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appraisal, and inventory, and with consent of the master, if in accordance with treaty provisions, may be taken, and the vessel, if guilty only of the carriage of contraband, should be dismissed, and the papers relating to the whole transaction should be forwarded to the prize court.
(6) If the master does not consent, the vessel and cargo are liable to the usual penalties for contraband trade.
(c) If the neutral vessel and contraband cargo belong to the same owner, the contraband cargo may be treated as in (a). The vessel, however, should, if possible, be sent to a prize court for adjudication, otherwise the vessel should be dismissed.
(d) Destruction on account of military necessity of a neutral vessel guilty only of the carriage of contraband entities the owner to fullest compensation. Before destruction all persons and papers should be placed in safety. (International Law Situations, Naval War College, 1907, p. 74.)
The case of Knight Commander.-The discussion' which followed the sinking of the British steamer Knight Commander by a Russian cruiser during the RussoJapanese War in 1904 showed that many States had hardly conceived it as possible that a neutral merchant vessel carrying contraband could be destroyed before adjudication by a properly constituted prize court. The case of the Knight Commander is quite fully stated in the Situations for 1907. (Ibid., p. 84 et seq.)
Since the issue of the Situations of 1907 further details of the opinion of the Russian supreme court have been published, not merely as justifying the condemnation as prize, but particularly bearing on the destruction of the Knight Commander:
First of all must be remarked that the question as to the regularity of the sinking of the vessel did not pertain to the examination of the prize court, in absolute conformity with article 58 of the Naval Prize Regulations, but in accordance with the real sense of article 21 of the Naval Prize Regulations, and article 299 of the Naval Military Criminal Statutes, it may pertain to the examination of the naval authorities and the criminal court, inasmuch as the sinking of a vessel is allowed under the personal responsibility of the naval authorities, therefore, to judge whether in the present case the naval authorities suificiently examined the extraordinary circumstances, which decided them to sink the vessel or whether these circumstances were insufficient can only be judged by the commanding authority who ordered the sinking of the ressel and not the prize court.
Knight Commander Case.
55 Besides this, in conformity with the same article 21 of the Naval Prize Regulations and clause 40 of the instructions relatire to the manner in which the capture of vessels is to be effected based on article 26 of the prize regulations confirmed by the council of the admiralty, the fear that the vessel may fall into the hands of the enemy and the distance of a home port to which such vessels may be brought are conditions which justify the sinking of a vessel. The presence of these conditions in the sinking Knight Commander were duly established by an act on July 11, 1904; the question raised in the appeals that the sinking of neutral vessels is illegal is rejected in conformity with articles 11 and 21, which together clearly explain the irregularity of this point; in conformity with article 11 trading vessels of neutral nationality may be subject to capture; in accordance with the same article 21 all captured vessels may be sunk in extraordinary cases; thus, according to Russian law in force, the Russian prize court alone can properly decide this question, and the objections raised in the appeal are negative.
We can not, however, agree with the declaration made by the shipowners' attorney that the Russian law, in allowing “neutral vessels ” to be sunk, is contrary to the principles of international law, if even in a double sense a “neutral vessel ” is such as is neutral only through its nationality, although nowise neutral in its acts. In support of his position, the attorney cites a whole lot of passages from authors who declare themselves against the legality destroying vessels of neutral nationality. But the views taken by authors or learned men, although very authoritative, do not make it an obligatory rule of international law. It is well to adhere to such opinions, but one is not obliged to accept their execution.
Not citing the opposite view, it is not found unnecessary to draw attention to an article by Prof. Holland (Revue de droit international, 1905. no. 3) which exxpresses a doubt whether the sinking of a vessel of neutral nationality should be considered a violation of the principles of international law, especially in view of the circumstances that not only Russian law, but also the laws of France, the United States, and Japan admit the sinking of neutral prizes.
But not stopping within the limits of various authorities it is necessary to examine the questions from the very root. All agree that the principle of international law relative to maritime prizes should be based upon established compromises between the interests of the belligerents on the one side and neutrals on the second part-compromises which should guarantee the rights of all. From this point of view the destruction of a captured vessel of neutral nationality should not be admitted excepting in case of absolute necessity to the interests of the hostile parties. These
cases may, of course, occur much more seldom for the powers which luckily possess ports everywhere than for those which are in less favorable conditions, notwithstanding the most gross violation of neutrality by them, and would likewise in some conditions entirely prevent the belligerents from putting obstacles in the way of ammunition being brought to the enemy, which it is, evident would be irregular and on the part of the other belligerent party who would be in more favorable conditions, it would be an injustice.
