The word "clearly" adds something to define the spirit of the Declaration of 1856.

Mr. Louis Renault says that as a matter of fact the word “clearly” has a broader meaning than the word “really.”

His Excellency Sir Ernest Satow would like information upon the meaning of the word "stationed." Is this word to be taken literally as meaning that the vessels must be anchored and must not maneuver? He recalls, in this connection, that Chief Justice COCKBURN declared that from the point of view of law a blockade is effective if the vessels are of such number and so disposed that violation of the blockade becomes dangerous, although certain vessels may succeed in running it.

His Excellency Mr. Keiroku Tsudzuki states that he concurs in the ideas set forth by his Excellency SIR ERNEST SATOW.

Mr. Louis Renault proposes that the word "manifestly" be used.

His Excellency Sir Ernest Satow says that his amendment reproduces the wording of the Declaration of Paris.

Captain Behr prefers the word "really." He thinks that the preservation of the word "clearly" would create a contradiction between the two paragraphs of Article 2. The danger might not be evident and yet real.

Mr. Guido Fusinato, replying to his Excellency Sir ERNEST SATOW. states that the word "stationed" does not imply anchored, but he believes, on the other hand, that it excludes blockade by cruisers. With regard to the word "clearly," Mr. GUIDO FUSINATO would consent to its being replaced by the word "manifestly." Furthermore, the words "clearly" and “manifestly” have the advantage of excluding blockade by mines, in conformity with a proposal which has already been made by the British delegation.

[965] His Excellency Sir Ernest Satow says that the Declaration of Paris refers only to vessels and excludes mines. He still prefers the word "really" and proposes that the word "maneuvering" be substituted for stationed."

Mr. Guido Fusinato considers that these various changes modify the substance of his proposal and tend to recognize blockade by cruisers.

His Excellency Sir Ernest Satow states that he accepts the principle of Article 2, if the word "stationed " does not mean "anchored."

His Excellency Mr. Keiroku Tsudzuki proposes that the words "disposed in such a way as to be substituted.

Mr. Guido Fusinato does not object to taking this formula into consideration.

His Excellency Mr. Keiroku Tsudzuki concurs in Captain BEHR's observations concerning the word "really."

His Excellency Sir Ernest Satow accepts the word "stationed."
A vote is taken on the word "clearly," which is adopted by a majority.
His Excellency Sir Ernest Satow then arises and reads the following

statement:

In view of the well-known difference between the two practices, which might be designated as the "continental system" and the "Anglo-American system," we do not believe it possible for the time being to reach a compromise. As his Excellency the President of the Fourth Commission has been good enough to point out, the question of blockade is not specifically

included in the program drawn up by the Government of Russia. Therefore, the Government of Great Britain was not required to give us instructions on this point before the meeting of the Conference. There is not time enough to examine this question carefully or to try to reconcile the divergent views of the two schools. In order to reach a compromise, concessions must be made by both sides, and we are perhaps not ready to do this. It appears therefore to our delegation that it would be preferable to suspend the discussion of this question.

Mr. Guido Fusinato asks his Excellency Sir ERNEST SATOW what is the exact import of the statement he has just read.

His Excellency Sir Ernest Satow replies that he has not received instruc tions from his Government permitting him to make the compromises which the question of blockade and the change in the practice that has been in vogue for more than a century seem to demand. It would take a long time to secure such instructions; it would be necessary to make trips back and forth to London, and to confer with the Admiralty. It is therefore preferable to postpone the question to the next Conference, not that the British delegation refuses to enter into its discussion, but it does not believe that an agreement can be reached.

Mr. Guido Fusinato does not believe that the committee has the power to postpone a question to a subsequent Conference; at most it can propose to the Commission to ask the Conference to be relieved of the study of questions relating to blockade.

Personally, he is ready to make any concessions calculated to remove the difficulties which the conclusion of an agreement on this subject appears to present, and he believes that before proposing suspension, the committee should assure itself that there is positively no hope of reaching an agreement. [966] Mr. Kriege recalls that by the terms of the Russian circular, the Conference is called upon to discuss the question of the rights and duties of neutrals at sea. Given the fact that a blockade imposes upon neutrals duties that are very important from this point of view, the question of blockade enters into the scope of the program of the Conference.

