Mr. Louis Renault says that the British proposal is very simple; its object is to preserve confiscation as regards vessels capable of conversion. Captain Ottley says that vessels of high speed and of stronger build are those that are rather designated for conversion and in practice receive a different kind of pass from that given vessels of lower speed. His Excellency Mr. Keiroku Tsudzuki points out that a vessel capable of conversion will convert itself after leaving port and will then exercise its right of search and of capture. That is why he intends to reserve freedom of action, in so far as vessels of this kind are concerned. Mr. Louis Renault replies that the right of detention and of requisition gives full guarantee to belligerents. His Excellency Lord Reay declares that vessels built with a view to war cannot escape the treatment to which war-ships are subjected. His Excellency Mr. Keiroku Tsudzuki says that belligerents cannot logically be refused the right of confiscating the vessels in question, when it is recognized that these same vessels have the right of search and of capture, and leaving our port to-day they will convert themselves to-morrow on the high seas into warships with the power of capturing our merchant ships. Mr. Louis Renault insists upon the necessity of voting on the substance of the British proposal. Mr. Heinrich Lammasch asks himself what will be the consequences of the adoption of the British proposal.1 Article 5 contains a provision of a general nature, but it would seem to be preferable to examine each particular case. By the application of Article 2 and of Article 5 combined, merchant ships capable of conversion may be confiscated. It might also be said that they may be requisitioned and that this may be done with or without an indemnity. In a word, if the consequences of the application of Article 5 were foreseen as regards each particular hypothesis, we might perhaps reach a correct solution. The President insists upon a decision. It seems to him that the Conference has a kind of moral obligation to take into account the practice that has heretofore been followed. Up to the present time belligerents have granted days of grace. It would be too bad if the Conference, instead of taking a step forward in this respect, should slip backwards. Again, it cannot be denied that it is very difficult to ascertain exactly what vessels are designated in advance to be converted into war-ships. That is why Article 1 gives the belligerent entire freedom to determine this for himself and permits him to detain and requisition, as he may wish. [953] The PRESIDENT proposes that the committee vote upon Article 1, omitting the clause relating to vessels that are designated in advance to be con verted. His Excellency Lord Reay states that under these conditions he will vote for Article 1, unless Article 5 is adopted. Mr. Louis Renault says that, if the committee votes afterwards on the draft as a whole, everybody's rights will be reserved. 2 Article 1 of the draft regulations elaborated by Mr. FROMAGEOT is adopted: Annex 24. * Annex 23. ARTICLE 1 When a merchant ship belonging to one of the belligerent Powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately, or after a reasonable period, and to proceed, after being furnished with a pass, direct to its port of destination or any other port indicated. The same rule should apply in the case of a ship which has left its last port of departure before the commencement of the war and entered a port belonging to the enemy while still ignorant that hostilities had broken out. His Excellency Mr. Keiroku Tsudzuki makes reservations with regard to Article 2; he cannot adopt it unless the question in Article 5 is decided in the affirmative. Article 2 is adopted in the following form: ARTICLE 2 A merchant ship unable, owing to circumstances of force majeure, to leave the enemy port within the period above contemplated, or which was not allowed to leave or was not granted a period within which to leave, cannot be confiscated. It is, however, liable to requisition, but subject to the obligation of restoring it after the war, if this is possible, and to compensate the owner for all loss incurred therefrom. His Excellency Lord Reay states that he reserves his vote on Article 2. ARTICLE 3 Enemy merchant ships which left their last port of departure before the commencement of the war and are encountered on the high seas while still ignorant of the outbreak of hostilities, cannot be confiscated. They are only liable to detention, to be requisitioned if occasion demands, as stated above, and even destroyed on payment of compensation. After these vessels have touched at a port in their own country or at a neutral port, they are subject to the laws and customs of maritime war. Mr. Kriege remarks that Article 3, not having obtained a majority of votes at the last meeting, was not adopted and remains omitted. The President replies that his