nothing to decide except the question of damages, namely, whether the owner should recover the cost of the trial and receive in addition an indemnity.

After examining in detail the arguments in support of the English commander's action-such as the presence on board of letters bearing American addresses, the impossibility of placing a prize crew on board the seized vessel, and the danger that there would have been in allowing the vessel to proceed to the nearest American port (Boston) and thus give information to the Americans -the decision states that: "These are circumstances which may have afforded very good reasons for destroying this vessel and may have made it a very meritorious act in Captain CAPEL, as far as his own Government is concerned, but they furnish no reason why the American owner should be a sufferer."

The court therefore ordered restitution together with damages. This amounted to saying that, however necessary might have been the destruction of the prize, considered from the point of view of the interests of the captor State, it was an injurious act and a violation of the rights of the neutral owner, which the established usage of international law would not tolerate. That is precisely the point of view that we are now maintaining.

The Felicity. Here again we have to deal with an American ship, sailing under a permit, which was sunk on January 1, 1814. The complaint was not, however, lodged until October 13, 1818.

The judgment declared, among other things, "if impossible to bring in, their next duty is to destroy enemy property. Where doubtful whether enemy property, and impossible to bring in, no such obligation. arises, and the safe and proper course is to dismiss. Where it is neutral, the act of destruction cannot be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own State: to the neutral it can only be justified, under any such circumstances, by a full restitution in value. These rules are so clear in principle and established in practice that they require neither reasoning nor precedent to illustrate or support them."

This case was complicated by the fact that there was a sailing permit, which, however, the captain did not produce until after the vessel had been set on fire, and of whose existence the first officer and the supercargo stated that they were unaware. There was therefore no way of distinguishing the vessel from an enemy prize. Some construe Lord STOWELL'S language on this occasion as meaning that the captor has the right to destroy a prize, provided he is willing to give compensation for its value. That is an error. The law forbids

the captor to destroy the neutral prize and condemns the captor who [1018] does so to indemnify the owner. In so far as the latter is concerned,

therefore, the destruction of a neutral prize cannot be justified, and the only way of making amends, according to Lord STOWELL, is to pay the full value of the prize and damages. Even the presence of contraband on board cannot serve as an excuse. The rule is absolute.

Mr. KRIEGE also emphasizes the fact that, if we succeed in establishing a high international court of appeal in the matter of prizes, we shall thereby have given the owner of a destroyed cargo or vessel all the protection that he requires. In this connection, it is proper to note in the first place that no court yet exists, and in the second place that the argument is unsound, since, carried to its logical conclusion, it implies that in a well-organized State a man would have

the right to commit crimes of all kinds, because the courts are there to protect the victims.

Captain Behr remarks that it was never his intention to consider the national laws of the United States or the judgments of Lord STOWELL as international law. Nevertheless they are useful material in seeking the views of different nations on questions of international law and in establishing an international code.

His Excellency Sir Ernest Satow thought that Captain BEHR considered the Naval War Code of 1900 an international law.

Rear Admiral Sperry recalls that this Code was rescinded in 1904 because the rules it contained were not universally admitted by the other States.

Mr. Kriege thinks that without the complete text of Sir ERNEST SATOW'S observations before one, it is difficult to answer in sufficient detail his remarks. He does not dare to enter into a debate with his Excellency Sir ERNest Satow as to the real scope of Lord STOWELL'S decisions. He desires, however, to state that his perusal of Lord STOWELL'S decisions has left him with a different impression from that of Sir ERNEST SATOW. He states, moreover, that his view of the interpretation to be given to these decisions is shared by so competent a jurist as Professor HOLLAND, and therefore it would seem to be not entirely without foundation. Mr. KRIEGE refers to the letters addressed by Professor HOLLAND to the Times on August 17 and 30, 1904,1 as well as to a report submitted to the British Academy, the text of which was published in the Revue de droit international in 1905 (p. 359), in which Professor HOLLAND expresses himself as follows:

While it is, on principle, most undesirable that neutral property should be exposed to destruction without enquiry, cases may occasionally occur in which a belligerent could hardly be expected to permit the escape of such property, though he is unable to send it in for adjudication. The contrary opinion is, I venture to think, largely derived from a reliance upon detached paragraphs in one of Lord STOWELL'S judgments on the subject, judgments which, taken together, show little more than that, in his view, no plea of national interest will bar the claim of a neutral owner to be fully compensated for the value of his property, when it has been destroyed without judicial proof of its noxious character. "Where doubtful whether enemy's property, and impossible to bring in, the safe and proper course," says Lord STOWELL, "is to dismiss." The Admiralty Manual of 1888 accordingly directs Commanders, who are unable to send in their prize, to [1019] "release the vessel and cargo without ransom, unless there is clear proof that she belongs to the enemy." This indulgence can hardly, however, be proclaimed as an established rule of international law, in the face of the fact that the sinking of neutral prizes is, under certain circumstances, permitted by the prize codes not only of Russia, but also of such Powers as France, the United States, and Japan.

