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DESTRUCTION OF CAPTURED NEUTRAL VESSELS FORBIDDEN-EXCEPTIONS TREATMENT
OF PERSONS AND DOCUMENTS ON BOARD,
A neutral vessel which has been captured may not be de
stroyed by the captor; she must be taken into such port as is proper for the determination there of all questions con
cerning the validity of the capture. As an exception, a neutral vessel which has been captured
by a belligerent warship, and which would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the safety of the warship or to the success of the operations in which she is engaged
at the time. Before the vessel is destroyed all persons on board must be
placed in safety, and all the ship's papers and other documents which the parties interested consider relevant for the purpose of deciding on the validity of the capture must be taken on board the warship.--Declaration of London, Articles 48, 49, and 50.
Comment on general subject.
The destruction of neutral prizes was a subject comprised in the program of the second peace conference, and on that occasion no settlement was reached. It reappeared in the program of the present conference, and this time agreement has been found possible. Such a result, which bears witness to the sincere desire of all parties to arrive at an understanding is a matter for congratulation. It has been shown once more that conflicting hard-and-fast rules do not always correspond to things as they are, and that if there be readiness to descend to particulars, and to arrive at the precise way in which the rules have been applied, it will often be found that the actual practice is very much the same, although the doctrines professed appear to be entirely in conflict. To enable two parties to agree, it is first of all necessary that they should understand each other, and this frequently is not the case. Thus it has been found that those who declared for the right to destroy neutral prizes nerer claimed to use this right wantonly or at every opportunity, but only by way of exception; while, on the other hand, those who maintained the principle that destruction is forbidden, admitted that the principle must give way in certain exceptional cases. It therefore became a question of reaching an understanding with regard to those exceptional cases to which, according to both views, the right to destroy should be confined. But this was not all; there was need for some guaranty against abuse in the exercise of this right; the possibility of arbitrary action in determining these exceptional cases must be limited by throwing some real responsibility upon the captor. It was at this stage that a new idea was introduced into the discussion, thanks to which it was possible to arrive at an agreement. The possibility of intervention by a court of justice will make the captor reflect before he acts, and at the same time secure reparation in cases where there was no reason for the destruction.
Such is the general spirit of the provisions of this chapter. Comment on Article 48.
The general principle is very simple. A neutral vessel which has been seized may not be destroyed by the captor; so much may be admitted by everyone, whatever view is taken as to the effect produced by the capture. The vessel must be taken into a port for the determination there as to the validity of the prize. A prize crew will be put on board or not, according to circumstances. Comment on Article 49.
The first condition necessary to justify the destruction of the captured vessel is that she should be liable to condemnation upon the facts of the case. If the captor can not even hope to obtain the condemnation of the vessel, how can he lay claim to the right to destroy her?
The second condition is that the observance of the general principle would involve danger to the safety of the warship or to the success of the operations in which she is engaged at the time. This is what was finally agreed upon after various solutions had been tried. It was understood that the phrase compromettre la securité was syfonymous with mettre en danger le navire, and might be translated into English by: Involve danger. It is, of course, the situation at the moment when the destruction takes place which must be considered in order to decide whether the conditions are or are not fulfilled. For a danger which did not exist at the actual moment of the capture may have appeared some time afterwards.
Report of committee which drafted Declaration of London.
but in this and all other cases of just detention, the vessel detained shall be sent to the nearest convenient and safe port for trial and judgment according to law.
Treaty of Peace, Amity, Navigation and Commerce concluded between the
United States and New Granaila (Colombia), December 12, 1846, Article
It is further agreed that in all cases the established courts for prize causes, in the country to which the prizes may be conducted, shall alone take cognizance of them. And whenever such tribunals of either party shall pronounce judgment against any vessel or goods or property claimed by the citizens of the other party, the sentence or decree shall mention the reasons or motives upon which the same shall have been founded, and an authenticated copy of the sentence or decree and of all the proceedings in the case, shall, if demanded, be delivered to the commander or agent of said vessel without any delay, he paying the legal fees for the same. Treaty of Peace, Amity, Navigation and Commerce concluded between the
l'nited States and New Granada (Colombia), December 12, 1846, Article
It is further agreed that in all cases the established courts for prize causes in the country to which the prizes may be conducted shall alone take cognizance of them; and whenever such tribunals of either party shall pronounce judgment against any vessel, or goods or property claimed by the citizens of the other party, the sentence or decree shall mention the reasons or motives on which the same shall have been founded, and an authenticated copy of the sentence or decree and of all the proceedings in the case shall, if demanded, be delivered to the commander or agent of said vessel without any delay, he paying the legal fees for the same.
Treaty of Peace, Friendship. Commerce, and Navigation concluded between
the United States and Bolivia, May 13, 1858, Article XXIV.
but in this, as well as in all other cases of just detention, the vessel detained shall be sent to the nearest convenient and safe port for trial and judgement according to law.
Treaty of Peace, Friendship, Commerce, and Navigation concluded between
the United States and Bolivia, May 13, 1858, Article XIX. The vessel seized shall be taken to the nearest port of the captor State or to a port of allied Power where a court of inquiry may be found to examine into the matter of the vessel seized.
