SITUATION V.

War exists between the United States and State X. Neutral merchant vessels bound for a fortified port of State X and loaded for the most part with contraband are overtaken on the high seas by vessels of the United States Navy.

Some of these neutral merchant vessels are unseaworthy, some are overtaken at points too far from a prize court to make it advantageous to send the vessels in, others can not be cared for without impeding the action of the United States naval forces, which are in danger of immediate attack, and in other cases prize crews can not be spared to take the captured neutral merchantman to a prize court.

What action may be taken by commanders of vessels of the United States Navy in such cases?

SOLUTION.

(a) If the contraband cargo and the seized neutral vessel have different owners, the contraband cargo, after proper survey, appraisal, and inventory, and with consent of the master, if in accordance with treaty provisions, may be taken, and the vessel, if guilty only of the carriage of contraband, should be dismissed and the papers relating to the whole transaction should be forwarded to the prize court.

(b) If the master does not consent the vessel and cargo are liable to the usual penalties for contraband trade.

(c) If the neutral vessel and contraband cargo belong to the same owner the contraband cargo may be treated as in (a). The vessel, however, should, if possible, be sent to a prize court for adjudication, otherwise the vessel should be dismissed.

(d) Destruction, on account of military necessity, of a neutral vessel guilty only of the carriage of contraband entitles the owner to fullest compensation. Before destruction all persons and papers should be placed in safety.

DISCUSSION IN 1905.

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NOTES ON SITUATION V.

Discussion in 1905.-Topic IV, considered by the Naval War College in 1905, was as follows:

Should the destruction of captured vessels be allowed before adjudication by a prize court? If so, under what condition?

The conclusion of the Conference was as follows: Enemy vessels.—If there are controlling reasons why enemy 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 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.

Neutral vessels.-If a seized neutral vessel can not for any reason be brought into port for adjudication, it should be dismissed. (Naval War College, International Law Topics and Discussions, 1905, pp. 62-76.)

The discussion in 1905 was more particularly concerned with the conditions under which enemy vessels might be destroyed.

In 1905 it was said:

The destruction of a neutral ship must be clearly distinguished from the destruction of a belligerent ship even under the principles at present generally accepted. If the belligerent's vessel is good prize it may be lost to that belligerent from the time when his opponent captures it. This is not always necessarily the case, because it may be recaptured or a court for some reason may not condemn the vessel. "Quarter-deck courts" should be avoided, except in extreme instances, even in deciding on the destruction of enemy vessels. Such vessels may have neutral cargo, which may be in no way involved in the hostilities. The principle of the Declaration of Paris that "neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag" may be involved in such a manner as to make great caution necessary in destroying vessels of the enemy before adjudication.

Much greater care should be taken before destroying a neutral vessel itself. (Ibid, p. 72.)

In Topic IV, 1905, attention was particularly directed to the conditions under which enemy vessels might be

destroyed. In Situation V of 1907 it is the purpose to give somewhat more consideration to the treatment of cargoes on neutral vessels and to the treatment of neutral vessels themselves.

Many grounds have been put forward as sufficient for the destruction of private vessels that have been seized in time of war. From the phraseology of the rules that have been drawn up from time to time it would seem that it had not entered the minds of some writers that a neutral vessel could under any circumstances be destroyed before condemnation by a prize court.

Restriction on movements of vessels with prize. When prizes could be brought into neutral ports the question of destruction was not particularly pressing, as sale in a neutral port was a possibility, or in case of unseaworthiness refitting could be undertaken there.

Most neutral states at the present time forbid the entrance to their ports of war vessels of the belligerents with prize. The following are examples of the prohibitions:

An Italian royal decree of June 16, 1895, says:

ART. 12. Foreign ships of war and merchantmen armed for cruising are forbidden to bring prizes into, or to arrest and search vessels in, the territorial sea or in the sea adjacent to the Italian islands, as well as to commit other acts which constitute an offense to the rights of state sovereignty.

Great Britain in 1898 and in 1904 prohibited the entrance of prize.

