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BRINGING AND TEMPORARY STAY OF PRIZES IN NEUTRAL PORT,
A prize may only be brought into a neutral port on account
of unseaworthiness, stress of weather, or want of fuel or
provisions. It must leave as soon as the circumstances which justified its
entry are at an end. If it does not, the neutral Power must order it to leave at once; should it fail to obey, the neutral Power must employ the means at its disposal to release it
with its officers and crew and to intern the prize crew. A neutral Power must, similarly, release a prize brought
into one of its ports under circumstances other than those referred to in Article XXI.-Ilague Convention XIII, 1907, Articles 21 and 22.
The ships of war of His Swedish Majesty and those of the United States, and also those which their subjects shall have armed for war, may with all freedom conduct the prizes which they shall have made from their enemies into the ports which are open in time of war to other friendly nations; and the said prizes upon entering the said ports shall not be subject to arrest or seizure, nor shall the officers of the places take cognizance of the validity of the said prizes, which may depart and be conducted freely and with all liberty to the places pointed out in their commissions, which the captains of the said vessels shall be obliged to shew.
Treaty of Amity and Commerce concluded between the United States and
Sweden, April 3, 1873, Article XIX. Contra.
The vessels of war, public and private, of both parties, shall carry freely, wheresoever they please, the vessels and effects taken from their enemies, without being obliged to pay any duties, charges, or fees to officers of admiralty, of the customs, or any others; nor shall such prizes be arrested, searched, or put under legal process, when they come to and enter the ports of the other party, but may freely be carried out again at any time by their captors to the places expressed in their commissions, which the commanding officer of such vessel shall be obliged to shew.
Treaty of Amity and Commerce concluded between the United States and
Prussia, July 11, 1799, Article XIX. The vessel seized may not be taken to the port of a neutral Power except on account of some peril of the sea, or when the war vessel may be pursued by a superior enemy force.
When, on account of a peril of the sea, the war vessel has taken refuge with the vessel seized in a neutral port, they must quit the port as soon as possible, after the tempest has passed. The neutral State has the right and the duty to inspect the war vessel and the vessel seized during their stay in the port.
When the war vessel has taken refuge with the vessel seized in a neutral port, because it is pursued by a superior enemy force, the prize must be released.
Institute, 1882, pp. 56, 57.
Neutral Government restores property of its own subjects illegally seized.
In the case of prizes brought within a neutral port, the sovereign exercises jurisdiction so far as to restore the property of its own subjects, illegally captured; and this is done, says Valin, by way of compensation for the asylum granted to the captor and his prize.
Kent, vol. 1, p. 129.
Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality, until prohibited by the neutral power, bring her prize into a neutral port, and sell it. The neutral power is, however, at liberty to refuse this privilege, provided the refusal be made, as the privilege ought to be granted, to both parties, or to neither.
Kent, vol. 1, p. 132. Contra.
An opinion is expressed by some text-writers, that belligerent cruisers, not only are entitled to seek an asylum and hospitality in neutral ports, but have a right to bring in and sell their prizes within those ports. But there seems to be nothing in the established principles of public law which can prevent the neutral State from withholding the exercise of this privilege impartially from all the belligerent powers;.
The usage of nations, as. testified in their marine ordinances, sufficiently shows that this is a rightful exercise of the sovereign authority which every State possesses, to regulate the police of its own seaports, and to preserve the public peace within its own territory. But the absence of a positive prohibition implies a permission to enter the neutral ports for these purposes.
Dana's Wheaton, pp. 531, 532. Contra.
But while the neutral state may, by proclamation or otherwise, prohibit belligerent vessels with prizes or prisoners of war from entering its ports, the absence of any such prohibition implies the right to enter for the purposes indicated, and any vessel so entering neutral waters, retains her right of ex-territoriality, both with respect to her prisoners of war and her prizes. This question was raised in the port of San Francisco, California, in the case of the Russian vessel, The Sitka, a prize of the British navy, during the Crimean war. Halleck, p. 523; Cushing, Opin. U. S. Attys. Gen., vol. 7, p. 123.
* If a neutral consents, it [the prize] may be taken into a convenient port of that description. Such consent the neutral may give or withhold, as he judges best [but it is not now commonly permitted], unless some urgent cause, as a storm, or the vessel's condition, should render temporary sojourn there necessary. It will be the captor's right, if the neutral opens his ports, to carry there prizes taken from the neutral's own subjects as well as those belonging to any other nationality.
Woolsey, p. 244. But the practice with respect to property taken at sea has till lately been anomalous. The right of the captor to that which unquestionably belongs to his enemy is no doubt complete as between him and his enemy so soon as seizure has been effected; but as between him and a neutral state, as has been already seen, further evidence of definitive appropriation is required, and his right to the property of a neutral trader seized, for example, as being contraband goods or for breach of blockade, is only complete after judgment is given by a prize court. If therefore the belligerent carries his prize into neutral waters, without deposit in a safe place or possession during twenty-four hours in the case of hostile property, or without protection from the judgment of a prize court in the case of neutral property, he brings there property which does not yet belong to him; in other words, he continues the act of war through which it has come into his power. Indirectly also he is militarily strengthened by his use of the neutral territory; he deposits an encumbrance, and by recovering the prize crew becomes free to act with his whole force. Nevertheless, although the neutral may permit or forbid the entry of prizes as he thinks best, the belligerent is held, until express prohibition, to have the privilege
of placing his prizes within the security of a neutral harbour *. But it is now usual for the neutral state to restrain belligerents from bringing their prizes into its harbours, except in cases of danger or of want of provisions, and then for as short a time as the circumstances of the case will allow; and it is impossible not to feel an ardent wish that a practice at once wholesome and consistent with principle may speedily be transformed into a duty.
