International Law. A Treatise
Chapter 140 : [Sidenote: Unneutral Service creating Enemy Character.]-- 410. In contradistinction to

[Sidenote: Unneutral Service creating Enemy Character.]

-- 410. In contradistinction to cases of unneutral service which are similar to carriage of contraband, the Declaration of London enumerates in article 46 four cases of such kinds of unneutral service as vest neutral vessels with enemy character.[872]

(1) There is, firstly, the case of a neutral merchantman taking a direct part in the hostilities. This may occur in several ways, but such vessel in every case loses her neutral and acquires enemy character, just as a subject of a neutral Power who enlists in the ranks of the enemy armed forces. But a distinction must be made between taking a direct part in the hostilities, for instance rendering a.s.sistance to the enemy fleet during battle, on the one hand, and, on the other, acts of a piratical character. If a neutral merchantman--see above, ---- 85, 181, and 254--without Letters of Marque during war and from hatred of one of the belligerents, were to attack and sink merchantmen of such belligerent, she would have to be considered, and could therefore be treated as, a pirate.

(2) There is, secondly, the case of a neutral vessel which sails under the orders or the control of an agent placed on board by the enemy Government. The presence of such agent, and the fact that the vessel sails under his orders or control shows clearly that she is really for all practical purposes part and parcel of the enemy forces.

(3) There is, thirdly, the case of a neutral vessel in the exclusive employment of the enemy. This may occur in two different ways: either the vessel may be rendering a specific service in the exclusive employment of the enemy, as, for instance, did those German merchantmen during the Russo-j.a.panese War which acted as colliers for the Russian fleet _en route_ for the Far East; or the vessel may be chartered by the enemy so that she is entirely at his disposal for any purpose he may choose, whether such purpose is or is not connected with the war.[873]

(4) There is, fourthly and lastly, the case of a neutral merchantman exclusively intended at the time either for the transport of enemy troops or for the transmission of intelligence for the enemy. This case is different from the case--provided for by article 45, No. 1--of a vessel on a voyage specially undertaken with a view to the carriage of individual members of the armed forces of the enemy. Whereas the latter is a case of unneutral service rendered by a vessel which turns from her course for the purpose of rendering specific service, the former is a case in which the vessel is exclusively and for the time being permanently intended and devoted to the rendering of unneutral service.

For the time being she is, therefore, actually part and parcel of the enemy marine. For this reason she is considered to be rendering unneutral service, and to have lost her neutral character, even if, at the moment an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence. The fact is decisive that she is for the time being exclusively intended for such unneutral service, whether or no she is at every moment really engaged in rendering such service. And it makes no difference, whether the vessel is engaged by the enemy and paid for the transport of troops or the transmission of intelligence, or whether she renders the service[874] gratuitously.

[Footnote 872: See above, -- 89 (1), p. 113.]

[Footnote 873: Two cases of interest occurred in 1905, during the Russo-j.a.panese War. The _Industrie_, a German vessel, and the _Quang-nam_, a French vessel, were captured and condemned by the j.a.panese for being in the employ of Russia as reconnoitring vessels, although the former pretended to collect news in the service of the Chefoo _Daily News_, and the latter pretended to be a cargo vessel plying between neutral ports. See Takahas.h.i.+, pp. 732 and 735.]

[Footnote 874: As regards the meaning of the term transmission of intelligence, see above, -- 409.]

II

CONSEQUENCES OF UNNEUTRAL SERVICE

See the literature quoted above at the commencement of -- 407.

[Sidenote: Capture for Unneutral Service.]

-- 411. According to customary rules. .h.i.therto prevailing, as well as according to the Declaration of London, a neutral vessel may be captured if visit or search establish the fact, or grave suspicion of the fact, that she is rendering unneutral service to the enemy. And such capture may take place anywhere throughout the range of the Open Sea and the territorial maritime belt of either belligerent.

