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this can not be done they may be destroyed. The imminent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. 'But in all such cases all the papers and other testimony should be sent to the prize court in order that a decree may be duly entered.
Instructions to United States Blockading Vessels and Cruisers, General
Orders, Yo, 492, June 20, 1898.
Prizes should be sent in for adjudication, unless otherwise directed, to the nearest suitable port, within the territorial jurisdiction of the United States, in which a prize court may take action.
The prize should be delivered to the court as nearly as possible in the condition in which she was at the time of seizure, and to this end her papers should be carefully sealed at the time of seizure and kept in the custody of the prize master.
If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication such as unseaworthiness, the existence of infectious disease, or the lack of a prize crew—ther may be appraised and sold, and if this can not be done, they may be destroyed. The imminent danger of recapture would justify destruction, if there should be no doubt that the vessel was a proper prize. But in all such cases all of the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered.
U. S. Naval War Code, 1900, Articles 46, 47, and 50. In the following and other similar exceptional cases, the Commander of the Imperial cruiser has the right to burn or sink the captured vessel, after taking off the persons on board, and, if possible the whole or part of the cargo, and also all papers and articles which may
be necessary for the elucidation of the case in the Prize Court:(1) When it is impossible to preserve the captured vessel on aecount of her bad condition.
(2) When there is danger of the vessel being recaptured by the enemy.
(3) When the captured vessel is of very little value, and her conveyance would take too much time and entail too great a consumption of coal.
(4) When conveyance appears difficult in consequence of the distance or blockade of the ports to which the vessel should be brought.
(5) When the conveyance may prevent the success of operations of war in which the Imperial cruiser is engaged, or expose her to danger.
The Commander should draw up a report, to be signed by himself and all his officers, explaining the circumstances which have induced him to destroy the captured vessel. He should transmit the report to his superior officer by the first opportunity.
OBSERVATION.-Although Article 21 of the Regulations of 1895, in regard to Naval Prizes, allows the burning or sinking of a captured vessel by the Commander, “ on his own responsibility," the latter incurs no responsibility whatever if the captured vessel is really liable to confiscation as a prize, and the exceptional circumstances in which the Imperial ship is placed imperatively demand the destruction of the captured vessel.
Russian Instructions, 1900, sec. 10.
Circumstances in which capturing ship may be replaced by prize.
If it appears that a ship which has been captured, and which ought to be destroyed under the preceding Article, is in construction and sea-going qualities better than the Imperial ship, the Commander has the right to replace his own ship by the prize, and to burn or sink his own ship.
Russian Instructions, 1900, sec. 41.
The commander of the warship shall, for the purpose of navigating the ship captured, appoint a prize-laster and the necessary petty officers and men, and, putting them on board the ship, at once send her and her cargo to the nearest port in Japan at which there is a prize court, or to a Japanese port in the neighborhood.
Japanese Regulations 1904, Article 79.
In the following cases the commander of the warship may, under unavoidable circumstances, destroy the ship which has been captured or take the steps necessary to meet the emergency. Before, however, destroying the ship, or taking steps necessary to meet the emergency, he must tranship the crew of the ship, and, as far as he is able, her cargo, and take charge of the ship's papers and such articles as are necessary for the Prize Court examination.
1. When, owing to her being in an unsea worthy condition, or because of dangers at sea, the ship cannot be navigated.
2. When there is reason to fear that the ship will be retaken by the enemy.
3. When the ship cannot be navigated without causing a deficiency in the complement of officers and men requisite to the safety of the warship.
In the cases mentioned in the preceding Article, the commander of the warship shall cause the prize-master to draw up a certificate stating in detail the conditions which made it impossible to navigate 'the ship, with particulars of the steps taken, and send the prizemaster with the transhipped crew and cargo, the ship’s papers and other documents and articles necessary for the Prize Court examination to the nearest Japanese Prize Court.