In point of view of international law, based upon the above, said compromise between the belligerents and neutrals does not even present itself as very comprehensible, wherefore several writers declare the admittance of the sinking of neutral vessels on which the cargo belongs to neutral owners and even the refusal of compensation for this cargo; but do not admit the sinking of the vessels of neutral owners which carry contraband of war in destination of the enemy's or for an enterprise carried out by the enemy, while in principle the center of weight of the question leads to the point that the legal interests of the owners should not suffer if it should occur in the interest of the belligerents that the vessel should have to be destroyed. But, in the existing Naval Prize Regulations of Russia, the most stringent defend the legal interests of the owners; these interests can scarcely suffer, inasmuch as if the captured cargo was to be confiscated in favor of the Crown, by destroying it, it is not the owners who suffer, but the Crown, which not only is deprived of the possibility of using the cargo, the Crown besides this having to pay compensation if, on the contrary, the prize destroyed turns out that it must be returned to the owners. (Arts. 28–30 and 32.) Regarding in part the objections made by the attorney of the shipowner that in allowing a naval authority to destroy a vessel amounts to giving him the right to decide the case in the place of a prize court—this objection presents itself more or less as a misunderstanding, as, according to the regulations relative to prizes, the instructions to naval authorities relating to the destruction of vessels has but the character of a practical measure called for in cases of necessity; but does not in any way lessen the instructions to prize courts relative to the right of the destruction of property. On the contrary, articles 21 and 74 stipulate that the case should be referred to a prize court for confirmation or liberation. But once the prize court has decided its compensation, the right of capture must, of course, be considered as belonging to the Crown from the time of its capture, and not from the time it was recognized as liable to confiscation, just the same as an inheritance belongs to the heirs from the time of the opening of the inheritance and not from the time the court probated it. In fact, the problem of prize courts consists in that they must recognize the prizethat is to say, if the capture was lawful or illegal; or, in other Prof. Holland on Destruction.
words, to confirm the rights of capture or to refuse to confirm it. In general, prize courts do not create rights, but only confirm them. (Foreign Relations, U. S., 1906, Part II, p. 1328, published 1909.)
The Supreme Court at St. Petersburg decided : 1. To maintain the decision of the Vladivostok prize court and to leave the appeal made by Attorney Bajenoff, in behalf of the owner of the steamer Knight Commander, without consideration.
2. To leave the petitions of the attorneys, Sheftel and Berline, in behalf of the cargo owners of goods noncontraband of war, and for compensation for losses, with examination. (Ibid., p. 1331.)
Opinion of Prof. Holland.-The Russian court refers to the opinion of Prof. Holland. The British Admiralty Manual of Prize Law (sec. 303) directs that a vessel should be released unless there is clear proof that she belongs to the enemy. Prof. Holland, who prepared this manual, said in 1905 that these are the lenient British instructions in which there is not necessarily “any implication that instructions of a severer kind would have been inconsistent with international law."
Prof. Holland also says in 1905 that his opinion may be summarized as follows:
1. There is no established rule of international law which ab. solutely forbids, under any circumstances, the sinking of a neutral prize. A consensus gentium to this effect will hardly be alleged by those who are aware that such sinking is permitted by the most recent prize regulations of France, Russia, Japan, and the United States.
2. It is much to be desired that the practice should be, by future international agreement, absolutely forbidden-that the lenity of British practice in this respect should become internationally obligatory.
3. In the meantime, to adopt the language of the French in. structions, “On ne doit user de ce droit de destruction qu'avec la plus grande réserve"; and it may well be that any given set of instructions (e. g., the Russian) leaves on this point so large a discretion to commanders of cruisers as to constitute an intolerable grievance.
4. In any case, the owner of neutral property, not proved to be good prize, is entitled to the fullest compensation for his loss. In the language of Lord Stowell:
“ The destruction of the property may have been a meritorious act toward his own Government; but still the person to whom
sia of July 11, 1799, as stated, binds the two States when they “ shall have a common enemy or shall both be neutral.” In either casevessels of war of each shall upon all occasions take under their protection the vessels of the other going the same course, and shall defend such vessels as long as they hold the same course against all force and violence in the same manner as they ought to protect and defend vessels belonging to the party of which they are.
While it may not be necessary for a ship of war engaged in convoying certain merchant vessels of her own nationality to receive on the high sea other vessels of her own nationality to the convoy if they request such protection, yet there would seem to be a strong obligation to do this if the vessels offered the same evidence of neutral character as afforded by those, already under convoy. The article of the treaty with Prussia is, however, of such form as to leave to the naval officer little discretion, as it does not specify convoy, but provides for protection of vessels going on the same course, apparently providing for falling in with such vessels at sea. The provision is also made very comprehensive by the insertion of the words “ upon all occasions.” The only limitations upon the agreement to grant this protection are that the parties “ shall have a common enemy or shall both be neutral,” the vessels shall be “ going the same general course," so long as the vessels “hold the same course," and be extended “in the same manner to the party's own vessels. In other words, this agreement binds each party to give to the vessels of the other when they have a common enemy or are both neutral the same degree of protection.
United States Navy Regulations. The degree of this protection is indicated in the United States Navy Regulations for 1909, which provide as to the commander in chief:
ART. 333. He shall afford protection and convoy, so far as it is within his power, to merchant vessels of the United States and to those of allies.
ART. 334. During a war between civilized nations with which the United States is at peace he and all his command shall