In reply to his Excellency Sir ERNEST SATOW's concluding remarks, Mr. KRIEGE observes that the destruction of a neutral prize does not in itself constitute a wrong toward the owner; it is a wrong only in the event of the capture of the vessel not being justified. Now the unjustifiable capture of a vessel always involves damages to the owner. In this sense there is no essential difference between the case in which a vessel is destroyed and that in which it is brought into port and kept there during the trial of the case, which may last several 1 Annex 43.

years. If the seizure of the vessel is declared illegal, there must be reparation for the wrong done the owner under both hypotheses. It does not follow by any means that the captain of a cruiser has the right to seize or to destroy a vessel when he knows that capture is unjustifiable. But in case he is mistaken in his judgment of the facts and seizes or destroys an innocent vessel, it is the courts that are called upon to protect the victims. In the first case they will order restitution of the vessel and will assess the damages; in the second case they will award the owner an indemnity sufficient to compensate him for all losses resulting from the vessel's destruction. The establishment of an international court would serve to increase the guarantees that the owner will obtain full satisfaction in case of an unjustifiable capture.

Rear Admiral Sperry reserves the right to return to these points when the committee again takes up the discussion.

The President notes that the right to destroy neutral prizes has not given rise to any new discussion. Furthermore, the various opinions maintained in Lord STOWELL'S decisions and Professor HOLLAND'S letters are very interesting, but they possess no binding or practical force, so far as we are concerned. Judgments of prize courts are the personal views of the judges; the opinions of Professor HOLLAND are likewise personal opinions. However, the differences of opinion that exist in the magistracy, in science, and among Governments, the arguments that have been deduced from the existence of the "Naval Code" of 1900 and its repeal in 1904 are a further proof of the imperative necessity of reaching an agreement and of putting an end to the chaos that prevails in these various matters. It is my profound conviction, adds the PRESIDENT in conclusion, that it is our moral duty to furnish the Governments with certain. elements that may be used as the basis of an international law or of universally recognized principles. It seems to me to be well-nigh impossible to create an international prize court without giving it a basis of jurisdiction, at least in the shape of certain principles of law formally recognized by the Powers of the civilized world.

The PRESIDENT asks whether the committee has any observations to make on the minutes of the ninth and tenth meetings.

The committee approves the minutes of the ninth meeting and postpones the adoption of the minutes of the tenth to the next meeting.

[1020] The PRESIDENT says that according to the order of business the committee was to hear Mr. FROMAGEOT's report on the treatment of private property, but the German delegation has asked for a postponement, reserving the right to make modifications therein, particularly with regard to the observations presented by his Excellency Baron MARSCHALL VON BIEBERSTEIN on the question of inviolability of private property at sea.

Mr. Fromageot (reporter) requests the members of the committee to inform him as soon as possible of the modifications that they would like to have made in his reports.

1

Since the order of business calls for the reading of Mr. FROMAGEOT's report 1 on the "exemption from capture of coastal fishing boats and certain other vessels in time of war," the President states that his Excellency Mr. KEIROKU TSUDZUKI has made a new proposal on this subject, the discussion of which might take place after the reading of the report.

1

1 See report to the committee of examination, eleventh meeting, annex A; see also report to the Conference, vol. i, p. 263 [269].

Mr. Fromageot reads his report.

The President, after reading the text of the Japanese amendment,' remarks that the prohibition which it contains is mentioned in the report. It is clearly established therein that the peaceful character of fishing barks is the only condition of the exemption which they enjoy.

His Excellency Mr. Keiroku Tsudzuki states that the reasons for his amendment are sufficiently clear to require no explanation.

Mr. Guido Fusinato makes certain remarks on the scope of the amendment, especially on its second paragraph.

Mr. Louis Renault thinks that the Japanese amendment contains a very just principle, which it would not be inadvisable to mention in the draft Convention. Paragraph 2 of Article 1 sets forth the conditions of the exemption, which depend upon the fishing and other boats themselves, while the Japanese proposal contemplates a prohibition imposed upon the States to which these vessels belong. These States must not, either directly or indirectly, make use of fishing boats for hostile purposes.