The President says that in the month of June the distribution of the questions among the various Commissions by the Bureau of the Conference brought forth no protests and that he has never asserted that the question of blockade was outside of the program of the Imperial Government and of the Conference. Mr. Louis Renault thinks that the Conference alone has power to relieve the Commission of its duty to discuss the question of blockade.

The President considers that in these circumstances it would seem to be useless to continue the discussion in the committee until the matter has been referred to the Commission.

[967]

SIXTH MEETING

AUGUST 21, 1907

His Excellency Mr. Martens presiding.

The President remarks that the minutes of the fifth meeting have just been distributed and consequently they cannot be approved at to-day's meeting.

With regard to the minutes of the fourth meeting, his Excellency Baron von Macchio says that the provisions relating to passengers and ship's papers, which the committee adopted on his motion, do not appear in the text of Article 3, which was voted at the last meeting. He therefore asks that a second paragraph be inserted, reading as follows:

It is of course understood that the belligerent shall ensure the safety of the passengers and the security of the ship's papers.

As for the present paragraph 2 of Article 3, it will become paragraph 3. Mr. Fromageot (reporter) replies that he has prepared the following formula which gives satisfaction to his Excellency Baron von MACCHIO's desire and which will be distributed at once: conclude the first paragraph with the words, "and with the obligation that the safety of the passengers and the preservation of the ship's papers be provided for."

His Excellency Baron von Macchio approves the reading proposed by Mr. FROMAGEOT.

The President recalls that the order of business calls for a vote on the proposal concerning the crews of captured neutral vessels; but the delegation of Russia, not having received instructions, requests a postponement to the next meeting of this vote, as well as of the vote on Mr. HEINRICH LAMMASCH's proposal. The members of the committee will receive to-day the printed text of this last proposal, which was drawn up in conjunction with his Excellency Sir ERNEST SATOW.

The program then calls for a discussion of the exemption of fishing boats from capture. This question is the subject of two proposals-one by Rear

Admiral HAUS1 and the other by Lieutenant Commander IVENS FERRAZ.2 [968] It was likewise the subject of a speech by the first delegate of the United States, who alluded to a decision by Mr. Justice GRAY, in which the question was examined in its various aspects.3

The Portuguese proposal, being the most extensive and detailed, will serve as the basis of discussion.

Lieutenant Commander Ivens Ferraz explains the arrangement of his proposal. Article 1 contains an exception to the common law in favor of fishing

1 Annex 50.

2 Annex 49.

See annex to the minutes of the twelfth meeting of the Fourth Commission.

boats. Article 2 restores the application of the common law as regards vessels used in fishing on a large scale, and Article 3 enumerates the cases in which the immunity ensured to fishing boats by Article 1 does not apply. It seemed to be preferable, however, to condense these various proposals into a single

article.

The President does not believe it possible for the committee to discuss a new article without having the printed text before it.

Mr. Louis Renault requests that this text be dictated.

Mr. Fromageot dictates to the committee the revised Article 1 of the Portuguese proposal:

Vessels actually engaged in coastal fishing operations within the usual zone or engaged in small coastal business are exempt from capture.

This exemption ceases to apply whenever there is reason to suspect any participation in hostilities, such as refusal to obey the injunctions of a belligerent forbidding temporarily their approaching a certain zone, transportation of contraband, espionage, the fact of being armed or of having on board apparatus or signals which are not in use amongst fishermen.

His Excellency Sir Ernest Satow agrees to the discussion of this article.
The President notes the committee's concurrence therein.

Lieutenant Commander Ivens Ferraz explains that the Portuguese proposal does not contemplate any special protection of the fishing industry, but has solely a humanitarian object-the protection of a class of poor people who deserve the consideration of the Conference and who should not be deprived of their means of livelihood. To subject coastal fishing boats to the right of capture is an attack on an industry of a very limited sphere of action, the destruction of which would have no effect upon the economic life of the country as a whole.

