According to Article 1, "a sufficient period" may be granted a merchant ship to allow it "to leave the port freely." That does not seem to be logical. There are three distinct points to be considered: (1) The departure, properly so called, which can be conceived of without any period of grace and respecting which the question arises likewise whether it shall be allowed as an obligation or merely as a favor; (2) the period of grace, which is bound up with the question of loading and unloading; (3) finally, the situation in which the vessel would find itself, if it were neither allowed to depart freely nor granted a period of grace, such a case being contemplated by Article 2. If this distinction is well-founded, a “sufficient period" in which to leave freely is an anomaly, proceeding from a confusion of ideas. It therefore seems to be necessary to rectify the text so as to remove the anomaly on the one hand, and on the other hand to show clearly the distinction indicated above between immediate departure and departure after a period of grace. He points out in the second place that it appears from the deliberations of the Commission that we are confronted with two essentially different conceptions of days of grace. According to the first, days of grace include both the stay in port and the voyage to the port for which the vessel set sail upon leaving. This system is the basis of the proposal of the delegation of Russia and has been explained by Colonel OVTCHINNIKOW.1 The second system limits days of grace to the stay in port. On leaving port the vessel will be furnished with a pass which will permit it to go directly to an indicated destination without danger. This latter system has likewise been put into operation during the past century. Mr. VAN KARNEBEEK points out that neither the Commission nor the committee has declared itself on these two systems. It is his opinion, however, that they ought first to choose between the two. The President: This is a question of principle which cannot be brought up now. Jonkheer van Karnebeek remarks that the question is connected with the text which has been adopted. Having asked at a previous meeting what was to be understood by the term "neutral port,” he received the reply “any neutral port." He would be the last to object to such an interpretation. But why, then, the restriction of the nearest port where a national port is concerned? Mr. Van KARNEBEEK considers this illogical and he sees in it a consequence of the confusion of the two aforesaid systems between which a distinction has been drawn. The nearest national port belongs to the first conception; any neutral port to the second. The President: These observations will appear in the minutes. Jonkheer van Karnebeek, pointing out that what he has just said applies equally to Article 2, would like, in order to make his remarks complete, to call attention to two questions which arise in connection with this article as adopted. [948] (1) Is the obligation of indemnification for all losses applicable likewise to the case of detention pure and simple, when there is no requisitioning? The wording adopted might lead to the belief that it is. (2) In fixing the indemnity to be paid to the owner, will the fact that he has been deprived of the use of the vessel be taken into account? This does not * Annex 18. seem to follow from the discussions at the last meeting. The wording should therefore be modified and should contain a reservation on this subject. The President lays out the program for the next meeting. A vote will be taken on the British proposal concerning days of grace, and the committee will then pass to a discussion of the texts relative to the situation of the crews of captured neutral vessels, and to the question of blockades. Mr. Kriege requests that the subject of postal inviolability be reserved for the committee now charged with the question of contraband. It is decided that this shall be done. The meeting adjourns at 5 o'clock. [949] FOURTH MEETING AUGUST 14, 1907 His Excellency Mr. Martens presiding. His Excellency Lord Reay makes the following comments on the minutes of the second meeting of the committee: 1 The second proof of the minutes of the second meeting of the committee. of examination contains a remark by the PRESIDENT, which might give rise to a misapprehension. In alluding to my communication he says: "It confirms the fact that there did not exist the slightest difficulty as to the place of conversion." Lord GRANVILLE, not having been consulted on the place of conversion, did not set forth his ideas on the subject, and it seems to me improper to draw the conclusion from his silence on the matter that Lord GRANVILLE would have accepted conversion on the high seas, which could not have been in question in 1870 and which is the only question that presented difficulties in the Fourth Commission and is the subject of our discussion. The President says that his Excellency Lord REAY's remarks confirm the fact that the question of the place of conversion was not touched upon in the above-mentioned diplomatic correspondence. At the request of Mr. Kriege, the adoption of the minutes of the third meeting is postponed to the next meeting. The program calls for the resumption of the discussion on the question of days of grace. The President informs the committee that Mr. FROMAGEOT has undertaken the preparation of a revised draft. Article 1 takes into account the amendments of the British and Belgian delegations; Article 3 reproduces Mr. FusiNATO's proposal; finally, there is a new Article 4 which covers the fate of the cargo. Mr. Fromageot (reporter) points out the provisional character of his draft. He explains that the words in the second line of Article 1 meet the desires expressed by Great Britain and Belgium; the concluding words cover what Mr. VAN KARNEBEEK had in mind; finally, Article 3 provides, in conformity with the compromise proposal of Mr. FROMAGEOT, the same treatment accorded vessels taken unaware in port to vessels encountered on the high seas unaware of the existence of war. [950] Mr. Guido Fusinato would prefer to use the word "confiscated" instead of the word "captured" in Article 3. The President reads the new proposal of the British delegation, which is to be Article 5, worded as follows: . These provisions shall not be applicable to enemy merchant ships designed in advance for conversion into war-ships. His Excellency