JAPANESE REGULATIONS.

79

In this case the commander should cause a survey thereof to be made by the officers of his ship the best qualified for the duty, and the surveying officers should report in writing the details of the matter to the commander, and the commander should forward the report to the prize court.

When the commander causes the cargo to be sold, the affidavit may be in Form No. 4. In other cases, in which the detained vessel is brought to the nearest port, the affidavit may be in Form No. 5.

In the above-mentioned case, if the vessel is not an enemy's vessel, the commander should release the vessel after confiscation of the contraband goods.

ARTICLE 21. The sale may be made in any neutral port where the local authorities may be willing to allow the sale to take place.

ARTICLE 22. If the enemy's vessels are unfit to be sent to a port, as stated in article 18, the commander should break up the vessels, after taking the crew, the ship's papers, and the cargo, if possible, into his ship. The crew, the ship's papers, and the cargo should be sent to a port, as stated in article 18. (Takahashi, International Law During the Chino-Japanese War, p. 183.)

The Japanese regulations of March 7, 1904, are much more general in character.

ARTICLE XCI. In the following cases, and when it is unavoidable, the captain of the man-of-war may destroy a captured vessel, or dispose of her according to the exigency of the occasion. But before so destroying or disposing of her he shall transship all persons on board and, as far as possible, the cargo also, and shall preserve the ship's papers and all other documents required for judicial examination:

1. When the captured vessel is in very bad condition and can not be navigated on account of the heavy sea.

2. When there is apprehension that the vessel may be recaptured by the enemy.

3. When the man-of-war can not man the prize without so reducing her own complement as to endanger her safety.

ARTICLE XCII. In the cases of the above article the captain of the man-of-war shall direct the prize officer to prepare a certificate stating the circumstances of inability to send in the prize and the details of her disposal, and to send it to the nearest prize court, together with persons and cargo removed from the vessel, the ship's papers, and all other documents required for judicial examination.

These regulations have not received the same interpretation in all cases.

Oppenheim says:

Japan, which according to article 20 of her prize law of 1894 ordered her captors to release neutral prizes after confiscation of their contraband goods, in case the vessels can not be brought into a port, altered her attitude in 1904, and allowed in certain cases the destruction of neutral prizes. (2 International Law, p. 471, sec. 431.)

Of the above statement J. B. Moore says:

A close scrutiny of article 20 of the Japanese prize law of 1894 seems scarcely to bear out this statement. The article does not in terms embrace vessels not brought in, but refers to cases in which the prize was, in conformity with article 18, brought in, if not to the port where the prize court sits, then, in conformity with article 19, to the port nearest the place of capture; and in this relation it provides: "In the above-mentioned cases, if the vessel is not an enemy's vessel, the commander should release the vessel after confiscation of the contraband goods."

66

A stronger implication, to the effect stated by Oppenheim, might have been drawn from article 22 of the prize law of 1894, which reads: If the enemy's vessels are unfit to be sent to a port as stated in article 18, the commander should break up the vessels, after taking the crew, the ship's papers, and the cargo, if possible into his ship. The crew, the ship's papers, and the cargo should be sent to a port as stated in article 18." (7 Moore, International Law Digest, p. 524.)

The Instructions to Blockading Vessels and Cruisers issued by the United States June 20, 1898 (General Order No. 492), states:

24. The title to property seized as prize changes only by the decision rendered by the prize court. But, if the vessel itself, or its cargo, is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court.

British cases and opinions.-Professor Holland, in a letter to the Times, London, referring to the Russian rules, also refers to several cases.

The Actaeon, an American ship, in 1814, under British license, was destroyed by the British war ship La Hogue. The captain of La Hogue could not spare a prize crew to send the Actaeon to port and did not deem it wise to allow the Actaeon to proceed, as she might disclose the position and strength of his force. He therefore destroyed the

BRITISH CASES AND OPINIONS.

81

Actaeon with her cargo. The court decided that while the action of the British captain might be meritorious as toward his own Government, it might not properly entail loss upon the innocent owner.

Lastly, it has been said that Captain Capel could not spare men from his own ship to carry the captured vessel to a British port, and that he could not suffer her to go into Boston, because she would have furnished important information to the Americans. These are circumstances which may have afforded very good reasons for destroying this vessel, and may have made it a very meritorious act in Captain Capel as far as his own Government is concerned, but they furnish no reason why the American owner should be a sufferer. I do not see that there is anything that can be fairly imputed to the owner as contributing in any degree to the necessity of capturing or destroying his property, and I think, therefore, that he is entitled to receive the fullest compensation from the captor. (2 Dodson's Admiralty Report, p. 48. The Felicity, Ibid., p. 381, stated in International Law Topics and Discussion, Naval War College, 1905, p. 63.)