The Portuguese proposal contemplates cases in which this privilege will be suspended. In the first place, there is the fear of their participation in war operations. It may be feared, for example, that by remaining in a certain spot, fishermen may obtain information which they will use to the benefit of their country, or that they are carrying implements of war. If they do not, in such cases, obey the injunctions of the belligerent, they may lose the benefit of their exemption. As for the carrying of implements of war, the transportation of contraband, or engaging in espionage, long explanations do not seem to be necessary. The mere discovery of the fact would mean confiscation.

Paragraph 1 speaks of the "usual zone." This term aims to give fishing vessels the privilege indispensable in certain countries of going beyond the bounds of their territorial waters.

The words "or in small . . . business" correspond with those used in Rear Admiral HAUS's proposal. They refer to boats that carry fish. [969] His Excellency Baron von Macchio is in perfect agreement with the

Portuguese delegation and thanks Commander IVENS FERRAZ for having taken into account the Austro-Hungarian proposal." He thinks, however, that it is necessary to mention more explicitly boats that are used in rural service, that is to say, in the transportation of agricultural products. It is, moreover, indispensable to stipulate that every requisition imposed by military necessities shall

be subject to an indemnification fixed in conformity with the rules in force in land warfare.

Mr. Louis Renault points out that it follows from the explanations made by Lieutenant Commander IVENS FERRAZ that the proposal was inspired above all by a humanitarian impulse. The fishing industry has indeed a very limited sphere of action and its destruction can have no effect on the economic life of the country. It would therefore be a useless injury. This conception has influenced the drafting of the article. It has resulted in extending the privilege of immunity, not only to boats that are engaged in coastal fishing, but also to those which go out to sea beyond their territorial waters. Such boats may be of considerable tonnage and propelled by steam. We have here a series of consequences upon which certain explanations are necessary.

Again, the word "actually" in paragraph 1 is not very clear. Boats may go a distance of seven or eight kilometers to fish. While the vessel is on its way to its destination or is returning therefrom, it is not "actually" engaged in fishing, and yet it may not be seized.

It would seem also that paragraph 2 needs revision. It is quite true that capture may take place if the fishing boat participates in hostilities, but it would seem to be an exaggeration to say that the fear of such participation gives of itself the right to capture. Perhaps it would be desirable also to fix the ton.. nage of the vessels that shall benefit from the exemption from the right of capture, and to state that they must always, under penalty of being captured, obey the injunctions of the squadron commanders.

His Excellency Sir Ernest Satow remarks that participation in hostilities may be the act of an individual who, through patriotism, engages in espionage or in the transportation of contraband; but the fact of having on board an implement of war, such as a torpedo, cannot be the fact of an individual acting on his own initiative without the complicity of his Government. Now, it cannot be admitted that a Government may employ a fishing boat as a torpedo boat. Such a proceeding would result in compelling its adversary not to spare any of these boats. It would therefore not be inadvisable to forbid Governments to make use of these boats for military purposes.

His Excellency Mr. Keiroku Tsudzuki does not admit that such a prohibition can apply to junks, which are used in coastal fishing but which can also be used for the transportation of troops.

His Excellency Sir Ernest Satow replies that he refers only to the case of a fishing boat's being used as a torpedo boat.

Mr. Fromageot inquires whether the provisions concerning the conversion of merchant ships into war-ships would not be a better place for the prohibition of which his Excellency Sir ERNEST SATOW Speaks.

His Excellency Sir Ernest Satow replies that he has in mind only coastal fishing boats.

[970] Mr. Guido Fusinato asks if the fact that a State has used a fishing boat as a torpedo boat will deprive all such boats of the benefit of exemption. His Excellency Sir Ernest Satow supposes that an ironclad is destroyed by a torpedo launched by a fishing boat. It is quite certain that the belligerent will take every precaution to prevent the recurrence of such an act. That is why it is not inadvisable to stipulate the prohibition as a corollary to the exemption.