Imágenes de páginas


It is also agreed, in like manner, that the same liberty shall be extended to persons who are on board a free ship, with this effect, that although they be enemies to both or either party, they are not to be taken out of that free ship unless they are officers and soldiers and in the actual service of the enemies.

Treaty of Peace, Amity. Navigation and Commerce concluded between the United States and New Granada (Colombia), December 12, 1846, Article XV.

The like neutrality shall be extended to persons who are on board a neutral ship with this effect, that although they may be enemies to both or either party, they are not to be taken out of that ship unless they are officers or soldiers, and in the actual service of the enemies.

Treaty of Peace, Friendship. Commerce and Navigation concluded be

tween the United States and Bolivia, May 13, 1858, Article XVI. It is also agreed, in like manner, that the same liberty be extended to persons who are on board of a free ship; and they shall not be taken out of that free ship unless they are officers or soldiers, and in the actual service of the enemy:

Treaty of Commerce and Navigation concluded between the United States and Italy, February 26, 1871, Article XVI, · The only persons on board the ship which has been seized who shall be considered prisoners of war are those who form part of the military force of the enemy, and those who have assisted the enemy or are suspected of having assisted the enemy.

Institute, 1882, pp. 55, 56. Of the persons found on board the vessel seized, the members of the enemy military force are immediately sent as prisoners of war to the military authorities of the same or the nearest town, and these authorities place them at the disposition of the court to be heard when demanded by it. Those who have assisted the enemy or are suspected of having assisted the enemy are delivered to the military authorities. The other persons found on board the vessel remain there under surveillance during the period fixed by the court, if and so long as the court of inquiry deems their depositions necessary. If the vessel is sold or destroyed in the port of arrival, those who would have been obliged to remain on board the vessel shall remain under arrest by the authorities until a decision of the court. When the inquiry has been concluded the captain or master and the supercargo are not set at liberty unless bond judicio sisti is furnished.

Institute, 1883, p. 60. * *

troops transported to the enemy shall be made prisoners.

Institute, 1887. p. 77. * *

the persons and troops illegally transported shall be made prisoners.

Institute, 1897, p. 143. Contra.

This celebrated case (the Trent Case) can be considered as having settled but one principle, and that had substantially ceased to be disputed question; viz., that a public ship, though of a nation at war,

cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persone. It is to be borne in mind that Earl Russell, in his demand, makes no reference to the diplomatic character of Mason and Slidell, or to any special right or exemption in this case. He presents the naked case, that a United States ship of war had taken persons from an innocent British neutral vessel at sea. To his reclamation against such a proceeding, the United States were only too glad to assent; considering it as a triumph of their own principles, secured by their own decision, made against a strong national feeling in the particular case, on the demand of the only power that had ever contended for the opposite doctrine.

Beyond this, the Trent case settles nothing. Mr. Seward considered the persons to be contraband of war, from the nature of their office and the position of the power they assumed to represent. This was denied by Earl Russell, and left unsettled. Mr. Seward considered that the termini of the voyage of the Trent were immaterial, as the destination of the persons was certain, and she knowingly took them on their way. Earl Russell contends that the neutral termini were conclusive in her favor; and this was left unsettled. Earl Russell claimed for private mail-vessels no immunity, but only a more careful consideration. Mr. Seward restores the persons, on the ground that, if a captor relinquishes his prize without necessity, he cannot take persons or cargo out of her as contraband,-a principle well established in the law of nations. But the ground on which the British Government put their demand, that persons could not be taken out of a neutral vessel by a bellig. erent, whatever the claim upon them,-must be considered as settling that doctrine in favor of the historical American position, as there is now no nation to call it in question.

Note 228, Dana's Wheaton. Contra.

If on the other hand belligerent persons, whatever their quality, go on board a neutral vessel as simple passengers to the place whither she is in any case bound, the ship remains neutral and covers the persons on board with the protection of her neutral character.

Hall, p. 708. Contra.

When the persons travel as passengers in the ordinary course, it must be remembered that the customary right to capture even military officers has not been accompanied by any relaxation of the duty to send every neutral ship that is interfered with in for adjudication, and that to arrest a passenger liner and send her in for adjudication would be an intolerable nuisance. The duty referred to cannot properly be relaxed, for those who capture the men cannot be allowed to be judges in their own cause, and an adjudication on the ship is the only means of submitting their act to legal decision.

Westlake, vol. 2, pp. 303, 304. Explanation of rule.

The general rule of International Law is that no person can be removed at sea by a belligerent war-ship from a neutral vessel which is herself free from capture. But an exception was made in this

[ocr errors]




case, in order that "large passenger steamers under a neutral flag should, if possible, be freed from the costly inconvenience of being taken into a prize court and there detained, perhaps for a prolonged period, merely because a few individuals forming part of the armed forces of a belligerent, but whose military status was unsuspected by the owners or captain of the vessel, were among her passengers.”

Lawrence, p. 729; Report of British delegation at the Naval Conference, for which see British Parliamentary Papers, Miscellaneous, No. 4 (1909), p. 98. Interpreted to include despatches.

The case of despatches found on board is not mentioned by article 47, but there ought to be no doubt

that the old customary rule, that, although the vessel may not be condemned because there is no ground for capture, any despatches for the enemy found on board may, in analogy with article 47, be confiscated, provided such

, despatches are not part of the postal correspondence carried on board.

Oppenheim, vol. 2, p. 528. According to the practice hitherto prevailing, a neutral vessel captured for carriage of persons or despatches in the service of the enemy could be confiscated.

