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NEUTRAL PORTS CLOSED TO PRIZE.
The French proclamations of neutrality in the SpanishAmerican war in 1898 and in the Russo-Japanese war in 1904 were identical in providing:
The Government decides in addition that no ship of war of either belligerent will be permitted to enter and to remain with her prizes in the harbors and anchorages of France, its colonies and protectorates, for more than twenty-four hours, except in the case of forced delay or justifiable necessity.
This general tendency to prohibit the entrance of prizes into neutral ports makes the disposition of prizes taken at a distance from the home country a serious question. The difficulty of bringing the prizes in for adjudication would often be so great as to make capture useless. If the belligerent must generally bring captures before the prize court, the very burden of this bringing in the captured vessels would tend to lessen the frequency of such captures. There would be at the same time a greater incentive toward the destruction of vessels which it might be advantageous to the belligerent to destroy, for such vessels being denied entrance to neutral ports, and being remote from a home port, must be destroyed or released.
Opinions in regard to destruction of captured vessels.-Sir Robert Phillimore says:
If a neutral ship be destroyed by a captor, either wantonly or under alleged necessity, in which she herself was not directly involved, the captor, or his government, is responsible for the spoliation. The gravest importance of such an act to the public service of the captor's own state will not justify its commission. he neutral is entitled to full restitution in value. (International Law, III, CCXXXIII.)
Walker makes the general statement thatIn certain cases, as where the captor can not with safety to himself spare a sufficient number of men to man the captured prize, or where the prize is too much injured to make an extended voyage, captured property may be disposed of before adjudication, or even destroyed, but a captor so acting without reasonable justification renders himself liable in respect of neutral property improperly dealt with, and will in all likelihood, on subsequent proceedings in a prize court, be heavily mulcted in damages and costs. Destruction was, however, freely and systematically resorted to by the United States cruisers in the war of 1812-1814 and by the Confederates in the civil war. And in any case it is in the formal revision of the legitimacy of the proceedings of the captor and not in the actual handling of the proceeds that consists
the real value of the prize tribunal. So a sentence of condemnation may, it has been held in British courts, be well passed by a competent prize court on property taken after capture into and still lying within a neutral port, although in general it is the clear duty of the captor to bring his prize for adjudication as speedily as possible to a port of his own country.
For a neutral vessel destroyed by a belligerent the neutral proprietor has clear claim to full indemnity from the destroyer; for neutral property destroyed with a justifiably destroyed hostile vessel no claim can be admitted by the belligerent. (Manual of International Law, p. 152.)
If the statement in the first clause above means to imply that the grounds which would be a "reasonable justification” for the destruction of a belligerent vessel may be a "reasonable justification” for the destruction of a neutral vessel, it is not according to the present idea in regard to the treatment of neutrals.
Hall says thatSome authorities appear to look upon the destruction of captured enemy's vessels as an exceptionally violent exercise of the extreme rights of war
It is somewhat difficult to see in what the harshness consists of destroying property which would not return to the original owner if the alternative process of condemnation by a prize court were suffered. It has passed from him to the captor, and if the latter chooses rather to destroy than to keep what belongs to himself, persons who have no proprietary interest in the objects destroyed have no right to complain of his behavior. Destruction of neutral vessels or of neutral property on board an enemy's vessel would be a wholly different matter. (International Law, 5th ed., p. 459.)
Hall summarizes the relations of the captor to the neutral prize as follows:
In the absence of proof that he has rendered himself liable to penalties, a neutral has the benefit of those presumptions in his favor which are afforded by his professed neutrality. His goods are prima facie free from liability to seizure and confiscation. If then they are seized it is for the captor, before confiscating them or inflicting a penalty of any kind on the neutral, to show that the acts of the latter have been such as to give him a right to do so. Property therefore in neutral goods or vessels which are seized by a belligerent does not vest upon the completion of a capture. It remains in the neutral until judgment of confiscation has been pronounced by the competent courts after due legal investigation. The courts before which the question is brought whether capture of neutral property has been
LATE OPINIONS ON DESTRUCTION.
effected for sufficient cause are instituted by the belligerent and sit in his territory, but the law which they administer is international law.
Such being the position of neutral property previously to adjudication, and such being the conditions under which adjudication takes place, a captor lies under the following duties:
He must bring in the captured property for adjudication, and must use all reasonable speed in doing so. In cases of improper delay, demurrage is given to the claimant, and costs and expenses are refused to the captor. It follows as of course from this rule-which itself is a necessary consequence of the fact that property in neutral ships and goods is not transferred by capture-that a neutral vessel must not be destroyed; and the principle that destruction involves compensation was laid down in the broadest manner by Lord Stowell; where a ship is neutral, he said, “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 circumstances by a full restitution in value." It is the English practice to give costs and damages as well; to destroy a neutral ship is a punishable wrong; if it can not be brought in for adjudication, it can and ought to be released. If a vessel is not in a condition to reach a port where adjudication can take place, but can safely be taken into a neutral port, it is permissible to carry her thither, and to keep her there if the local authorities consent. In such case the witnesses, with the ship's papers and the necessary affidavits, are sent in charge of an officer to the nearest port of the captor where a prize court exists. (International Law, 5th ed., p. 733.)