Japa nese Regulations, 1904, Articles 91 and 92. The captains of H. M. Ships during a war have the right, in conformity with the following instructions, to visit enemy or neutral merchant vessels, to search them, and to seize them, as well as the enemy and neutral goods found on board and in exceptional cases to destroy them.
During an armistice this right of capture is suspended only when expressly agreed.
German Prize Rules, 1909, Article 1. The legality of the capture of merchant ships, “ Bringing in", of the seizure of goods, and also of the destruction of neutral ships or of goods from their cargoes will be determined later by judgment of a prize court. Prize court proceedings may be instituted also by interested party if the seizure made is released by the captain himself (see 97). "The prize court will adjudge as to confiscation, or release with or without damages; in case of the destruction or release of the prize by the captain himself, as to damages.
German Prize Rules, 1909, Article 1. The captain will provide for taking the ship. the quickest and sa fest possible into a German port or one of an allied power.
The captain gives the prize officer appropriate sailing orders in writing, and so makes up the prize crew that it is possible for the prize to take the ship in.
German Prize Rules, 1909, Article 111. 113. The captain is authorized to destroy a neutral ship which has been captured because of contraband under 39 or under 77, 78, because of breach of blockade, or under 51 because of unneutral service, only when
a) when it is subject to confiscation (see 41, 51, or 80) and when besides.
b) taking it in would cause a danger to the man-of-war or risk the success of the undertaking in which she is at the time engaged.
This is to be assumed among other things, when
a) the ship cannot be brought in on account of her bad condition or because of shortage of stores, or
b) the ship cannot follow the man-of-war and therefore recapture is probable or
c) the proximity of an enemy force makes the recapture of the ship probable or
d) the man-of-war cannot spare a sufficient crew.
116. Before the destruction, all persons on board, if possible with their goods and chattels, to be placed in safety, and all the ships papers and other articles of evidence which in the opinion of the interested parties are of value for the judgment of the prize court are to be taken over by the Captain.
118. In sinking ships care is to be taken if possible to make no destruction for neutral shipping. German Prize Rules, 1909, Articles 113, 116, 118.
If it is not possible to take the [captured] ship into the port ordered, he [the prize officer] will seek another into which the prize may be taken (see 111). If this also is not possible, he will proceed to destroy the ship, under the provisions of No. 112 to 118, as soon as the safe salving of the persons, papers, and articles of evidence on board the ship has been accomplished.' The requirements of No. 123 are to be observed.
German Prize Rules, 1909, Article 129. Extension of excepted cases.
In case the vessel is devastated or of very little value, or if the port in which shelter is to be sought is very far off or blockaded and the vessel for these reasons runs the risk of being recaptured by the enemy; or, again, when it hinders the movements of the vessel which has captured it; or, finally, when it jeopardizes the success of the naval operations and under every other similar exceptional circumstance, the preservation of the prize having become impossible, the captain shall be authorized to burn or sink the captured ship, assuming the responsibility and after embarking on board his ship the men and as far as possible the merchandise, as well as all other objects and documents existing on board and likely to enlighten the prize court. Whereupon the captain shall be obliged to prepare a report, stating therein the circumstances which induced the destruction of the captured vessel.
Turkish Regulations, 1912, ch. 1, art. 1. The captured vessels as well as their cargo shall be headed for an Ottoman port by the captain who has made the capture. In case there is no Ottoman port in the vicinity, he shall head the prize for a port belonging to an allied nation or for a point at which the Ottoman fleet is to pass.
Turkish Regulations, 1912, ch. 1, art. 5. A captured neutral vessel is not to be destroyed by the captor; but it must be taken into a national or allied port in order to determine there the rights as regards the validity of the capture.
French Naval Instructions, 1912, sec. 156. Sections 157 and 158 of the French Naval Instructions are substantially identical with Articles 49 and 50, respectively, Declaration of London.