Stress must be laid on the fact that mail steamers are on principle not exempt from capture for unneutral service. Although, according to article 1 of Convention XI., the postal correspondence of belligerents as well as of neutrals, whatever its official or private character, found on board a vessel on the sea is inviolable,[875] and a vessel may never, therefore, be considered to be rendering unneutral service by carrying amongst her postal correspondence despatches containing intelligence for the enemy, a mail steamer is nevertheless--see article 2 of Convention XI.--not exempt from the laws and customs of naval war respecting neutral merchantmen. A mail boat is, therefore, quite as much as any other merchantman, exposed to capture for rendering unneutral service.

[Footnote 875: See above, ---- 191 and 319.]

However this may be, capture is allowed only so long as the vessel is _in delicto_, that is during the time in which she is rendering the unneutral service concerned or immediately afterwards while she is being chased for having rendered unneutral service. A neutral vessel may not, therefore, be captured after the completion of a voyage specially undertaken for the purpose of transporting members of the armed forces of the enemy, or of transmitting intelligence for the enemy, or after having disembarked the military detachment of the enemy and the persons directly a.s.sisting the operations of the enemy in the course of the voyage whom she was transporting. And it must be specially emphasised that even such neutral vessel as had acquired--see article 46 of the Declaration of London--enemy character by rendering unneutral service, ceases to be _in delicto_ after her unneutral service has come to an end. Thus, for instance, a neutral vessel which took a direct part in hostilities[876] may not afterwards be captured, nor may a vessel which has disembarked the agent of the enemy Government under whose orders or control she was navigating.

[Footnote 876: Provided she did not--see above, -- 410 (1)--commit acts of a piratical character; for such acts she may always be punished.]

[Sidenote: Penalty for Unneutral Service.]

-- 412. According to the practice hitherto prevailing, a neutral vessel captured for carriage of persons or despatches in the service of the enemy could be confiscated. Moreover, according to British[877]

practice, such part of the cargo as belonged to the owner of the vessel was likewise confiscated.[878] And if the vessel was not found guilty of carrying persons or despatches in the service of the enemy, and was not therefore condemned, the Government of the captor could nevertheless detain the persons as prisoners of war and confiscate the despatches, provided the persons and despatches concerned were in any way of such a character as to make a vessel, which was cognisant of this character, liable to punishment for transporting them for the enemy.

[Footnote 877: The _Friends.h.i.+p_ (1807), 6 C. Rob. 420; the _Atalanta_ (1808), 6 C. Rob. 440. See Holland, _Prize Law_, ---- 95 and 105.]

[Footnote 878: See, however, the _Hope_ (1808), 6 C. Rob. 463, note.]

The Declaration of London recognises these three rules. Articles 45 and 46 declare any vessel rendering any kind of unneutral service to the enemy liable to confiscation, and likewise declare such part of the cargo as belongs to the owner of the confiscated vessel liable to confiscation. And article 47 enacts that, although a neutral vessel may not be condemned because there are no grounds for her capture, the capturing State may nevertheless detain as prisoners of war any members of the armed forces of the enemy who were found on board the vessel. The case of despatches found on board is not mentioned by article 47, but there ought to be no doubt--see below, -- 413--that the old customary rule that, although the vessel may not be condemned because there is no ground for capture, any despatches for the enemy found on board may, in a.n.a.logy with article 47, be confiscated, provided such despatches are not part of the postal correspondence carried on board.

It must be emphasised that the mere fact that a neutral vessel is rendering unneutral service, is not sufficient for her condemnation; for in addition _mens rea_ is required. Now as regards the four kinds of unneutral service which create enemy character, _mens rea_ is obviously always in existence, and therefore always presumed to be present. For this reason article 46, in contradistinction to article 45, does not mention anything concerning the knowledge by the vessel of the outbreak of hostilities. But as regards the other cases of unneutral service, article 45 provides that the vessel may not be confiscated if the vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the pa.s.sengers concerned. On the other hand, a vessel is deemed, according to article 45, to be aware of the existence of a state of war if she left an enemy port subsequent to the outbreak of hostilities, or a neutral port subsequent to the notification of the outbreak of hostilities to the Power to which such port belongs, provided that such notification was made in sufficient time.