Mr. Hammarskjöld remarks that the preservation of the wording of Article 1 depends upon the adoption of Article 5. He would prefer to reserve for the end of the draft the article concerning vessels capable of conversion. Moreover, the original wording of the Russian proposal seems to him preferable. It is indeed difficult to tell what the new wording will give rise to, to know what will be the fate of the vessel permitted to leave without being granted days of grace or receiving a "pass." May it be captured? Mr. Louis Renault states that he does not very well understand the additional article proposed by Great Britain. It is conceivable only if the draft makes the granting of days of grace obligatory, but there is no reason for it, if it is added. to a rule which leaves the belligerent entirely free on this point. The English proposal literally applied would result in doing away with provisions, where a certain class of vessels is concerned, which aim to mitigate in a measure the severity of the right of confiscation. His Excellency Lord Reay replies that as regards vessels designated in advance for conversion, Great Britain intends to maintain the existing right of confiscation. Moreover, if Article 5 is adopted, he sees no disadvantage in omitting from Article 1 the phrase "and not designated in advance for conversion into war-ships." His Excellency Mr. Keiroku Tsudzuki supports the British proposal. Mr. de Beaufort would prefer to have Article 5 refer only to Articles 2, 3, and 4, and to make no allusion to Article 1. Since Article 1 expresses a vœu, Article 5, by referring to it, would imply that "it is not desirable." It is not the rôle of the Conference to express such a vœu. The President desires to have it clearly established that the sovereign judge of this designation shall be the belligerent State in whose port the merchant ship happens to be. His Excellency Lord Reay says that such is the opinion of Great Britain, subject to a subsequent decision by a prize court, and that according to his proposal the law applicable to vessels designated for conversion-that is to say, vessels designated to be taken into the service of the State-is existing international law. Mr. Louis Renault remarks that all vessels are capable of being used in time of war. His Excellency Lord Reay replies that it is only a question of such vessels as are designated in advance to be converted into war-ships. Mr. Louis Renault insists upon the equivocal nature of this designation. His Excellency Lord Reay says that there are countries which publish lists, but there are others which do not, so that such publication cannot be considered one of the conditions of conversion. It would be very difficult to make the exception more precise. [951] Mr. Fromageot explains that there are countries which publish lists of auxiliary vessels, which lists are, however, not accurate; others grant subsidies, but these subsidies also are often merely compensation for the obligation to assure postal service, and not for keeping the vessel ready for naval service; finally, in other countries all vessels are liable to be requisitioned and subsequently to be converted into war-ships. Captain Ottley mentions five vessels of the merchant marine of Great Britain, which are designated in advance for naval purposes. Two of these vessels belong to the Cunard Company. He adds that Captain BEHR can no doubt. name such vessels in the Russian merchant marine. Captain Behr does not deny this, but points out that Article 5 gives belligerents too much latitude. Mr. Kriege thinks that the provision in Article 5 is not sufficiently clear. It is difficult to discover the vessels that are designated in advance for naval use and what the intentions of the belligerent are on this point. His Excellency Mr. Keiroku Tsudzuki remarks that there may be cases which will give rise to doubt, but there are others which will be perfectly clear. As regards this entire class of vessels, Japan prefers to remain in statu quo. His Excellency Mr. Hammarskjöld thinks that in doubtful cases only the right of detention and requisition may be exercised. He asks himself whether to the mind of the British delegation the designation ought not to be proved by the existence of a contract or quasi-contract between the State and the owner of the vessel. In any event it would be desirable to have this idea set forth in the text. Mr. Kriege considers that it would be too difficult to draw up a provision in this sense. As a general thing these contracts are not made public. His Excellency Mr. Keiroku Tsudzuki states that as regards vessels receiving subsidies to be used for military purposes in time of war, the period of grace should never be anything but optional. Jonkheer van Karnebeek recalls that the expression "designated in advance" appeared first in the proposal1 which he filed at the preceding meeting. He therefore desires to explain what he figured the situation to be. It is a question of doubtful cases. In such cases the State to which the vessel belongs might bind itself not to effect conversion. The right of detention would therefore be exercised in the first instance, to be followed by confiscation if the engagement were not made. He believes that in this way the interests of the two belligerents might be equally safeguarded. Captain Behr points out that the real effect of Article 5 will be to make all the rules of the Convention inoperative, so far as vessels capable of conversion are concerned. His Excellency Lord Reay remarks that the term he used is that employed in the Netherland proposal. It seems to him that the words "designated in advance" give sufficient guarantees. Mr. de Beaufort replies that the engagement entered into by the State not to make use of the vessels was the condition joined to and the restriction placed upon the provisions of his project. [952] Mr. Kriege shows that the only question involved is that of an indemnity; the right of detention and of requisition leaves no reason for the distinction between vessels capable and those incapable of conversion. Mr. Guido Fusinato inquires whether the restriction in Article 1 applies likewise to Articles 2 and 3. If it does, the solution reached would be the opposite of that proposed. Mr. Fromageot is not personally in favor of the restriction contained in Article 1, but like Mr. FUSINATO is of the opinion that it bears only upon this article. 1 |