Armed ships of either belligerent are interdicted from carrying prizes made by them into the ports, harbors, roadsteads, or waters of the United Kingdom, the Isle of Man, the Channel Islands, or any of Her Majesty's colonies or possessions abroad.

France allowed the entrance of war vessels with prize in 1898 and in 1904.

The Government decides in addition that no ship of war of either belligerent will be permitted to enter and to remain with her prizes in the harbors and anchorages of France, its colonies

REGULATIONS AS TO DESTRUCTION.

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and protectorates, for more than twenty-four hours, except in the case of forced delay or justifiable necessity.

No sale of objects gained from prizes shall take place in the said harbors and anchorages.

Regulations as to destruction of seized vessels.-The regulations of different states in regard to the destruction of seized vessels vary. The British regulations are rather more definite than those of most other states.

In regard to destruction of captured vessels the British Admiralty Manual of Prize Law of 1888 makes clear distinction between the treatment of neutral and of enemy vessels.

303. In either of the following cases:

(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 Port of Adjudication, the Commander should release the Vessel and Cargo without ransom, unless there is clear proof that she belongs to the Enemy.

304. But if in either of these cases there be clear proof that the Vessel belongs to the Enemy, the Commander should remove. her Crew and Papers, and, if possible, her Cargo, and then destroy the Vessel. The Crew and the Cargo (if saved) should then be forwarded to a proper Port of Adjudication in charge of a Prize Officer, together with the Vessel's Papers and the necessary Affidavits. Amongst the Affidavits should be one, to be made by the Prize Officer, exhibiting the evidence that the Vessel belonged to the Enemy, and the facts which rendered it impracticable to send her in for Adjudication. (Page 86.)

The French Instructions Complémentaires of 1870 grant great freedom in the treatment of neutral property.

ART. 20. Si une circonstance majeure forçait un croiseur à détruire une prise, parce que sa conservation compromettrait sa sécurité ou le succès de ses opérations, il devrait avoir soin de conserver tous les papiers du bord et autres éléments nécessaires pour permettre le jugement de la prise et l'établissement des indemnités à attribuer aux neutres dont la propriété non confiscable aurait été détruite. On ne doit user de ce droit de destruction qu'avec la plus grande réserve.

The instructions issued by the United States in 1898 (General Order, No. 492) make no distinction between neutral and enemy vessels seized as prize.

28. 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 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.

The Russian Prize Regulations of March 25, 1895, make no distinction in the treatment of detained vessels, whether enemy or neutral vessels.

21. In extraordinary cases, when the preservation of a detained vessel proves impossible in consequence of its bad condition or extremely small value (sic), the danger of its recapture by the enemy, or the considerable distance or blockade of the ports, as well as of danger threatening the detaining vessel or the success of its operations, the naval commander is permitted, on his personal responsibility, to burn or sink the detained vessel after having first taken all the people off it, and as far as possible the cargo on board, and also after having taken measures for preserving the documents and other objects on board, and which might prove essential in elucidating matters when the case is examined according to the method prescribed for prize cases. (U. S. Foreign Relations, 1904, p. 738.)

The Japanese regulations issued during the ChinoJapanese war of 1894 provide:

ARTICLE 18. After detention, the commander should as soon as possible himself bring the vessel to the port where the prize court is, or the port nearest the prize court.

If the state of things renders it necessary, he may order the officer who secured the vessel (art. 14) or another officer to embark on board and bring the vessel to the above-named port.

ARTICLE 19. If the quantity of provisions, the state of the weather, or other circumstances render it necessary, the commander may call at the nearest port. When the circumstances admit, he should as soon as possible go to the port stated in article 18.

ARTICLE 20. When the commander finds that the detained vessel is unfit to be sent to the port stated in article 18, or when the commander is not able to send a crew to the vessel for the purpose of bringing her to the above-named port, or when he finds the cargo is unfit to be sent to that port, the commander may bring the vessel to the nearest port to where he is, and may act as the state of things permits him.