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TOPIC IV.

ENEMY VESSELS AND THEIR PERSONNEL.

What treatment should enemy vessels and their personnel receive?

CONCLUSIONS.

(a) Public vessels.-Public vessels of the enemy may be captured or destroyed, except the following when innocently employed:

1. Cartel ships designated for and engaged in exchange of prisoners.

2. Vessels engaged in scientific work.

3. Properly designated hospital ships.

4. Vessels exempt by treaty or special proclamation. (b) Days of grace for private vessels of the enemy.A reasonable period of grace, to be determined by each belligerent, shall be allowed for vessels of the other belligerent bound for or within the opponent's ports at the outbreak of war.

(c) Private vessels.-Private vessels of the enemy may be captured, except the following when innocently employed:

1. Cartel ships designated for and engaged in exchange of prisoners.

2. Vessels engaged in religious, philanthropic, and scientific work.

3. Properly designated hospital ships.

4. Small coast fishing vessels.

5. Small boats employed in local trade, e. g., transporting agricultural products.

6. Vessels exempt by treaty or special proclamation. (d) Personnel of public vessels of the enemy.

1. The personnel of public vessels which are liable to capture are liable to be made prisoners of war.

2. The personnel of enemy public vessels which are exempt from capture share in the exemption so long as innocently employed.

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(e) Personnel of private vessels of the enemy (Arts. V-VIII, Hague Convention XI).

ART. V. When an enemy merchant ship is captured by a belligerent, such of its crew as are nationals of a neutral State are not made prisoners of war.

The same rule applies in the case of the captain and officers likewise nationals of a neutral State, if they promise formally in writing not to serve on an enemy ship while the war lasts.

ART. VI. The captain, officers, and members of the crew, when nationals of the enemy State, are not made prisoners of war on condition that they make a formal promise in writing not to undertake, while hostilities last, any service connected with the operations of the war.

ART. VII. The names of the persons retaining their liberty under the conditions laid down in Article V, paragraph 2, and in Article VI, are notified by the belligerent captor to the other belligerent. The latter is forbidden knowingly to employ the said

persons.

ART. VIII. The provisions of the three preceding articles do not apply to ships taking part in the hostilities.

(f) Passengers on private vessels of the enemy.-Innocent passengers on a private vessel of the enemy are to be accorded the utmost freedom consistent with the necessities of war.

NOTES.

Definitions. Certain definitions of terms precede the French instructions of 1912, which, though not clearly distinguished in some writers, can be with propriety and advantage differentiated:

Dans tout le cours des présentes instructions, les expressions capture, saisie, confiscation, séquestre ont été employées avec le sens et dans le but qui vont être indiqués.

1. Opérations effectuées par le bâtiment de guerre.-La capture est l'acte purement militaire par lequel le commandant du navire de guerre substitue son autorité à celle du capitaine du navire de commerce, dispose du navire, de son équipage et de sa cargai son comme il est dit aux présentes instructions, sous réserve du jugement ultérieur du Conseil des prises quant au sort définitif du navire et de sa cargaison.

La saisie, lorsqu'elle s'applique aux marchandises seules, est l'acte par lequel le navire de guerre, avec ou sans l'assentiment du capitaine du navire arrêté, s'empare et dispose de ces marchandises comme il est dit aux présentes instructions, sous réserve du jugement ultérieur du Conseil des prises.

La saisie, lorsqu'elle s'applique au navire, diffère de la capture en ce que le sort ultérieur du navire n'est pas en cause quant à l'eventualité de sa confiscation. Il y a saisie, lorsque le navire doit être mis sous séquestre pendant la durée des hostilités; il y a

CLASSIFICATION OF VESSELS.

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saisie, lorsque le navire doit être contraint de venir debarquer sa marchandise illicite dans un port national ou allié, sous réserve du jugement ultérieur du Conseil des prises quant au sort de cette marchandise.

La saisie est toujours accompagnée des opérations d'inventaire et d'apposition des scellés.

Le mot prise est une expression générale s'appliquant au navire capturé ou à la marchandise saisie. (See Appendix.)

Classification of vessels in time of war.-In a broad way vessels in time of war may be classified as belligerent vessels and as neutral vessels.

In general the neutral or enemy character of the vessel is determined by the flag the vessel is entitled to fly. Belligerent vessels may be public vessels or may be private vessels.