Although the Declaration of London metes out the same punishment for the several kinds of unneutral service which it enumerates, it nevertheless makes a distinction, apart from the penalty, with regard to the treatment of the vessels captured for rendering unneutral service.

Article 45 provides for a neutral vessel captured for having rendered either of the two kinds of unneutral service mentioned in this article a treatment which is, in a general way, the same as that for a neutral vessel captured for the carriage of contraband. This means that the vessel does not lose her neutral character, and must under all circ.u.mstances and conditions be taken before a Prize Court, unless--see article 49 of the Declaration of London--the taking of her into a port of the capturing State would involve danger to the safety of the capturing vessel or to the success of the military operations in which she is engaged at the time. And an appeal from the national Prize Courts may be brought to the International Prize Court.

Article 46, on the other hand, provides, apart from the penalty, a treatment for a vessel captured for having rendered any of the four kinds of unneutral service enumerated in this article which, in a general way, is the same as that for a captured enemy merchantman. This means that such vessel acquires enemy character. Accordingly (see above, -- 89) all enemy goods on the vessel may be seized, all goods on board will be presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Further, the rules of articles 48 and 49 of the Declaration of London concerning the destruction of neutral vessels do not apply. Again, no appeal may be brought from the national Prize Courts to the International Prize Court by the owner of the s.h.i.+p except concerning the one question only, namely, whether the act of which she is accused has the character of unneutral service.[879]

[Footnote 879: The question as to whether, if the vessel has been destroyed by the captor, the innocent owners of the neutral goods on board may claim compensation, has to be decided in the same way as the question as to whether the owners of neutral goods on a destroyed enemy merchantman have a claim to compensation; see above, -- 194.]

[Sidenote: Seizure of Enemy Persons and Despatches without Seizure of Vessel.]

-- 413. According to the British[880] and American practice, as well as that of some other States, which has. .h.i.therto prevailed, whenever a neutral vessel was stopped for carrying persons or despatches for the enemy, these could not be seized unless the vessel were seized at the same time. The release, in 1861, during the American Civil War, of Messrs. Mason[881] and Slidell, who had been forcibly taken off the _Trent_, while the s.h.i.+p herself was allowed to continue her voyage, was based, by the United States, on the fact that the seizure of these men without the seizure of the vessel was illegal. Since, according to the Declaration of London, a neutral vessel rendering unneutral service of any kind is liable to be confiscated, it is evident that in such a case the enemy persons and despatches concerned may not be taken off the vessel unless the vessel herself is seized and brought into a port of a Prize Court. However, article 47 provides that any member of the armed forces of the enemy found on board a neutral merchant vessel may be taken off and made a prisoner of war, although there may be no ground for the capture of the vessel. Therefore, if a vessel carries individual members of the armed forces of the enemy in the ordinary course of her voyage,[882] or if she transports a military detachment of the enemy and the like without being aware of the outbreak of hostilities, the members of the armed forces of the enemy on board may be seized, although the vessel herself may not be seized, as she is not rendering unneutral service.

[Footnote 880: See Holland, _Prize Law_, -- 104.]

[Footnote 881: See above, -- 408, p. 519, note 3.]

[Footnote 882: Accordingly, in January 1912, during the Turco-Italian War, the Italian gunboat _Volturno_, after having overhauled, in the Red Sea, the British steamer _Africa_ going from Hodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other Turkish officers. Although the Declaration of London is not yet ratified by Great Britain, she did not protest. The case of the _Manouba_ ought likewise to be mentioned here. This French steamer, which plies between Ma.r.s.eilles and Tunis, was stopped on January 16, 1912, by an Italian cruiser in the Mediterranean, and twenty-nine Turkish pa.s.sengers, who were supposed to be Turkish officers on their way to the theatre of war, were forcibly taken off and made prisoners. On the protest of France, the captives were handed over to her in order to ascertain whether they were members of the Turkish forces, and it was agreed between the parties that the case should be settled by an arbitral award of the Permanent Court of Arbitration at the Hague, Italy a.s.serting that she had only acted in accordance with article 47 of the Declaration of London.]