His Excellency Mr. Hagerup concurs in Mr. RENAULT'S observations. He would even be in favor of going still farther and extending this prohibition to the boats designated in Article 2.

Mr. Louis Renault thinks that under these circumstances the Japanese amendment might be made a third article.

Mr. Guido Fusinato remarks that the Japanese amendment permits the belligerent States to use these boats openly.

Mr. Louis Renault thinks that in such an event the penalty remains the same; the boat does not share in the benefit of the exemption.

His Excellency Mr. van den Heuvel remarks that the committee has already examined this question and was unanimous in thinking that fishing barks [1021] should not be used clandestinely in military operations but might take part therein if they bore external marks.

His Excellency Sir Ernest Satow accepts the Japanese proposal and concurs in Mr. LOUIS RENAULT's observations, but he would prefer to have the amendment conclude Article 1. As a matter of fact, it would seem to be difficult to conceive of using the vessels mentioned in Article 2 for military purposes. They would be of little service as torpedo-boat destroyers, while fishing boats might very well be suspected of such use.

His Excellency Mr. van den Heuvel points out the fact that that is exactly the meaning of the Japanese amendment, which merely prohibits the clandestine use of fishing barks for hostile purposes. This amendment includes a principle and a practical requirement. The principle contains the right to make use of the fishing boat for military purposes, the requirement is that the vessel must bear a distinctive, visible mark.

The Reporter observes that the committee has already discussed this question and that it has decided by a vote of 11 to 3 not to allow fishing barks to be used for military purposes, for example, as transports or torpedo-boat destroyers. The President replies that the Japanese proposal being a formal one, the committee is obliged to pass upon it.

Mr. Louis Renault proposes the following formula, which would constitute a paragraph 3 of the article: "The contracting states agree not to use these vessels for a military purpose while allowing them to preserve their pacific appearance." His Excellency Mr. Keiroku Tsudzuki doubts whether this prohibition 1 1 Annex 55.

should be extended to boats engaged in small local trade, in the first place because it is not as easy to distinguish them as in the case of fishing boats, in the second place because they frequently belong to companies that are rich enough not to need the benefit of this exemption.

His Excellency Mr. Hammarskjöld would prefer an expression which, like the word "disguise," would better indicate deception or ruse.

Mr. Louis Renault is not of this opinion. There cannot be a disguise when the vessel retains its ordinary aspect, that is, when its peaceful appearance is preserved.

His Excellency Mr. Keiroku Tsudzuki asks whether boats engaged in small local trade should have the same benefit of immunity as fishing boats..

His Excellency Mr. Hagerup believes that the prohibition contemplated by the Japanese amendment might be extended to the boats mentioned in Article 2. It is not impossible to use them secretly for military purposes, and it is moreover difficult to stipulate that they must not engage in fraud.

His Excellency Sir Ernest Satow states that he will vote for the Japanese amendment with the wording proposed by Mr. RENAULT.

His Excellency Mr. Keiroku Tsudzuki states that he reserves his vote in the matter of boats engaged in small local trade.

Mr. Louis Renault remarks that under these circumstances the whole subject must be discussed again.

[1022] His Excellency Mr. Keiroku Tsudzuki does not want to cause a further discussion of the first two paragraphs, but merely makes reservations with regard to the scope of the third.

His Excellency Count Tornielli remarks that the reservation of his Excellency the Ambassador of Japan would lead to the inference that boats engaged in small local trade might be used for military purposes.

His Excellency Mr. Keiroku Tsudzuki asks himself whether it would not be too easy to make clandestine use of these vessels to give them as clearly defined protection as to fishing boats; but he does not insist upon this, since what he has had to say on the subject were merely certain doubts and not strong objections.

His Excellency Count Tornielli thinks that boats engaged in local business will preserve their ordinary outward appearance and that they must bear a distinctive mark, if they are used for military purposes.

On the proposal of the President, a vote is taken on the Japanese proposal

by the raising of hands, and the proposal is adopted.

Jonkheer van Karnebeek remarks that the provisions voted by the committee are incomplete and of no practical value, unless they determine the character of the outward marks that must appear on a boat used for military purposes.

The President thinks that it is difficult to enter into these details and that

it is preferable to leave it to the Governments to regulate them.

Mr. Kriege wishes to make an observation with regard to Mr. FROMAGEOT'S report. In the course of the seventh meeting of the committee he declared that in his opinion vessels which are engaged temporarily in coastal fishing or in small local trade, but whose build enables them to be used for other purposes, should be subject to capture. He did not insist upon changing the phraseology of the proposal on condition that his remarks should be mentioned in the report.