Similarly, neutral vessels may be public or private. The treatment of vessels will be determined by the rights of the class to which they belong.

Enemy public vessels.--The public vessels of the enemy are liable to capture or destruction unless exempt by special convention or under the general principles of international law.

The following public vessels of the enemy are exempt from capture or destruction when innocently employed: 1. Cartel ships designated for and engaged in exchange of prisoners.

2. Vessels engaged in scientific work.

3. Properly designated hospital ships.

4. Vessels exempt by special convention or agreement. The provision that such vessels shall be innocently employed may relate to any fact connected with their employment. Some States have by treaty or other agreement and sometimes by special proclamation exempted mail vessels or some particular class of vessels.

The rules in regard to the general right of capture of public vessels of the enemy are so generally recognized as to need little discussion.

Enemy private vessels.-Under the present rules private vessels of the enemy are subject to capture unless exempt by special convention or under the general principles of international law.

The following private vessels of the enemy are exempt from capture when innocently employed:

1. Cartel ships designated for and engaged in exchange of prisoners.

2. Vessels engaged in religious, philanthropic, and scientific missions.

3. Properly designated hospital ships.

4. Small coast fishing vessels.

5. Small boats employed in local trade.

6. Vessels exempt by treaty or special proclamation. As in the case of public vessels, the provision relating to innocent employment is strictly construed.

In the case of private vessels the question of determination of right to fly the flag may involve visit and search, but it may be said that the principles as set forth in article 57 of the declaration of London of 1909 and in the general report upon that article are usually accepted:

ARTICLE 57.

Subject to the provisions respecting the transfer of flag, the neutral or enemy character of a vessel is determined by the flag which she has the right to fly.

The case in which a neutral vessel is engaged in a trade which is reserved in time of peace, remains outside the scope of, and is in no wise affected by, this rule.

The principle, therefore, is that the neutral or enemy character of a vessel is determined by the flag which she has the right to fly. It is a simple rule which appears satisfactorily to meet the special case of ships, as compared with other movable property, and especially with merchandise. From more than one point of view ships have a kind of individuality, especially they have a nationality, a national character. This nationality is manifest in the right to fly the flag; it places the ships under the protection and control of the State to which they belong; it makes them amenable to the sovereignty and to the laws of that State, and, should the occasion arise, to requisition. This is the surest test of whether a vessel is really a part of the merchant marine of a country, and therefore the best test for determining whether she is neutral or enemy. It is, moreover, expedient to rely exclusively upon this test, and to discard whatever is connected with the personal status of the owner.

The text mentions the flag which the vessel has the right to fly; that means, naturally, the flag which, whether she is actually

CONSIDERATION OF EXEMPTIONS.

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flying it or not, the vessel has the right to display according to the laws which govern the port of the flag.

Article 57 safeguards the provisions respecting transfer of flag, as to which it is sufficient to refer to articles 55 and 56; it might be that a vessel would really have the right to fly a neutral flag, from the point of view of the law of the country to which she claims to belong, but may be regarded as an enemy by a belligerent, because the transfer in virtue of which she has hoisted the neutral flag is annulled by article 55 or by article 56.

Lastly, the question was raised whether a vessel loses her neutral character when she is engaged in a trade which the enemy, prior to the war, reserved for his national vessels. An agreement could not be reached, as has been explained above, in connection with the chapter on Unneutral service, and the question remains wholly open, as the second paragraph of article 57 is careful to state.

Consideration of exemptions.-It should be borne in mind that many of the propositions in regard to the exemption from capture of enemy private property at sea would include exemption of innocent enemy ships.

That this exemption does extend to vessels is evident in the treaty of 1871 between the United States and Italy, which, after stating the general principle of exemption of private property except contraband of war, says in Article XII, "it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party."

Ships engaged in exchange of prisoners under cartel agreements are by contract exempt while fulfilling their

mission.

Vessels engaged in religious, philanthropic, and scientific missions are exempt under article 4 of The Hague convention relative to certain restrictions on the exercise of the right of capture in maritime war. The proposition which led to the formulation of this regulation was proposed by Italy and was also coupled with the recommendation that the state to which the vessel belongs should notify the opposing belligerent of the fact in order that a safe conduct might issue and that measures might be taken that it should be respected. This qualification of the regulation was not adopted.

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