Institute, 1882, p. 56. In the following cases the captor will be permitted to burn or sink the enemy vessel which has been seized, after having sent the persons found on board to the warship, and discharged as much as possible of the cargo, and after the commander of the captor vessel has taken charge of the ship's papers and important objects for use in judicial proceedings and settlement of claims of owners of the cargo for damages and interest :
1. When it is impossible to keep the vessel afloat, on account of its bad condition, in a rolling sea :
2. When the vessel sails so poorly that it can not follow the war vessel and may easily be retaken by the enemy;
3. When the approach of a superior force of the enemy arouses the fear that the vessel may be retaken;
4. When the war vessel is unable to put a sufficient crew upon the vessel which has been seized without diminishing too greatly the crew necessary to its own safety:
5. When the port to which it would be possible to take the vessel which has been seized is too far away.
A procès-rerbal shall be drawn up concerning the destruction of the vessel which has been seized and the grounds therefor; this procès-verbal shall be transmitted to the superior military authority and to the nearest court of inquiry, and the latter shall examine, and if necessary complete, the documents relating thereto and transmit them to the prize court.
Institute. 1882, p. 5.5. No merchant vessel, or any cargo belonging to an individual, enemy or neutral, no shipwrecked vessel, or vessel which has run aground or been abandoned, or any fishing vessel, may be seized as
prize and condemned except by virtue of a decision of courts of prize and because of acts forbidden by the present regulations.
Institute, 1887, p. 75. When a prize is taken at sea, it must be brought, with due care, into some convenient port, for adjudication by a competent court; But by the modern usage of nations, neither the twenty-four hours' possession, nor the bringing the prize infra praesidia, is sufficient to change the property in the case of a maritime capture. A judicial inquiry must pass upon the case, and the present enlightened practice of commercial nations has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favor of neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor; and the purchaser must be able to show documentary evidence of that fact, to support his title. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It can not be alienated or disposed of, but the possession of it by the government of the captor is a trust for the benefit of those who may be ultimately entitled. This salutary rule, and one so necessary to check irregular conduct and individual outrage, has been long established in the English admiralty, and it is now everywhere recognized as the law and practice of nations.
Kent, vol. 1, pp. 111, 112. The duty of the lawful cruiser in time of war, on stopping a vessel, is to make such examination as the circumstances permit at the time, and to release the vessel if there is not probable cause for a fuller examination by the prize tribunal. If the evidence disclosed leaves such well-founded suspicion as would influence a mind of reasonable intelligence and fairness, the duty of the cruiser is to send the vessel into a convenient port of his own country, for such an examination as can only be satisfactorily made in port, and by means in the possession of a prize court.
Note 186, Dana's Wheaton. After such an examination as the commander of a cruiser can make, his duty, as against neutrals, is to decide between two courses: He must either release the vessel absolutely, with her cargo, papers, passengers, and all entire; or he must complete his capture, make her a prize, and send her in for adjudication.
Dana's Wheaton, Note 186. Necessity will excuse the captor from the duty of sending in his prize. If the prize is unseaworthy for a voyage to the proper port, or there is impending danger of immediate recapture from an enemy's vessel in sight, or if an infectious disease is on board, or other cause of a controlling character, the law of nations authorizes a destruction or abandonment of the prize, but requires all possible preservation of evidence, in the way of papers and persons on board. And, , even if nothing of pecuniary value is saved, it is the right and duty
of the captor to proceed for adjudication in such a case, for his own protection and that of his government, and for the satisfaction of neutrals.
Note 186, Dana's Wheaton. It is incumbent on the captor to bring his prize, as speedily as may be consistent with his other duties, within the jurisdiction of a court competent to adjudicate upon it. But, if prevented by imperious circumstances from bringing it in, he may be excused for taking it to a foreign port, or for selling it, provided he afterwards reasonably subjects its proceeds to the jurisdiction of a competent court of prize.
Halleck, p. 729. It is the first duty of the captor, says Mr. Wildman (ii., 176), to bring in his prize for adjudication, but “if this is impossible, his next duty is to destroy the enemy's property: if it be doubtful whether it be the enemy's property, and impossible to bring it in, no such obligation arises, and the safe and proper course is to dismiss." Of course, if this doctrine, based on English decisions, be true, destruction of neutral ships or property by mistake must be made good by the cruiser's government.
The French, while the Berlin and Milan decrees were in force, burnt a number of neutral American vessels having on board merchandise of British origin. Probably the custom, at least in regard to hostile ships captured, is an ancient one.
The whole practice is a barbarous one, and ought to disappear from the history of nations.
Woolsey, pp. 242, 243.
He [the captor] must bring in the captured property for adjudication, and must use all reasonable speed in doing so. In cases of improper delay, demurrage is given to the claimant, and costs and expenses are refused to the captor. It follows as of course from this rule,—which itself is a necessary consequence of the fact that property in neutral ships and goods is not transferred by capture,--that a neutral vessel must not be destroyed; * If a vessel is not in a condition to reach a port where adjudication can take place, but can safely be taken into a neutral port, it is permissible to carry her thither, and to keep her there if the local authorities consent. In such case the witnesses, with the ship's papers and the necessary affidavits, are sent in charge of an officer to the nearest port of the captor where a prize court exists.
In the course of bringing in, the captor must exercise due care to preserve the captured vessel and goods from loss or damage; and he is liable to penalties for negligence. For loss by fortune of the sea he is of course not liable.
Hall, pp. 762, 703. Great Britain, which had taken that ground in her correspondence with Russia, submitted at the Hague in 1907 a proposal to declare that “the destruction of a neutral prize by the captor is prohibited.