the imperial vessel finds itself absolutely demand the destruction of the detained vessel. (U. S. Foreign Relations, 1904, p. 752.)
Russian instructions of August 5, 1905, were to the effect that,
Russian vessels were not to sink neutral merchantmen with contraband on board in the future, except in case of direst necessity, but in cases of emergency to send prizes into neutral ports.
The Institute of International Law at Turin in 1882 provided for the destruction of an enemy's vessel
(1) If unseaworthy.
(3) If there is danger from a superior force of the enemy.
(4) If the captor can not without danger spare a prize
(5) If the port to which the vessel should be conducted is too remote. (Annuaire 1883, p. 221.)
From these discussions it seems to be evident that the destruction of an enemy vessel is permitted under certain restrictions.
Neutral restriction of entrance of prize.—The hospitality once accorded to prize has gradually lessened. Formerly prizes were admitted to neutral ports, but in recent years neutrality proclamations have often forbidden the privilege. The British proclamation of 1898 says:
Armed ships of either belligerent are interdicted from carrying prizes made by them into the ports, harbors, roadsteads, or waters of the United Kingdom, the Isle of Man, the Channel Islands, or any of Her Majesty's colonies or possessions abroad.
An identical position was taken on February 10, 1904, in consequence of the Russo-Japanese war.
The regulations for the Netherlands Indies during the Russo-Japanese war of 1904–5 provide that
Warships or privateers shall not be admitted to the harbors or outlets of the Netherlands when accompanied by prizes, except in the case of distress or want of provisions. As soon as the reason for their entry is passed they shall leave immediately. They shall not ship more provisions than is necessary for them to reach the nearest harbor of the country to which they belong, or that of one of their allies in the war. So long as they keep their prizes coal shall not be supplied them. When warships pursued by the enemy shall seek shelter in Netherlands Indies waterways, they shall abandon their prizes.
The Danish proclamation of neutrality of February 10, 1904, reads:
Prizes must not be brought into a Danish harbor or roadstead except in evident case of stress, nor must prizes be condemned or sold therein,