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The captor ought to release every neutral ship which he cannot bring before a prize court." The United States submitted a proposal to the same effect. The Russian counter-proposal was as follows:
Believing that the absolute prohibition to destroy neutral prizes would place powers having no maritime bases except on their home coasts in a position of inferiority, and being of opinion that every international agreement ought to be founded on the principle of reciprocity and equal opportunity, the Imperial Russian delegation submits to the consideration of the fourth committee the following disposition which appears to it to take account of all the interests involved;
The destruction of a neutral prize is prohibited except if its preservation might compromise the security of the capturing ship or the success of its operations. The commander of the capturing ship must use the right of destruction with the greatest reserve, and must take care first to transship the men and so far as possible the cargo, also in every case to preserve all the shipping documents (papiers de bord) and other elements necessary for an adjudication on the prize and for fixing the indemnities due to neutrals.
The destruction of a neutral prize is prohibited except if its preservation might compromise the security of the capturing ship or the success of its operations. The commander of the capturing ship must use the right of destruction with the greatest reserve, and must take care first to tranship the men and so far as possible the cargo, also in every case to preserve all the shipping documents (papiers de bord) and other elements necessary for an adjudication on the prize and for fixing the indemnities due to neutrals.
It will be observed that the Russian argument assumes that the prohibition to destroy neutral ships cannot be claimed as a neutral right, and is therefore a subject of bargain, in which character it was not unfair to connect it with the relative practical situations which it would create for a certain class of powers. Col. Ovtchinikoff, in the discussion in the fourth committee, observed that the position of inferiority referred to in the proposal would be aggravated if the regulation on the rights and duties of neutrals in maritime war, then before the third committee, should make it more difficult for belligerents and their prizes to avail themselves of neutral ports. In the same discussion it was asserted in support of the British proposal that the destruction of a neutral prize is always in contradiction with the principles on the subject of neutrality, which can scarcely be consistently maintained by anyone who does not hold that the same principles condemn the destruction of an enemy ship with neutral cargo on board.
In the end the question of destroying neutral prizes was allowed to drop at the Hague, but was resumed at London with the result embodied in the Declaration of London.
Westlake, vol. 2, pp. 311, 312. In our account of prize proceedings we have assumed throughout that the vessel has been brought into port and delivered over to the custody of the court. But the most controversial cases arise when a cruiser destroys her
i prizes at sea, instead of taking them in for adjudication.
A broad line of distinction must be drawn between the destruction of enemy property and the destruction of neutral property. The former has changed owners as soon as the capture is effected; but the latter does not belong to the captors till a properly constituted
court has decided that their seizure of it was good in International Law. Its owners have, therefore, a right to insist that an adjudication upon their clam shall precede any further dealings with it. If this right of theirs is disregarded, a claim for satisfaction and indemnity may be put in by their government. It is far better for a captor to release a neutral ship or goods as to which he is doubtful. than to risk personal loss and international complications by destroying innocent property. Great Britain took this view, and instructed her naval officers accordingly. The Institute of International Law in its Règlement International des Prises Maritime permitted the destruction of enemy ships in certain circumstances and under certain conditions, but was silent as to neutral vessels. It is true that the regulations of some states spoke in general terms of the destruction of prizes at sea without making it clear that enemy vessels only were intended. It is also true that in a few cases a distinct claim was made of a right to sink or burn neutral ships which could not be sent in for adjudication. The Russo-Japanese War of 1904-190.3 atforded an instance of this last pretension on the part of both belligerents. In pursuance of their instructions Russian warships sank several neutral merchantmen instead of bringing them into pori for trial before an appropriate tribunal. The most notorious of ihese cases was that of the knight Commander, a British vessel, for whose destruction the English Government claimed a pecuniary indemnity, which Russia refused to pay. She refused also to submit the matter to the Hague Tribunal for arbitration. In 1907 the general question was discussed at the second Hague Conference, of course without reference to particular cases. But no agreement was reached. Better fortune, however, attended the deliberations of the Naval Conference of 1908-1909. As a result of its labors divergent views were harmonized; and the fourth chapter of the Declaration of London dealt with the subject in a series of rules which we may hope will soon become accepted law throughout the civilized world.