A late English opinion is as follows:
If the prize is a neutral ship, no circumstances will justify her destruction before condemnation. The only proper reparation to the neutral is to pay him the full value of the property destroyed. (Atlay's edition Wheaton's International Law, p. 507, sec. 359e.)
In an address before the British Academy, April 12, 1905 (Proceedings, Vol. III, p. 12), Professor Holland sets forth the present position in regard to the destruction of neutral vessels. He says:
If ship and cargo belong, beyond question, to the enemy, he may, after taking off the crew, sink the ship, the property in which is now vested in his own government.
If, however, the ship or cargo be neutral, the matter is not so simple. The neutral government is not bound to acquiesce in the destruction of the possibly innocent property of its subjects, at any rate unless some overwhelming necessity can be shown for the course which has been adopted; if, indeed, even overwhelming neceseity would be sufficient to justify it.
The destruction of a neutral ship must be clearly distinguished from the destruction of a belligerent ship even under the principles at present generally accepted. If the belligerent's vessel is good prize it may be lost to that belligerent from the time when his opponent captures it. This is not always necessarily the case, because it may be recaptured or a court for some reason may not condemn the vessel. “Quarter-deck courts” should be avoided, except in extreme instances, even in deciding on the destruction of enemy vessels. Such vessels may have neutral cargo, which may be in no way involved in the hostilities. The principle of the Declaration of Paris that “neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag,” may be involved in such manner as to make great caution necessary in destroying vessels of the enemy before adjudication.
Much greater care should be taken before destroying a neutral vessel itself.
Lawrence, writing in 1895, says: Meanwhile it is necessary to point out that a broad line of distinction must be drawn between the destruction of enemy property and the destruction of neutral property. The former has changed owners directly the capture is effected, and it matters little to the enemy subject who has lost it whether it goes to the bottom of the sea or is divided by public authority among those who have deprived him of it. But the latter does not belong to the captors till a properly constituted court has decided that their seizure of it was good in international law, and its owners have a right to insist that an adjudication upon their claim shall precede any further dealings with it. If this right of theirs is disregarded a claim for satisfaction and indemnity may be put in by their government. It is far better for a naval officer to release a ship or goods as to which he is doubtful, than to risk personal punishment and international complications by destroying innocent neutral property. Even where what is believed to be enemy property is concerned, and destruction or release becomes the only possible alternative, it would perhaps be wise to adopt the latter unless the hostile nationality of the vessel and ownership of the cargo are too clearly established to admit of mistake. But the necessity of rapid movement in modern naval warfare, combined with the fact that neutral ports will in most cases be closed to prizes, is almost certain to result in an increase of the practice of destruction unless the nations will consent to take a further step forward and prohibit the capture of private property unless it be contraband of war. (Principles of International Law, p. 406.)
DESTRUCTION BRINGS LIABILITIES.
Further it is generally admitted that the destruction of neutral property can only be justified to the neutral by full restitution of value. The naval officer destroying a neutral vessel would thus assume a serious responsibility in case the destruction is not justifiable. In case it is not warranted there would fall upon the belligerent destroying the neutral vessel not merely claim for full restitution of value, but also claim for damages.
The generally enunciated rule in regard to destruction of an enemy's vessel is, “an enemy's ship can be destroyed only after her crew has been placed in safety.” If this is to be strictly interpreted, there would be considerable doubt as to whether the deck of a war vessel, whose commander fears that his prize is in imminent danger of recapture because of the approach of his enemy, would be a place of safety.” It is held that the property and persons of belligerents are subject to the hazard of war when coming within the field of operations. It would scarcely follow that such persons should be forced to assume such hazards, particularly when it is a matter of doubt before adjudication by the court whether the vessel is a proper subject for seizure. What is true of the belligerent vessel is even more emphatically true of a neutral vessel.
In regard to the destruction of prizes a telegram from the Department of State, Washington, August 6, 1904, says:
Replying to Mr. Choate's telegram of the 3d instant, Mr. Hay states that, as the Department is not sufficiently advised of all the facts and circumstances connected with the sinking of the knight Commander, it is not prepared to express an opinion on the case, nor can it say that, in case of imperative necessity, a prize may not be lawfully destroyed by a belligerent captor. (Foreign Relations, U. S., 1904, p. 337.)
In a communication of Lord Landsdowne to the British ambassador at St. Petersburg, August 10, 1904, a protest against the destruction of neutral ships is made:
The position, already sufficiently threatening, is aggravated by the assertion on behalf of the Russian Government that the captor of a neutral ship is within his rights if he sinks it, merely for the reason that it is difficult, or impossible, for him to convey it to a national