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port for adjudication by a Prize Court. We understand that this right of destroying a prize is claimed in a number of cases; among others, when the conveyance of the prize to a prize court is inconvenient because of the distance of the port to which the vessel should be brought, or when her conveyance to such a port would take too much time or entail too great a consumption of coal. It is, we understand, even asserted that such destruction is justifiable when the captor has not at his disposal a sufficient number of men from whom to provide a crew for the captured vessel. It is unuecessary to point out to Your Excellency the effects of a consistent application of these principles. They would justify the wholesale destruction of neutral ships taken by a vessel of war at a distance from her own base upon the ground that such prizes had not on board a sufficient amount of coal to carry them to a remote foreign port—an amount of coal with which such ships would probably in no circumstances have been supplied. They would similarly justify the destruction of every neutral ship taken by a belligerent vessel which started on her voyage with a crew sufficient for her own requirements only, and therefore unable to furnish prize crews for her captures. The adoption of such measures by the Russian Government could not fail to occasion a complete paralysis of all neutral commerce.
It appears to His Majesty's Government that no pains should be spared by the Russian Government in order to put an end without delay to a condition of things so detrimental to the commerce of this country, so contrary to acknowledged principles of international law and so intolerable to all neutrals. You should explain to the Russian Government that His Majesty's Government does not dispute the right of a belligerent to take adequate precautions for the purpose of preventing contraband of war, in the hitherto accepted sense of the words, from reaching the enemy; but they object to, and can not acquiesce in, the introduction of a new doctrine under which the wellunderstood distinction between conditional and unconditional contraband is altogether ignored, and under which, moreover, on the discovery of articles alleged to be contraband, the ship carrying them is, without trial and in spite of her neutrality, subjected to penalties which are reluctantly enforced even against an enemy's ship. (Parliamentary Papers, Russia, No. 1 (1905), p. 12.)
Many arguments may be urged against the destruction of neutral vessels. Before destruction in any case, the crew, passengers, and papers must be taken from the neutral vessel on board the belligerent ship. These are then immediately subject to all the dangers of war to which a war vessel of a belligerent is subject. Such a position may be an undue hardship for those who have not been engaged in the war and one to which they should not be exposed.
CONCLUSIONS ON DESTRUCTION.
A belligerent vessel, with crew, passengers, and papers of the destroyed neutral vessel, may enter a neutral port to which entrance with the vessel itself would be forbidden. This is in effect almost an evasion of the general prohibition in regard to the entrance of prize, because on board the belligerent vessel is the evidence upon which the decision of the prize court of the belligerent will be rendered. It is certain that a neutral state would be very reluctant to admit within its territory a belligerent vessel having on board the crew and papers of one of its own private vessels which the belligerent had destroyed. The belligerent vessel mighủ thus obtain the supplies from the neutral which would enable it to carry to its prize court the evidence in regard to capture.
It does not seem possible in view of precedent and practice to deny the right of a belligerent to destroy his enemy's vessel in case of necessity. Of course if the doctrine of exemption of private property at sea is generally adopted this right can no longer be sustained. The destruction of neutral vessels not involved in the service of the belligerent is sanctioned neither by precedent nor practice.
Conclusion.—Certainly the rules of the Institute of International Law adopted at Turin in 1882 are sufficiently liberal. These provide 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 crew,
and 5. If the port to which the vessel should be conducted is too remote. (Annuaire 1883, p. 221.)
These rules apply to enemy vessels only, and not to neutral vessels. The attempts to justify the destruction of neutral vessels by reference to the above rules is in no way justified.
The rule contained in the United States instructions to blockading vessels and cruisers in 1898 (General Order
492) if restricted to enemy vessels would seem satisfactory provided the destruction of vessels is to be allowed at all. The rule thus restricted would read:
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, 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.
If a seized neutral vessel can not for any reason be brought into port for adjudication it should be dismissed. TOPIC V.
What position should be assumed in regard to the doctrine of continuous voyage?
The actual destination of vessels or goods will determine their treatment on the seas outside of neutral jurisdiction.
DISCUSSION AND NOTES.
Development of doctrine of continuous voyage.a_It was a common practice of the eighteenth century to limit the carrying trade between mother country and the dependencies to domestic vessels. Many States still impose restrictions upon the coasting and domestic carrying trade. When in the war of 1756 France opened to the Dutch the trade with her colonies previously confined to her own vessels, the English maintained that the Dutch vessels thus engaged were practically in the commercial navy of France and liable to similar treatment. Dutch vessels were accordingly captured and condemned. There were, however, various treaties prior to 1756 by the provisions of which one of the parties to the treaty was to be permitted in time of war to trade at ports belonging to the enemy of the other party. This privilege was a matter of treaty provision between the United States and France in 1778. Article XXIII states:
It shall be lawful for all and singular the subjects of the Most Christian King, and the citizens, people, and inhabitants of the said United States, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandises laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King or the United States. It shall likewise be lawful for the subjects and inhabitants aforesaid to sail with the ships and merchandises aforementioned,
a See also International Law Situations, 1901, Naval War College, pp. 41-84.
and to trade with the same liberty and security from the places, ports, and havens of those who areenemies of both or either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same prince or under several. And it is hereby stipulated that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted. It is also agreed in like manner that the same liberty be extended to persons who are on board a free ship, with this effect, that although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies.
This freedom of trade which had been a matter of treaty agreement was claimed by the armed neutrality of 1780 to be a general right. If trade is opened to all there can not be the same imputation of violation of neutrality as when in 1756 it was opened, to a single State which accepting the opportunity, becomes a quasi-ally of the belligerent.
Apparently to avoid such difficulties as arose in the war of 1756, France opened the trade to the West Indian colonies permanently just before the war in 1779. The rule did not therefore receive much attention till revived in the war against France in 1793, when England attempted to prohibit practically all neutral trade with French colonies and in general the carriage of goods between French ports by neutrals.
Lord Stowell, referring to colonial trade in the case of the Immanuel (2 Robinson's Admiralty Reports, 197), gave a full statement of the relation of the neutral to trade with the enemy ports. He said:
Upon the outbreaking of a war it is the right of neutrals to carry on their accustomed trade, with an exception of the particular cases of a trade to blockaded places, or in contraband articles (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search; in which case, however, they are entitled to freight and expenses. I do not mean to say that in the accidents of a war the property of neutrals may not be variously entangled and endangered; in the nature of human connections it is