Lawrence, pp. 482-486. That as a rule captured neutral vessels may not be sunk, burned. or otherwise destroyed has always been universally recognized just as that captured enemy merchantmen may not as a rule be destroyed. But up to the time of the agreement on the Declaration of London it was a moot question whether the destruction of captured neutral vessels was likewise exceptionally allowed instead of bringing them before a Prize Court. British practice did not, as regards the neutral owner of the vessel, hold the captor justified in destroying a vessel. however exceptional the case may have been, and however meritorious the destruction of the vessel may have been from the point of view of the Government of the captor. For this reason, should a captor, for any motive whatever, have destroyed a neutral prize, full indemnities had to be paid to the owner, although, if brought into a port of a Prize Court, condemnation of vessel and cargo would have been pronounced beyond doubt. The rule was, that a neutral prize must be abandoned in case it could not, for any reason whatever, be brought to a port of a Prize Court. But the practice of other States did not recognize this British rule. The question became of great importance in 1905, during the Russo-Japanese War, when Russian cruisers sank the British vessels Knight Commander, Oldhamin.
cona, St. Kilda, and lipsung, the German vessels Thea, and Tetaros, and the Danish vessel Princesse Varie. Russia paid damages o the owners of the vessels Icona, St. Kilda, Thea, Tetardos, and Princesse Marie, because her Prize Courts declared that the capture of these vessels was not justified, but she refused to pay damages to he owners of the other vessels destroyed, because her Prize Courts considered them to have been justly captured.
The Declaration of London proposes to settle the matter by a compromise. Recognising that neutral prizes may not as a rule be lestroyed, and admitting only one exception to the rule, it empowers the captor under certain circumstances and conditions to demand the handing over, or to proceed himself to the destruction, of contraband carried by a neutral prize which he is compelled to abandon.
Oppenheim. vol. 2. pp. 147–.548. There is, therefore, no doubt that a neutral prize may no longer be destroyed because the captor cannot spare a prize crew or because a port of a Prize Court is too far distant, or the like. The only justification for destruction of a neutral prize is danger to the captor or his operations at the time of capture. As regards the degree of danger required, it cannot be denied that the wording of article 19 does not provide any clue for a restrictive interpretation. But considering that article 551 speaks of an “exceptional necessity," it is hoped and to be expected that the International Prize ('ourt would give such an interpretation to article 19 as would permit a resort to the sinking of neutral prizes in cases of absolute necessity only.
Oppenheim, Vol. 2, 11. 349. Contra.
In a letter of September 19. 1813, Captain Charles Stewart, of the U.S. S. ('onstitution, was instructed :
• The commerce of the enemy is the most vulnerable point we can attack, and its destruction the main object; and to this end all your efforts should be directed. Therefore, unless your prizes shall be very valuable and near a friendly port, it will be imprudent and worse than useless to attempt to send them in. The chances of recapture are excessively great, the crew and the safety of the ship under your command would be diminished and endangered, as well as your own fame and the national honor by hazarding a battle after the reduction of your officers and crew by manning prizes. In every point of view, then, it will be proper to destroy what you capture, except valuable and compact articles that may be transshipped.
** This system gives to one ship the force of many, and by granting to prisoners a cartel, as suficient numbers accumulate, our account on that head will be increased to our creclit, and not only facilitate the exchange, but insure better treatment to our unfortunate comtrymen who are, or may be, captured by the enemy."
In a subsequent instruction to Captain Stewart, November 29, 1814, the Secretary of the Navy said that, as he had on former occasions urged the superior advantage of destroying“ captures, unless in the vicinity of a friendly port and only in the case of very valuable jand fleet-sailing prizes, he need not well on that subject, and added :
Daily experience and the grievous complaints of the merchants of Great Britain sufficiently attest the efficacy of the system."
In a letter of December 8, 1813, Master Commandant George Parker, of the Siren, was admonished that as the most effectual way of barassing and distressing the enemy was the destruction of his trade and commerce, it " ought to be the ruling principle of action with every commander. A single cruiser, if ever so successful, can," declared the Secretary of the Navy: “ man but a few prizes, and every prize is a serious diminution of her force; but a single cruiser. de stroying every captured vessel, has the capacity of continuing in full vigor her destructive power so long as her provisions and stores can be replenished, either from friendly ports or from vessels captured. Thus has a single cruiser, upon the destructive plan, the power, perhaps, of twenty, acting upon pecuniary views alone; and thus must the employment of our small forces in some degree compensate for the great inequality compared with that of the enemy.