The Declaration of London does not mention the case of enemy despatches embodying intelligence found on board such a neutral vessel as may not herself be captured for such carriage. For instance, in the case of a mail steamer pursuing her ordinary course and carrying a despatch of the enemy not in her mail bags but separately, the vessel may not, according to article 45, be seized. In this, and similar cases, may despatches be seized without the seizure of the vessel? It has been pointed out above, -- 409, that, in a case of necessity, self-preservation would justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy. This certainly fits the case of a vessel transmitting oral intelligence. But if a vessel carried despatches, the necessity of detaining her ceases through seizure of the despatches themselves. The question--see above, -- 412--as to whether in such cases the despatches may be seized without seizure of the vessel ought, therefore, in a.n.a.logy with article 47 of the Declaration of London, to be answered in the affirmative.

Quite different from the case of seizure of such enemy persons and despatches as a vessel cannot carry without exposing herself to punishment, is the case[883] where a vessel has such enemy persons and despatches on board as she is allowed to carry, but whom a belligerent believes it to be necessary in the interest of self-preservation to seize. Since necessity in the interest of self-preservation is, according to International Law, an excuse[884] for an illegal act, a belligerent may seize such persons and despatches, provided that such seizure is not merely desirable, but absolutely necessary[885] in the interest of self-preservation, as, for instance, in the case where an Amba.s.sador of the enemy on board a neutral vessel is on the way to submit to a neutral a draft treaty of alliance injurious to the other belligerent.

[Footnote 883: See Hall, -- 253; Rivier, II. p. 390.]

[Footnote 884: See above, vol. I. -- 129.]

[Footnote 885: See above, vol. I. -- 130.]

CHAPTER VI

VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS

I

VISITATION

Bynkershoek, _Quaest. jur. pub._ I. c. 14--Vattel, III. -- 114--Hall, ---- 270-276--Manning, pp. 433-460--Phillimore, III. ---- 322-344--Twiss, II. ---- 91-97--Halleck, II. pp. 255-271--Taylor, ---- 685-689--Wharton, III. ---- 325 and 346--Wheaton, ---- 524-537--Moore, VII. ---- 1199-1205--Bluntschli, ---- 819-826--Heffter, ---- 167-171--Geffcken in Holtzendorff, IV. pp. 773-781--Kluber, ---- 293-294--G. F. Martens, II. ---- 317 and 321--Ullmann, -- 196--Bonfils, Nos. 1674-1691--Despagnet, Nos. 717-721--Rivier, II.

pp. 423-426--Nys, III. pp. 682-692--Calvo, V. ---- 2939-2991--Fiore, III. Nos. 1630-1641, and Code, Nos. 1853-1877--Martens, II. -- 137--Kleen, II. ---- 185-199, 209--Gessner, pp. 278-332--Boeck, Nos.

767-769--Dupuis, Nos. 239-252, and _Guerre_, Nos.

189-204--Bernsten, -- 11--Nippold, II. -- 35--Perels, ---- 52-55--Testa, pp. 230-242--Ortolan, II. pp. 214-245--Hautefeuille, III. pp. 1-299--Holland, _Prize Law_, ---- 1-17, 155-230--U.S. Naval War Code, articles 30-33--Schlegel, _Sur la visite des vaisseaux neutres sous convoi_ (1800)--Mirbach, _Die volkerrechtlichen Grundsatze des Durchsuchungsrechts zur See_ (1903)--Loewenthal, _Das Untersuchungsrecht des internationalen Seerechts im Krieg und Frieden_ (1905)--Atherley-Jones, _Commerce in War_ (1906), pp.

299-360--Hirschmann, _Das internationale Prisenrecht_ (1912), ---- 33-34--Duboc in _R.G._ IV. (1897), pp 382-403--See also the monographs quoted above at the commencement of -- 391, Bulmerincq's articles on _Le droit des prises maritimes_ in _R.I._ X-XIII.

(1878-1881), and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, article 63.

[Sidenote: Conception of Right of Visitation.]