In 1855 Doctor Lushington gave his opinion in the case of the Leucade.

The destruction of a vessel under hostile colors is a matter of duty; the court may condemn on proof which would be inadmissible or wholly irregular in the instance of a neutral vessel. It may be justifiable or even praiseworthy in the captors to destroy an enemy's vessel. Indeed, the bringing to adjudication at all of an enemy's vessel is not called for by any respect to the enemy proprietor where there is no neutral property on board. But for totally different considerations, which I need not now enter upon, where a vessel under neutral colors is detained, she has the right to be brought to adjudication according to the regular course of proceeding in the prize court; and it is the very first duty of the captor to bring it in, if it be practicable.

From the performance of this duty the captor can be exonerated only by showing that he was a bona fide possessor, and that it was impossible for him to discharge it. No excuse for him as to inconvenience or difficulty can be admitted as between captors and claimants. If the ship be lost, that fact alone is no answer; the captor must show a valid cause for the detention as well as for the loss. If the ship be destroyed for reasons of policy alone, as to maintain a blockade or otherwise, the claimant is entitled to costs and damages. The general rule, therefore, is that if a ship under neutral colors is not brought to a competent court for adjudication, the claimants are, as against the captor, entitled

25114-08-6

to costs and damages. Indeed, if a captor doubt his power to bring a neutral vessel to adjudication, it is his duty, under ordinary circumstances, to release her. (Spink's Admiralty Reports, 217.)

These British cases seem to some to admit the right of destruction of neutral vessels under circumstances of grave necessity under penalty not merely of restitution of value but of costs and damages.

In his letter to the London Times dated August 1, Professor Holland thus comments upon the practice:

There is no doubt that by the Russian regulations of 1895, article 21, and instructions of 1901, article 40, officers are empowered to destroy their prizes at sea, no distinction being drawn between neutral and enemy property, under such exceptional circumstances as the bad condition or small value of the prize, risk of recapture, distance from a Russian port, danger to the imperial cruiser or to the success of her operations. The instructions of 1901, it may be added, explain that an officer "incurs no responsibility whatever" for so acting if the captured vessel is really liable to confiscation and the special circumstances imperatively demand her destruction. It is fair to say that not dissimilar, though less stringent, instructions were issued by France in 1870 and by the United States in 1898; also that, although the French instructions expressly contemplate "l'établissement des indemnités à attribuer aux neutres," a French prize court in 1870 refused compensation to neutral owners for the loss of their property on board of enemy ships burnt at sea.

The question, however, remains whether such regulations are in accordance with the rules of international law. The statement of these rules by Lord Stowell, who speaks of them as “clear in principle and established in practice," may, I think, be summarized as follows: An enemy's ship, after her crew has been placed in safety, may be destroyed. Where there is any ground for believing that the ship, or any part of her cargo, is neutral property, such action is justifiable only in cases of "the gravest importance to the captor's own state," after securing the ship's papers and subject to the right of neutral owners to receive full compensation. (Actaeon, 2 Dods., 48; Felicity, Ib., 381; substantially followed by Dr. Lushington in Leucade, Spinks, 221.) It is not the case, as is alleged by the Novoe Vremya, that any British regulations "contain the same provisions as the Russian " on this subject. On the contrary, the Admiralty Manual of 1888 allows destruction of enemy vessels only, and goes so far in the direction of liberality as to order the release, without ransom, of a neutral prize which, either from its condition or from lack of a prize crew, can not be sent in for adjudication. The Japanese in

BRITISH CASES AND OPINIONS.

83

structions of 1894 permit the destruction of only enemy vessels; and article 50 of the carefully debated "Code des prises" of the Institut de Droit International is to the same effect. It may be worth while to add that the eminent Russian jurist, M. de Martens, in his book on international law, published some 20 years ago, in mentioning that the distance of her ports from the scenes of naval operations often obliges Russia to sink her prizes, so that ce que les lis maritimes de tous les états considèrent comme un moyen auquel il n'y a lieu de recourir qu'a la denière extrémité, se transformera nécessairement pour nous en règle normale," foresaw that "cette mesure d'un caractère général soulèvera indubitablement contre notre pays un mécontentement universel." (The Times, August 6, 1904.)

66

Lord Landsdowne, in a communication sent to the British ambassador at St. Petersburg, August 10, 1904, protests against the destruction of neutral ships (cited in Topic IV, 1905):

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 a prize court. We understand that this right of destroying a prize is claimed in a number of cases; among 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 too much time or entail too great a consumption of coal. It is, we understand, 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 wholesale 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.

It appears to His Majesty's Government that no pains should be spared by the Russian Government in order to put an end without delay to a condition of things so detrimental to the com