Excellency Mr. RUY BARBOSA and Mr. FUSINATO, not having been present at the last meeting, were unable to vote. Their vote might perhaps have an influence on the result of the balloting. [954] Mr. Fromageot points out that Article 3 is not the same as that on which the committee voted at the last meeting. The new article contains a compromise proposal, the examination of which was, it would seem, reserved. It gives the right not only to detain and to requisition, but also to destroy. Moreover, it preserves the right to an indemnity. His Excellency Mr. Hammarskjöld thinks that in the committee votes can be reconsidered. By giving the right to destroy, the new article meets Mr. KRIEGE'S wishes and, together with Article 5 proposed by the British delegation, establishes a new situation on which the committee must vote. Mr. Guido Fusinato declares that the new article is not the same, its legal import is different; furthermore, he will vote for it. He remarks that Article 1 merely expresses a wish, while Articles 2 and 3 create obligations. His Excellency Mr. Ruy Barbosa does not agree with Mr. KRIEGE as to the effect of a tie vote, which cannot mean either rejection or adoption. In parliamentary assemblies, where there is a tie, the vote is postponed until a majority can be obtained. The President shows that the wording of Article 3 is new, that it establishes a new right, the right to destroy, and that it takes into account the various observations that were suggested by its former wording. His Excellency Mr. Ruy Barbosa says that this is a further reason for having a new vote. His Excellency Lord Reay thanks Mr. GUIDO FUSINATO for his effort in the interest of conciliation by the adoption of the revised Article 3, which lays down new principles. He also requests that he be permitted to reserve his vote, in order to secure instructions from his Government. The President replies that the members can vote with reservations. Mr. Kriege, agreeing to the discussion of the revised Article 3, states that this provision leaves the same inequality between the Powers as that resulting from the original reading. It would follow from the revised Article 3 that a Power which has not sufficient ports may destroy vessels, but would be obliged to pay indemnities. It would therefore be in a less favorable position than another Power which, having at its disposal a sufficient number of ports where it could bring in vessels, would be able to profit by the right conferred by this provision without paying an indemnity. His Excellency Mr. Keiroku Tsudzuki likewise is of the opinion that the maintenance of the right to an indemnity allows a situation of inequality to exist between the States. His Excellency Baron von Macchio asks that, if the committee supports the idea of the destruction of vessels, it be specified that the passengers, ship's papers, etc., shall be removed to a place of safety. Mr. Kriege has no objections to his Excellency Baron voN MACCHIO'S proposal. Mr. Fromageot remarks that the whole question is whether the owner or the belligerent shall bear the loss of the vessel. Mr. Kriege replies that the rule of the right of capture will be applied. [955] Mr. Fromageot thinks that the situation is not the same. The vessel that is liable to capture was aware of the state of war; on the contrary, the vessel in question believes that a state of peace exists. His Excellency Baron von Macchio insists upon the insertion of a provision concerning the passengers and ship's papers. The committee concurs in this view. His Excellency Baron von Macchio requests that the article make explicit mention of the right to an indemnity. The committee proceeds to vote on Article 3. Voting in favor of adoption: Austria-Hungary, Brazil, France, Italy, Netherlands, Russia, Serbia, Sweden. Voting against adoption: Germany, United States, Argentine Republic, and Japan. Not voting: Great Britain. The President proposes that the committee vote on Article 4 with the modifications indicated. Its text is as follows: ARTICLE 4 Enemy cargo on board the vessels referred to in the preceding articles is subject to requisition, with or without the ship, upon payment of compensation. Yeas: Germany, Austria-Hungary, Brazil, France, Italy, Japan, Netherlands, Russia, Serbia, Sweden. Nays: Argentine Republic. Not voting: Great Britain. Reserving its vote: United States. The committee passes to the proposal1 of Great Britain, which calls for the addition of a new Article 5, reading as follows: ARTICLE 5 These provisions shall not be applicable to enemy merchant ships designated in advance for conversion into war-ships. The President, in reading Article 5, points out the difficulties that arise in connection with the phrase "ships designated in advance to be converted into warships." It is his opinion that vessels capable of being converted into war-ships should not be understood as included in the formula of the British proposal. Mr. Fromageot