those actually embodied in the armed forces of the enemy by the Declaration of London, 1909, to the following effect: "ART. 47. Any individual embodied in the armed force of the enemy and who is found on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for the capture of the vessel." (d) Auxiliary coal, repair, supply, or transport ships, or other vessels under orders or control of an repair, supply, enemy government or in its exclusive employ have an undoubted hostile character.1 Auxiliary coal, or transport ships. The general penalty for the performance of unneutral service is the forfeiture of the vessel so engaged. The penalties specifically prescribed in the Declaration of London, 1909, are set forth in the following articles: "ART. 45. A neutral vessel is liable to be condemned and, in a general way, is liable to the same treatment which a neutral vessel would undergo when liable to condemnation on account of contraband of war: "(1) If she is making a voyage specially with a view to the transport of individual passengers who are embodied in the armed force of the enemy, or with a view to the transmission of information in the interest of the enemy. "(2) If, with the knowledge of the owner, of the one who charters the vessel entire, or of the master, she is transporting a military detachment of the enemy, or one or more persons who, during the voyage, lend direct assistance to the operations of the enemy. "In the cases specified in the preceding paragraphs, (1) and (2), goods belonging to the owner of the vessel are likewise liable to condemnation." "ART. 46. A neutral vessel is liable to be condemned and, in a general way, is liable to the same treatment which The "Kow-shing,” Takahashi, 24–51. she would undergo if she were a merchant vessel of the enemy: "1. If she takes a direct part in the hostilities. "2. If she is under the orders or under the control of an agent placed on board by the enemy Government. "3. If she is chartered entire by the enemy Government. "4. If she is at the time and exclusively either devoted to the transport of enemy troops or to the transmission of information in the interest of the enemy. "In the cases specified in the present article, the goods belonging to the owner of the vessel are likewise liable to condemnation." 1 . The right of visiting and searching mer chant ships. 136. Visit, Search, and Seizure (a) "The right of visiting and searching merchant ships upon the seas-whatever be the ships, whatever be the cargoes, whatever be the destinations-is an incontestable right of the lawfully commissioned cruisers of a belligerent nation," 2 is the statement of the general principle laid down in the case of the Maria. Judge Story says that the right is “allowed by the general consent of nations in the time of war and limited to those occasions." 3 There is, however, a qualified right of search in the time of peace in case of vessels suspected of piracy or of slave trade. Under these circumstances the right must be exercised with the greatest care, otherwise the searching party is liable to damages.4 The object of (b) In the time of war the right is exercised in order to secure from the neutral the observance of the laws of neutrality, or specifically, according to the regulations of the United States: the right of search. 1. To determine the nationality of a vessel. 1 Appendix, Chap. III, p. 458. 21 C. Rob., 340, 359. The "Marianna Flora," 11 Wheat., 1. "International Law," Naval War College, p. 164; Lawrence, §§ 124, 210. NOTE. The right of approach to ascertain the nationality of a vessel is generally allowed in time of peace. "International Law," Naval War College, p. 165. 2. To ascertain whether contraband of war is on board. 3. To ascertain whether a breach of blockade is intended or has been committed. 4. To ascertain whether the vessel is engaged in any capacity in the service of the enemy. The method of (c) The vessel is usually brought to by firing a gun with a blank charge, or if this is not sufficient, a shot across the bows or even by the use of necessary force. The conducting the cruiser should then send a small boat with an search. officer to conduct the search. Arms may be carried in the boat but not upon the persons of the men. The officer should not be accompanied on board the vessel by more than two men. He should examine the papers of the vessel. If these papers show contraband, any offense in respect to blockade, or that she is in the enemy service, the vessel should be seized; otherwise she should be set free, unless suspicious circumstances justify a further search. An entry in the log book of the circumstances of the visit should be made by the boarding officer.1 (d) The papers expected to be on board as evidence of the character of the vessel are: 2. The crew and passenger list. 3. The log book. 4. A bill of health. 5. The manifest of cargo. 6. A charter party, if the vessel is chartered. 7. Invoices and bills of lading.2 1 See Gen. Order U. S. Navy No. 492, 1898. 2 Most of the forms are given in Glass's "Marine International Law." (e) It is generally held that a vessel may be seized in case of : Grounds of seizure. 1. Resistance to visit and search.1 2. Clear evidence of attempt to avoid visit and search by escape. 3. Clear evidence of illegal acts on the part of the neutral vessel. 4. Absence of or defect in the necessary papers. (a) Fraudulent papers. (b) Destruction, defacement, or concealment of papers. (c) Simple failure to produce regular papers. (f) In case of seizure it is held that the neutral vessel and property vest in the neutral till properly condemned by a duly authorized court. The captor is therefore under obligation: Seizure. 1. To conduct the seizure with due regard to the person and property of the neutral. 2. To exercise reasonable diligence to bring the capture quickly to a port for its adjudication. 3. To guard the capture from injury so far as within his power. Failure to fulfill these obligations renders the belligerent liable to damages.2 In the Chino-Japanese War of 1894, the Japanese war vessels visited eighty-one neutral vessels but only one was brought to the prize court.3 In the Russo-Japanese War of 1904-1905 sixty-four vessels were brought before the Japanese prize courts, of which fifty were condemned. 4 (g) The Hague Convention of 1907 with regard to the Right of Capture in Naval War, provided for the inviolability 1 See Declaration of London, 1909, Article 63, Appendix, p. 462. Takahashi, Chino-Japanese, 16-23. 2 Hall, p. 738. Takahashi, Russo-Japanese, 537. of all postal correspondence of whatever character on the high seas except when "destined for or proceeding from a blockaded port." The mail-ship is not exempt Exemptions from capture. but should not be searched except when absolutely necessary. Innocently employed small coast fishing and coast trading vessels are exempt from capture, as are vessels engaged in religious, scientific, or philanthropic missions.1 (h) As a general principle a neutral vessel which has been seized should be conducted to a prize court Destruction of neutral prizes. and according to the Declaration of London, 1909: "ART. 48. A neutral vessel which has been captured may not be destroyed by the captor; she must be taken into such port as is proper for the determination there of the rights as regards the validity of the capture." It was evident, however, that in practice neutral vessels were sometimes destroyed and that the regulations of certain states made provision for destruction under exceptional circumstances. There was not agreement upon what should be admitted as exceptional circumstances. To meet this difficulty the London Declaration provides: "ART. 49. As an exception, a neutral vessel which has been captured by a belligerent ship, and which would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the ship of war or to the success of the operations in which she is at the time engaged." All persons and papers must be placed in safety. The captor must establish that his act was due to "an exceptional necessity," otherwise compensation must be paid "whether or not the capture was valid." Compensation must also be 1 Appendix, p. 432. |