for the purpose of being imported into the common stock of the country. This test was applied over a century ago by Sir William Grant in the Court of Appeals in prize cases in the case of the William. It was adopted by the United States Supreme Court in their unanimous judgment in the Bermuda, where Chase, C. J., ir delivering the judgment, said: "Neutrals may convey in neutral ships, from one neutral port to another, any goods, whether contraband of war or not, if intended for actual delivery at the port of destination, and to become part of the common stock of the country or of the port." (L. R. [1915], p. 215.)

The cargo on board a vessel at the time of seizure was the proper subject for the proceedings of the prize court, but not the goods for which this cargo might be substituted in the neutral country to which the cargo itself was really destined.

SOLUTION

The capture should not be sustained under the doctrine of continuous voyage.

SITUATION II

SUBMARINES

Assuming that the treaty of the Conference on Limitation of Armament, 1921-22, relating to the use of submarines and noxious gases in warfare should not be ratified, what are the privileges of a belligerent submarine?

CONCLUSION

A belligerent submarine lawfully commissioned as a vessel of war may exercise the rights of a vessel of war, but its nature gives it no special rights or privileges.

NOTES

Treaty in relation to the use of submarines and noxious gases in warfare.2-It is assumed in this situation that the treaty in relation to the use of submarines and noxious gases of the Washington Conference on the Limitation of Armament has not been ratified.

By Article II of the above treaty "all other civilized powers" are invited "to express their assent" to Article I, which is declared to be "among the rules adopted by civilized nations." This reaffirmation is apparently to make clearer to "the public opinion of the world the established law." The law as stated in Article I would presumably be binding, even without a treaty, because it is declared to be "an established part of international law."

2A TREATY PROPOSED AT WASHINGTON, 1922, IN RELATION TO THE USE OF SUBMARINES AND NOXIOUS GASES IN WARFARE

The United States of America, the British Empire, France, Italy and Japan, hereinafter referred to as the Signatory Powers, desiring to make more effective the rules adopted by civilized nations for the protection of the lives of neutrals and noncombatants at sea in time of war, and to pre

Queries as to articles.-Many queries have arisen as to the exact meaning of words and clauses in Article I of the treaty. These questions vary in significance, but deserve attention because any new statement, even of law already "adopted," should be clear to those who may be bound to act in accordance with its provisions. It has been asked whether the use of the word "adopted" in the preamble and in Article I had the same meaning, and

vent the use in war of noxious gases and chemicals, have determined to conclude a Treaty to this effect, and have appointed as their Plenipotentiaries:

[Names of plenipotentiaries.]

ARTICLE I

The Signatory Powers declare that among the rules adopted by civilized nations for the protection of the lives of neutrals and noncombatants at sea in time of war, the following are to be deemed an established part of international law;

(1) A merchant vessel must be ordered to submit to visit and search to determine its character before it can be seized.

A merchant vessel must not be attacked unless it refuse to submit to visit and search after warning, or to proceed as directed after seizure. A merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety.

(2) Belligerent submarines are not under any circumstances exempt from the universal rules above stated; and if a submarine can not capture a merchant vessel in conformity with these rules the existing law of nations requires it to desist from attack and from seizure and to permit the merchant vessel to proceed unmolested.

ARTICLE II

The Signatory Powers invite all other civilized Powers to express their assent to the foregoing statement of established law so that there may be a clear public understanding throughout the world of the standards of conduct by which the public opinion of the world is to pass judgment upon future belligerents.

ARTICLE III

The Signatory Powers, desiring to insure the enforcement of the humane rules of existing law declared by them with respect to attacks upon and the seizure and destruction of merchant ships, further declare that any person in the service of any Power who shall violate any of those rules, whether or not such person is under orders of a governmental superior, shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy and may be brought to trial before the civil or military authorities of any Power within the jurisdiction of which he may be found.

ARTICLE IV

The Signatory Powers recognize the practical impossibility of using submarines as commerce destroyers without violating, as they were violated

WASHINGTON CONFERENCE

41

it was presumed that the word referred to an act completed, or, as stated, rules "deemed an established part of international law."

The first paragraph speaks of the rules enumerated thereunder as "adopted by civilized nations for the protection of the lives of neutrals and noncombatants at sea in time of war." The history of the law of visit and search shows that it was primarily concerned with mat

in the recent war of 1914-1918, the requirements universally accepted by civilized nations for the protection of the lives of neutrals and noncombatants, and to the end that the prohibition of the use of submarines as commerce destroyers shall be universally accepted as a part of the law of nations they now accept that prohibition as henceforth binding as between themselves and they invite all other nations to adhere thereto.

ARTICLE V

The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized Powers are parties,

The Signatory Powers, to the end that this prohibition shall be universally accepted as a part of international law binding alike the conscience and practice of nations, declare their assent to such prohibition, agree to be bound thereby as between themselves and invite all other civilized nations to adhere thereto.

ARTICLE VI

The present Treaty shall be ratified as soon as possible in accordance with the constitutional methods of the Signatory Powers and shall take effect on the deposit of all the ratifications, which shall take place at Washington.

The Government of the United States will transmit to all the Signatory Powers a certified copy of the procès-verbal of the deposit of ratifications. The present Treaty, of which the French and English texts are both authentic, shall remain deposited in the Archives of the Government of the United States, and duly certified copies thereof will be transmitted by that Government to each of the Signatory Powers.

ARTICLE VII

The Government of the United States will further transmit to each of the Non-Signatory Powers a duly certified copy of the present Treaty and invite its adherence thereto.

Any Non-Signatory Power may adhere to the present Treaty by communicating an Instrument of Adherence to the Government of the United States, which will thereupon transmit to each of the Signatory and Adhering Powers a certified copy of each Instrument of Adherence.

In faith whereof, the above named Plenipotentiaries have signed the present Treaty.

Done at the City of Washington, the sixth day of February, one thousand nine hundred and twenty-two.

88941-28-4

ters of property rather than life, and that prior to the World War loss of life was rarely involved except in case of attempt to escape or in case of resistance. If, "(1) A merchant vessel must be ordered to submit to visit and search to determine its character before it can be seized," means, that after an "order to submit to visit and search" a vessel may be seized without further action, it can scarcely be maintained that this part of Article I is "an established part of international law." Under accepted law the order is preliminary to the visit and search. By visit and search the grounds for seizure are determined, and visit and search precedes seizure, and seizure without visit and search would be justified in such a case only on the ground of resistance. The Instructions for the Navy of the United States issued in June, 1917, were similar to those of other States, and were as follows:

47. The boarding officer shall first examine the ship's papers in order to ascertain her nationality, ports of departure and destination, character of cargo, and other facts deemed essential. If the papers furnish conclusive evidence of the innocent character of vessel, cargo, and voyage, the vessel shall be released; if they furnish probable cause for capture she shall be seized and sent in for adjudication. (1925 Naval War College, 27.)

There is the further complication in this paragraph of the proposed treaty that the word "seizure," when used in the same article as "capture," would be presumed to be used in the technical sense as the terms are used in naval regulations, though it is not clear that this was intended. Further, the object of visit and search of a vessel is not merely to determine "its character," but also to determine the character of its cargo and personnel and its destination, conduct, etc., as grounds for seizure.

The third paragraph of Article I states:

A merchant vessel must not be attacked unless it refuse to submit to visit and search after warning or to proceed as directed after seizure.

If this paragraph intends to convey in the word "attack" the meaning of "use of force against" in case of