believes that the difficulties springing from the present text could be eliminated by a simple modification of the title of the regula[956] tions which would be worded so as to apply to the treatment of enemy merchant ships that are designated to be converted into war-ships on the outbreak of hostilities. Mr. Louis Renault proposes that the committee vote on the principle, subject to the later formulation of a provision which will give it exact expression. His Excellency Mr. Ruy Barbosa says that the solution proposed by Mr. FROMAGEOT Would be the best if a mere question of form were involved, but there is a fundamental difficulty: we do not know what vessels are capable of being converted. Mr. Guido Fusinato says that there is one way to put an end to this state of ignorance: all that is necessary is that the different Powers consent to furnish each other with lists of the vessels that are capable of being converted. The President says that the committee has codified a principle which has been in existence in international practice since the Crimean war. An exception to this principle is proposed by the British delegation. What is now necessary is the formulation of a provision stating clearly that it has reference to an exception. Mr. Guido Fusinato says that he will vote for the text, if it is understood that the common law, as set forth in the preceding articles of the regulations, is applicable when there is no express designation in advance, as provided for in Article 5. Mr. Heinrich Lammasch thinks that the committee might follow, to a certain extent, the Netherland proposal 2 and be satisfied with the assurance given by the other belligerent that the doubtful vessel will not be converted. Under these conditions the vessel will be considered a merchant ship. Mr. Louis Renault thinks that such a provision is conceivable in the Netherland proposal, where the period is considered an obligation, but it is more 1 Annex 24. 2 Annex 22. difficult to explain it in a project whose starting point is the optional nature of the period of grace. The belligerent always has the right to detain all merchant ships; all the more reason why he has this right as regards vessels that appear to him to be suspicious. Mr. Heinrich Lammasch recognizes the difference between the situation contemplated by the Netherland proposal and that now under discussion. His proposal simply aims to restrict the effect of the English project.1 The President reads Article 4 as drawn up by Mr. FROMAGEOT at the request of the committee. Mr. Kriege asks whether the words "on payment of compensation" should not be added to this article. Mr. Fromageot sees no objection to this. Mr. Guido Fusinato asks whether it should not be stated that no indemnity will be allowed for goods constituting absolute contraband. Mr. Fromageot replies that there seems to be no difficulty in the way of mentioning contraband in this connection. This conception does not come into being until there is a state of war; and the vessel, under the hypothesis, left port before war broke out. [957] His Excellency Lord Reay asks that the word “enemy" be inserted before the word "cargo," so as to keep the article from being in conflict with the Declaration of Paris. Mr. Fromageot and his Excellency Mr. Keiroku Tsudzuki concur in this view. Regarding a remark by Mr. GUIDO FUSINATO that a prize court will have to decide whether a merchant ship is or is not designated to be converted into a warship, Mr. Kriege believes that these courts may not have such questions brought before them, since merely the right to detain and requisition, not the right to capture, is involved. It would not be otherwise unless the English proposal were accepted, according to which vessels designated to be converted into war-ships may always be confiscated in any place whatever. It is therefore true that these vessels would be subject to capture and would have to be passed upon by prize courts. His Excellency Lord Reay, for his part, is disposed to recognize that prize courts have the right to pass upon the possibility of converting the vessel. His Excellency Mr. Keiroku Tsudzuki remarks that according to the Japanese law prize courts pass upon the lawfulness of the capture of enemy merchant ships even at the beginning of hostilities. Replying to Mr. KRIEGE he says that if the English proposal giving the belligerent the right to capture an enemy merchant ship designated to be converted into a war-ship is adopted, the prize court will be competent to pass upon the question of fact concerning this designation. His Excellency Mr. Hammarskjöld concurs in Mr. FROM AGEOT's opinion and proposes that there be added to the articles adopted by the committee the following provision, which would take the place of Article 51 proposed by the British delegation: These regulations do not contemplate enemy merchant ships which have been designated in advance to be converted into war-ships. 1 Annex 24. |