Articles 48, 49 and 50, Declaration of London, are substantially identical with sections 29, 30 and 31, respectively, Austro-Hungarian Manual, 1913.
In a telegram to Mr. Choate, Ambassador to England, on Aug. 6, 1904, Secretary of State Hay said, referring to the case of the Knight Commander, sunk by a Russian warship, that the Department was not sufficiently advised of all the circumstances to express an opinion in the case, nor could it say that “in case of imperative necessity," a prize might not be lawfully destroyed by a belligerent captor.
Moore's Digest, vol. VII, p. 520. “ The position, already sufficiently threatening, is aggravated by the assertion on behalf of the Russian Government that the captor of a neutral ship is within his rights if he sinks it, merely for the reason that it is difficult, or impossible, for him to convey it to a national port for adjudication by Prize Court. We understand that this right of destroying a prize is claimed in a number of cases; amongst others, when the conveyance of the prize to a Prize Court is inconvenient because of the distance of the port to which the vessel should be brought, or when her conveyance to such a port would take toc much time or entail too great a consumption of coal. It is, we under
a stand, even asserted that such destruction is justifiable when the captor has not at his disposal a sufficient number of men from whom to provide a crew for the captured vessel. It is unnecessary to point out to your Excellency the effects of a consistent application of these principles. They would justify the whole-sale destruction of neutral ships taken by a vessel of war at a distance from her own base upon the ground that such prizes had not on board a sufficient amount of coal to carry them to a remote foreign port-an amount of coal
with which such ships would probably in no circumstances have been supplied. They would similarly justify the destruction of every neutral ship taken by a belligerent vessel which started on her voyage with a crew sufficient for her own requirements only, and therefore unable to furnish prize crews for her captures. The adoption of such measures by the Russian Government could not fail to occasion a complete paralysis of all neutral commerce."
The Marquess of Lansdowne to Sir ('. Hardinge, British ambassador to
Necessity for condemnation.
The "Mostra Signora," 3 C. Rob., 287.–This was the case of the capture of a British ship by a French vessel and her subsequent sale to a Spaniard. The ship later coming to England, her former owner instituted proceedings for her recovery.
Held that as legal condemnation of the ship could not be shown. she must be restored to the former owners.
The "Peacock." 4 ('. Rob., 185.- In this case the captors were held liable in costs and damages, because, instead of bringing the prize as soon as possible to a British port, they took her into a neutral port and kept her there for a " long time."
What is a proper port.
The "Wilhelmsburg," 5. Rob. 143. In this case the court awarded claimants demurrage and expenses because the vessel had been taken into the port of Shetland," where the captor cannot get advice, much less can the claimant learn in what manner to proceed. or where to resort for justice."
See also The Anna, 5 ('. Rob. 373, wherein the court (ensured the captors
for bringing the prize across the Atlantic to England instead of taking
her into : British port in the West Indies. See also The Washington, 6 C. Rob. 275. where the court condemned the captors in damages for having taken the prize to a port in Jersey, which
open road," and unsafe for a vessel like the prize.
The "Inna,“ 5 ('. Rob., 37.3.-In this case the court answered an excuse of the captors for not bringing the prize into an appropriate port, by saying that they should then have abstained from making any capture, when they could not stay to bring the case to adjudication in the proper courts."
Prize court may act without physical presence of prize.
While the prize should be brought into captor's port and there passed upon by a prize court, the physical presence of the prize is not necessary: it may be in the port of a neutral, on the high seas, or at the bottom of the seas.
Scott's Cases, p. 925, note: Hudson 1. Guestier, 4 Cranch, 293 : The Inrinci.
ble, 2 Gall., 27.
Jerker 1. Jontgomery, 1.3 Ilou., 198, 516.-In this case the court said: “As a general rule, it is the duty of the captor to bring it within the jurisdiction of a prize court of the nation to which he belongs, and to institute proceedings to have it condemned. This is required by the act of Congress in cases of capture by ships of war of