Hall, 642, 613.
A prize sailing under the war flag of her captors stands in principle, for the purpose of her reception into a neutral port, on the same footing as if she had originally belonged to her captors. But there is always the danger of a conflict on board her between her own crew and the prize crew, and, if she is accompanied by a ship of war, of a conflict between the two ships; and this furnishes a suflicient reason for a special objection being taken by neutrals to the reception of prizes in their ports. Indeed, even if the captors are so superior that no such danger practically exists, their retention of the prize is a continuous exercise of force over the captured crew, and no exercise of force between belligerents can in theory be permitted in neutral waters.
Westlake, vol. 2, pp. 242, 243.
It is possible that this regulation [by France in 1650 and 1681] of 24 hours' stay for prizes suggested the similar regulations in different countries for belligerent ships of war generally, but by many powers prizes are now treated as exceptions and ships of war are prohibited from taking them at all into their ports when neutral except in case of distress. Notably this is the case in Great Britain, Italy, Belgium, the Netherlands, Denmark and Japan. France, Spain and Brazil adhere to the older system of applying the rule of 24 hours' stay to ships with prizes and not to other ships of war, but they prohibit altogether the disposal of prizes or of articles coming out of them, a prohibition which is implicity contained in the refusal of entry to the prizes though often expressed in addition to it. Of course all this paragraph refers to prizes which have not been judicially condemned by the proper court or sold by its direction. Once that has been done the vessel is the property of the new owner and is no longer a prize.
Westlake. vol. 2, p. 243.
With regard to the admission of prizes, neutrals practised a scandalous laxity not more than a century ago. Then followed a period of varying restraints imposed by each neutral as it thought fit. In 1862 Great Britain excluded prizes altogether, and since then she has followed the same rule when neutral. But many other maritime countries have not deemed it expedient to go so far; and at the Hague Conference of 1907 great differences of opinion were made manifest. The powers could not agree to surrender their liberty of action by imposing on themselves the British rule. The utmost they were able to do was to lay down that the only reasons which justified a belligerent in bringing a prize into a neutral port were “unseaworthiness, stress of weather, a want of fuel or provisions."
Lawrence, p. 641.
A second case for the exercise of the duty of restoration arises when a prize is brought into a neutral port in an irregular manner, that is to say for other causes than unseaworthiness, stress of weather, want of fuel or provisions, and sequestration pending the decisions of a prize court. The neutral power must not sit down quietly under the disrespect shown by the irregularity. It is bidden - to use the means at its disposal” to release the vessel with its officers and crew and to intern the prize crew." The release is but a preliminary to the handing over of the ship to the authority of the state from which it was captured; and the duty of effecting it is, therefore, properly described as a duty of restoration.
Lawrence, p. 651. Neutral Powers may--although most maritime States no longer do it-allow prizes to be brought temporarily into their ports.
Oppenheim, vol. 2, p. 396. Exception.
The question requires attention as to whether a prize whose unseaworthiness is so great that it cannot be repaired, may be allowed to remain in the neutral port and be there sold after the competent Prize Court has condemned it. Since article 21 enacts that an admitted prize must leave the neutral port as soon as the circumstances which justified its entry are at an end, there is no doubt that it may remain if it can not by repair be made seaworthy. And there ought, consequently, to be no objection to its sale in the neutral port, provided it has previously been condemned by the proper Prize Court.
Oppenheim, vol. 2, p. 396. It was held by the Attorney General of the United States in 1828 that it is not a breach of neutrality to permit a vessel captured as prize to be repaired in the ports of the United States and put in condition to be taken to a port of the captor for adjudication, but that it would be a breach of neutrality to permit a port to be made a cruising station for a belligerent or a depot for his spoils and prisoners, and that considerations of expediency should lead a neutral sovereign to exercise his undoubted right of prohibiting the sale of a prize in his port.
2 Op. Atty. Gen., 86.
The Attorney General of the United States held in 1855, that a neutral nation might, if it saw fit, wholly admit or wholly exclude from its ports the prizes of belligerent war-vessels.
7 Op. Atty. Gen., 122.
In case of stress of weather, or other extreme necessity, the ship which has made the capture may, with the captured vessel, take refuge in the port of a neutral Power. In regard to the length and conditions of his stay in such a port, the Commander of the ship which has made the capture is bound to obey the regulations made on the subject by the Government of the place.
Russian Regulations, 1895, Article 22.
A prize may be taken into a neutral port only when the neutral power permits the bringing in of prizes. A prize may run into a neutral port always on account of unseaworthiness, heavy weather, or shortage of fuel or stores. In these latter cases she must leave the port again as soon as the cause which justified entering no longer exists.
German Prize Rules, 1909, Article 111.
In case of storm or absolute necessity the vessel which has made the capture may seek refuge, together with the captured vessel, in a port belonging to a neutral nation.
It shall be for the local government to decide as to the length and conditions of the stay.
Turkish Regulations, 1912, ch. 1, art. 5. A prize can not be taken into a neutral port except for reason of unseaworthiness, stress of weather, lack of fuel or provisions. It should depart as soon as the cause that justified its entrance has ceased to exist.
The captor will get into communication with a consul of France and will arrange with him respecting the subsequent destination of the prize.