Similar instruction were given to other commanders on December 22, 1813, January 6, 1814. February 26, 1814, March 3, 1814, and November 30, 1811.
American State Papers, Naval Affairs, 1, 373–376, Moore's Digest, Vol VII.
pp. 516, 517. When a Vessel has been detained she should be sent, with the accustomed precautions, to a Port of Adjudication; and upon her arrival there proceedings should be commenced with a view to her being duly condemned by a Prize Court.
Holland, p. 4. After Detention, the Commander should as soon as possible send the Vessel and Cargo in for Adjudication.
Penalty for delay in sending in for adjudication.
If the Commander is guilty of unnecessary delay in sending the Vessel and Cargo in for Adjudication, he will, in the event of restoration being decreed, be liable for damages.
What are proper ports of adjudication.
By a Port of Adjudication is meant a Port to which the Vessel and her Cargo are sent in order that they may lie there in safety pending proceedings for Adjudication.
The Port of Adjudication should, if possible, be a British Port, whether in the United Kingdom or elsewhere in the British Dominions; if not, an Allied Port; but in the latter case it will be necessary, in order that proceedings for Adjudication may be duly institute, for the Commander to forward the witnesses, together with the Vessel's Papers and necessary Affidavits, in charge of one of the Officers of his Ship to the nearest British Prize Court.
None but a British or an Allied Port can be a proper Port of Adjudication; although in cases of necessity hereafter considered. resort may be had to a Neutral Port. Port of adjudication, how to be selected.
From the many Ports which are proper Ports of Adjudication, the Commander should select the one which, upon a consideration of all the circumstances, shall seem the most convenient. He should have regard in the first place to the exigencies of the Public Service, and
in the second place to the interests of all parties concerned—namely, the owners of the Vessel, the owners of the Cargo, and the Captors. These interests require (amongst other things)
1. That the Port should be capable of giving safe harbourage to the Vessel.
2. That it should be large enough to admit the Vessel without unlivery of her Cargo.
3. That it should offer easy communication with the Prize Court before which the case is to be adjudicated.
4. That it should be as near as possible to the place of Capture.
If the Commander, in selecting a Port of Adjudication, unreasonably disregard the interests of the Owners of the Vessel and Cargo, he will be liable for damages.
Holland, pp: 79–81.
(1) If the Surveying Officers report the Vessel not to be in a condition to be sent into any port for Adjudication; or,
(2) If the Commander is unable to spare a Prize Crew to navigate the Vessel to a Port of Adjudication, the Commander should release the Vessel and Cargo without ransom, unless there is clear proof that she belongs to the Enemy.
Holland, p. 86. In exceptional cases, when the preservation of a captured vessel appears impossible on account of her bad condition or entire worthlessness, the danger of her recapture by the enemy, or the great distance or blockade of ports, or else on account of danger threatening the ship which has made the capture or the success of her operations, it is permissible for the Commander, on his own responsibility, to burn or sink the captured vessel, after he has taken off all persons on board, and as much of the cargo as possible, and arranged for the safety of the vessel's papers, and any other objects which may be necessary for throwing light on the case at the inquiry to be instituted in accordance with the procedure in prize cases. The Commander will draw up a Report, in accordance with Article 353 of the Naval Regulations (edition of 1899), on the circumstances which have made it necessary for him to destroy the captured vessel.
Russian Regulations, 1895, Article 21. Captured vessels and cargoes are to be taken by the ship making the capture to Russian ports, or, if there are none near, to ports of an allied Power or to the operating Russian fleet.
Russian Regulations, 1895, Article 22. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting.
The Prize should be delivered to the Court as nearly as possible in the condition in which she was at the time of seizure.
United States Instructions to Blockading Vessels and Cruisers, General
Orders, No. 492, June 20, 1898, For. Rel. 1898, 180, 782. If there are controlling reasons why vessels may not be sent in for adjudication, as unseaworthiness, the existence of infectious disease, or the lack of a prize crew, they may be appraised and sold; and if