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goods till the contrary is proved. The vessel herself may be destroyed at sea without the obligation of compensation which exists when a neutral prize is so disposed of in circumstances which do not amount to extreme necessity. But she does not lose the right of appeal to the International Prize Court.
Lawrence, p. 732. Merchant vessels of a neutral nationality are liable to confiscation as prizes in the following cases :
(4) When they have taken part in hostile operations of the enemy. Russian Regulations, 1897, Article 11.
More stringent rule regarding condemnation of cargo.
The cargo of merchant-vessels of a neutral nationality is liable to be confiscated as a prize:
(2) When the cargo is on board a vessel which is liable to confiscation
I because it has taken part in hostile operations of the enemy and it is not proved that such cargo belongs to Russians, or to neutrals who have taken no part in the infractions entailing confiscation.
Russian Regulations, 1895, Article 12. Neutral vessels in the military or naval service of the enemy, or under the control of the enemy for military or naval purposes, are subject to capture or destruction.
l'. S. Siltal War (odle, 1900, Article 16. By enemy ships are meant those enumerated below:
1. Ships used by the enemy. This rule applies even when the use is the result of intimidation. 2. Ships which sail under the enemy's flag or with a special license
a from the enemy.
Japanese Regulations, 1904, Article 6. If a ship is considered to have been equipped for the use of the hostile State for military purposes, that portion of her cargo which belongs to the owner of the ship shall be condemned.
Japanese Regulations, 1904, Article 46. 55. A neutral ship further renders unneutral service to the enemy
(a) when it directly takes part in the hostilities. Against such a ship, force of arms is to be used, until its unneutral procedure ceases;
(6) when it is under the order or control of an agent of the enemy government installed on board the ship;
(c) when it has been chartered by the enemy government;
(d) when it is actually and expressly designated for the transport of enemy troops or transmission of information in the enemy's interest.
This applies, in contrast to 48, not to one particular voyage, but on the contrary to a continued employment of the ship for the particular purpose. So long as such employment exclusively continues, unneutral service is rendered, even while the ship lying idle, neither carries troops, nor transmits information.
56. So long as circumstances named in 55 continue, the ship is to be treated as hostile (see 17 to 20).
The merchandise in the cargo belonging to the owner of the ship is also confiscable. Concerning the right to seize the confiscable part of the cargo without bringing in the ship, see 19.
German Prize Rules, 1909, Articles 55, 56. Treatment of crew and passengers of captured ship. If a ship is captured under
55a (taking part in hostilities), those persons who without being enrolled in the enemy forces have taken part in the hostilities or have exerted forcible resistance, may be dealt with according to the customs of war. The other persons of the crew will be made prisoners of war.
German Prize Rules, 1909, Article 99.
Treatment of crew of a captured vessel.
If a ship is captured * under 55, b, c, d, because of unneutral service, the master, officers and members of the crew—as far as they are of the enemy's nationality, will not be made prisoners of war, if they bind themselves on the strength of a formal written promise to engage in no service, during the period of the war, that may have any connection with the hostile undertakings of the enemy.
German Prize Rules, 1909, Article 100. You will likewise capture any neutral vessel: (1) If it takes a direct part in the hostilities;
(2) If it is under the orders or control of an agent placed on board by the enemy government;
(3) When it is laden in whole or in part by the enemy government;
(1) When it is exclusively engaged at the time either in the transport of enemy troops or in the transmission of intelligence in the interest of the enemy.
In the fourth case above specified, the vessel will be liable to confiscation and, in a general way, liable to the same treatment as if it were an enemy merchant ship.
You will notice that the transport of official dispatches can not be wrongful unless done specially; otherwise you will follow out the provisions of Article XVI below.
French Naval Instructions, 1912, secs. 61, 62, and 63. Article 46, Declaration of London, is substantially identical with section 26, Austro-Hungarian Manual, 1913.
The agents in Venezuela of an American line of steamers, plying between New York and Venezuelan ports and carrying the mails, ' having on several occasions been applied to by one or the other of the factions contending for power in that country for the use of their vessels for special service out of their regular itinerary, requested the adrice of Mr. Scruggs, then United States minister at Caracas. Mr. Scruggs replied: "The ships
being registered American 55565–18—28
and being besides under contract with the United States Government for carrying the mails, can not be chartered or otherwise used by anyone of the factions not contending for power in Venezuela without manifest prejudice to their neutral character and to the interests of the United States. It is hoped, therefore, that you will courteously but firmly refuse to allow them to be so used." In acknowledging receipt of the correspondence, the Department of State said: “ The Department regards your letter as, under the circumstances, discreet. Avoidance of all interference in local conflicts is very desirable on the part of a mail line, although the suggested service to the titular or de facto authorities might not in fact infringe any statute of the United States."
Moore's Digest, vol. vii, pp. 875, 876; Mr. Foster, Secretary of State, to
Mr. Scruggs, September 30, 1892, For. Rel. 1892, 627-628, enclosing a letter from the Secretary of the Treasury of September 23, 1892, expressing the opinion, in a case lately before him, that the chartering of an American steamer in Honduras by the President of that Republic for use there against rebels, and the granting her for the time being permission to fly the Honduranean flag, did not subject the vessel, or her owners or master, to any penalty or disability under the statutes of the United States. See, also, as to the case in Honduras, For. Rel. 1893, 149-152,
and supra, sec. 328, II, 1075. T'he “ Oropembo," 6 C. Rob., 430.-This was the case of an American vessel, ostensibly chartered by a merchant at Lisbon “ to proceed in ballast to Macao, and there to take a cargo to America” but afterwards, by his directions, fitted up for the reception of three military officers of distinction and two civil employees of the Batavian Gorernment, who had come from Holland to take passage to Batavia under appointment from the Government of Holland, then at war with Great Britain.