And if the vessel was not found guilty of carrying persons or despatches in the service of the enemy, and was not therefore condemned, the Government of the captor could nevertheless detain the persons as prisoners of war and confiscate the despatches, provided the persons and despatches concerned were in any way of such a character as to make a vessel, which was cognisant of this character, liable to punishment for transporting them for the enemy.

Oppenheim, vol. 2, pp. 527–528.
Contra, as to British and American practice.

According to the British and American practice, as well as that of some other States, which has hitherto prevailed, whenever a neutral vessel was stopped for carrying persons or despatches for the enemy, these could not be seized unless the vessel were seized at the same time. The release, in 1861, during the American Civil War, of Messrs. Mason and Slidell, who had been forcibly taken off the Trent, while the ship herself was allowed to continue her voyage, was based, by the United States, on the fact that the seizure of these men without the seizure of the vessel was illegal.

Openheim, vol. 2, p. 530. Explanation of rule.

Since, according to the Declaration of London, a neutral vessel rendering unneutral service of any kind is liable to be confiscated, it is evident that in such a case the enemy persons and despatches concerned may not be taken off the vessel unless the veşsel herself is seized and brought into a port of a Prize Court. However, article 47 provides that any member of the armed forces of the enemy found on board a neutral merchant vessel may be taken off and made a prisoner of war, although there may be no ground for the capture of the vessel. Therefore, if a vessel carries individual members of the armed forces of the enemy in the ordinary course

of her voyage, or if she transports a military detachment of the enemy and the like without being aware of the outbreak of hostilities, the members of the armed forces of the enemy on board may be seized, although the vessel herself may not be seized, as she is not rendering unneutral service.

Openheim, vol. 2, pp. 530-531.
Persons who are contraband of war shall be made prisoners.

By persons who are contraband of war are meant the enemy's troops and all other persons who are being carried for the purpose of being engaged in the military affairs of the hostile state.

Japanese Regulations, 1904, articles 42 and 11. 53. Every person enrolled in the forces of the enemy who is found on board a merchant ship may be made a prisoner of war, even when the ship herself is not liable to capture.

54. Persons who without being enrolled in the enemy forces assist the operations of the enemy directly during the voyage (18 b) may be taken prisoner only upon simultaneously bringing in the ship.

German Prize Rules, 1909, Articles 53 and 54. Even when the vessel can not be captured, you may make a prisoner of war of any individual embodied in the armed forces of the enemy who is found on board a neutral merchant vessel.

You will first ask the master of the vessel to hand over these individuals to you. In case of refusal on his part, you will go further and make them prisoners of war. In case of resistance on the part of the personnel of the ship, you will capture the ship.

Religious, medical, and hospital personnel of the enemy found on board a neutral merchant vessel may not be made prisoners of war; but before leaving such personnel at liberty, you will assure yourself carefully of the reality of their character. In case of doubt, you may detain them in the way above indicated until proof of such character is established.

French Naval Instructions, 1912, secs. 59 and 60. Article 47, Declaration of London, is substantially identical with section 10, Austro-Hungarian Manual, 1913.

France 2. Italy, the " Manoubacase-Permanent Court of Irbi. tration at The Hague, 1913.During the war between Italy and Turkey, in 1912, a French mail steamer, The Manouba, on a trip from Marseilles to Tunis was stopped by an Italian man-of-war, which ascertained the presence on board of twenty-nine Turkish passengers,

Accordingly, in January. 1912, during the Turco-Italian War, the Italian gunboat Volturno, after having overbauled, in the Red Sea, the British steamer Africa going from Ilodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleren other Turkish officers. Although the Declaration of London is not yet ratified by Great Britain, she did not protest. The case of the Manouba ought likewise to be mentioned here. This French steamer, which plies between Marseilles and Tupis, was stopped on January 16, 1912, by an Italian cruiser in the Mediterranean, and twenty-nine Turkish passengers, who were supposed to be Turkish officers on their way to the theatre of war. were forcibly taken off and made prisoners. On the protest of France, the captives were handed over to her in order to ascertain whether they were members of the Turkish forces, and it was agreed between the parties that the case should be settled by an arbitral award of the Permanent Court of Arbitration at tbe Hague, Italy asserting that she had only acted in accordance with article 47 of the Declaration of London,

suspected of belonging to the Turkish army. The Manouba was captured and taken into an Italian port, when the captain was summoned to deliver up the passengers in question but refused to do so, whereupon the vessel was seized. Afterwards, upon the request of the French vice-consul, the captain surrendered the passengers and the vessel was released.

The Court held: (1) that inasmuch as the Italian naval authorities had, at the time of stopping the Manouba, sufficient reason to believe that some at least of these passengers were soldiers enlisted in the enemy's army, they had a right to remove them from the vessel.

(2) That inasmuch as there was no reason for calling in question the good faith of the owner or captain of the Manouba, the Italian authorities were not within their rights in capturing the vessel and bringing her to the Italian port, except in the case of arrest after the captain had refused a summons to surrender these passengers, which summons was not, as a matter of fact, made before the capture, and

(3) That as the summons for the surrender of the passengers, made in the Italian port, was not obeyed, the Italian authorities had the right to take the necessary measures of compulsion, and to detain the steamer until the delivery of the Turkish passengers; that the seizure effected was legal only to the extent of temporary and conditional sequestration.

The Court decreed :

"The Royal Italian Government shall be obliged within three months from the present award, to pay to the Government of the French Republic the sum of four thousand francs, which, after deducting the amount due the Italian Government for guarding The. Manouba is the amount of the losses and damages sustained by reason of the capture of the “ Manouba " and its convoy to Cagliari, by the private individuals interested in the vessel and its voyage.”

« AnteriorContinuar »