Held that the vessel was subject to condemnation. The court said: “I accede to what has been observed in argument, that number alone is an insignificant circumstance in the considerations, on which the principle of law on this subject is built, since fewer persons of high quality and character may be of more importance, than a greater number of persons of lower condition.”
The “ Commercen," 1 Wheaton, 382.-In this case the court stated that it was of opinion that if a Swedish vessel be engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must to all intents and purposes, be deemed a British transport.
The " Il art," . Wall., 559.-In this case, the court said: "Neutrals who place their vessels under belligerent control, and engage them in belligerent trade; or permit them to be sent with contraband cargoes. under cover of false destination, to neutral ports, while the real destination is to belligerent ports; impress upon them the character of the belligerent in whose service they are employed, and the vessels may be seized and condemned as enemy property."
See also, Darby v. The Erstern, 2 Dallas, 34; The Baigorry, 2 Wall., 474.
The " International," L. R. 3 A. and E. Courts, 321.-In this case the court said that under the municipal law of Great Britain, a ship employed by a foreign belligerent state to lay a submarine cable, the main object of which is, and is known to be, the subserving of the
military operations of the belligerent state, is employed in the military or naval services of that state; but if the main object of the cable is the subserving of the commercial interests of the state, the ship is not so employed.
The “ Industrie,” Russian and Japanese Prize Cases, vol. %, p. 323.---This was the case of a neutral vessel which was captured after cruising for some days in the neighborhood of the Japanese fleet. She was ostensibly employed in collecting news for a newspaper published by an American in China and had on board a German subject purporting to act as correspondent for the paper, but both he and the master in their evidence before the Court were disposed to accept the suggestions that the ship was under contract of sale to the Russian Government, and that any news obtained would be supplied to the Russian authorities. The Prize Courts mentioned as further suspicious circumstances that the newspaper in question was established at about the opening of the war, expressed Pro-Russian views, and was a small paper which apparently had not sufficient means to send out a ship for its own purposes.
Therefore the courts found that the vessel was, in fact, engaged in obtaining intelligence as to the Japanese fleet for the Russian Government and condemned her. The “ Quang-Nam,” Russian and Japanese Prize Cases, vol. 2,
, p. 343.—This was the case of a neutral ship captured in a locality where information as to the Japanese defenses might be obtained. She had previously delivered a cargo to the Russian fleet, had then gone to Shanghai without cargo and there taken on board a further quantity of coal, although she already had more than enough for a voyage to Manila, for which she ostensibly sailed from Shanghai, still without cargo. Her officers testified that they suspected she was chartered by the Russian Government.
Held that the facts showed that the vessel was chartered by the Russian Government and attempted to discover Japanese military secrets. The ship was condemned.
The “Australia,” Russian and Japanese Prize Cases, vol. 2, p. 373.—This was the case of a neutral ship which was chartered to carry goods belonging partly to the Russian Government and partly to Russian subjects, to ports on the Sea of Okhotsk and the Behring Sea. The cargo was intended in part for the Russian official depots, and in part for the inhabitants. A Russian official, whose duty it was to distribute the goods had been on board during the voyage, but was sick and on shore when the vessel was captured, which was before the expiration of the charter, and while she still had on board some of the cargo in question.
Held that on the above facts the Russian Government was the actual charterer and the ship and cargo were condemned.
PERSON BELONGING TO ARMED FOBCES OF ENEMY, FOUND ON BOARD NEUTRAL VESSEL,
MAI BE MADE PRISONER OF WAR.
Any individual embodied in the armed forces of the enemy
who is found on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for the capture of the vessel.-Declaration of London, Arti
Individuals enibodied in the armed military or naval forces of a belligerent may be on board a neutral merchant vessel when she is searched. If the vessel is subject to condemnation, the cruiser will capture her and take her to one of her own ports with the persons on board. Clearly the soldiers or sailors of the enemy state will not be set free, but will be treated as prisoners of war. Perhaps the case will not be one for the capture of the ship—for instance, because the master was unaware of the status of an individual who had come on board as an ordinary passenger. Must the soldier or soldiers on board the vessel be set free! That does not appear admissible. The belligerent cruiser can not be compelled to set free active enemies who are physically in her power and are more dangerous than this dr that contraband article. She must naturally proceed with great discretion, and must act on her own responsibility in requiring the surrender of these individuals, but the right to do so is hers; it has therefore been thought necessary to explain the point.
Report of committee which drafted Declaration of London. It is likewise agreed that the same liberty be extended to persons who may be on board a free ship, with this effect, that, although they be enemies to both or either of the parties, they shall not be taken out of the free ship, unless they are soldiers in the actual service of the said enemies.
Treaty of Amity and Commerce concluded between the United States and
Sweden, April 3. 1783, Article VII. If one of the contracting parties should be engaged in war with any other Power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent Powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free res. sels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other; and the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party, unless they be soldiers in actual service of such enemy.
Treaty of Amity and Commerce, concluded between United States and Prussia, September 10, 1785, Article XII.