part of the armed naval forces of a belligerent. As the North-German Confederation owned only a few menof-war, the creation of a volunteer fleet was intended. So the King of Prussia, as President of the Confederation, invited the owners of private German vessels to make them part of the German navy under the following conditions: Every ship should be assessed as to her value, and 10 per cent. of it should at once be paid in cash to the owner, as a price for the charter of the ship. The owner should engage the crew himself, but they should become for the time of the war members of the German navy, and wear the German naval uniform. The ship should sail under the German war flag, and be armed and adapted for her purpose by the German naval authorities. Should she be captured or destroyed by the enemy, the assessed value should be paid to her owners in full; but should she be restored after the war undamaged, the owner should retain the 10 per cent. received as charter price. All such vessels should only try to capture or destroy French men-ofwar, and, if successful, the owner should receive between £1500 and £7500 as a premium. The French Government considered this scheme a disguised evasion of the Declaration of Paris which abolished privateering, and requested the intervention of Great Britain. The British Government brought the case before the lawofficers of the Crown, who declared the German scheme to be substantially different from the revival of privateering, and consequently the British Government refused to object to it. The scheme, however, was never put into practice.1 Now, in spite of the opinion of the British law-officers, writers on International Law differ as to the legality of the above scheme; but, on the other hand, they are unanimous that not every scheme for a voluntary fleet 1 See Perels, § 34; Hall, § 181; Boeck, No. 211; Dupuis, Nos. 81-84. is to be rejected. Russia,1 in fact, from 1877 possessed a voluntary fleet. France 2 had before the World War made arrangements with certain steamship companies according to which their mail-boats had to be constructed on plans approved by the Government, commanded by officers of the French navy, and incorporated in the French navy at the outbreak of war. Great Britain from 1887 onwards entered into agreements with several powerful British steamship companies for the purpose of securing their vessels at the outbreak of hostilities; and the United States of America in 1892 made similar arrangements with the American Line.3 Matters were brought to a climax in 1904, during the Russo-Japanese War, through the cases of Peterburg and Smolensk. On July 4 and 6 of that year, these vessels, which belonged to the Russian volunteer fleet in the Black Sea, were allowed to pass the Bosphorus and the Dardanelles, which were closed 5 to menof-war of all nations, because they were flying the Russian commercial flag. They likewise passed the Suez Canal under the commercial flag; but, after leaving Suez, they converted themselves into men-ofwar by hoisting the Russian war flag, and began to exercise over neutral merchantmen all the rights of supervision which belligerents can claim for their cruisers in time of war. On July 13 Peterburg captured the British P. and O. steamer Malacca for alleged carriage of contraband, and put a prize-crew on board for the purpose of navigating her to Libau. But the British Government protested; the Malacca was released at Algiers on her way to Libau on July 27, and Russia 1 See Dupuis, No. 85. See Dupuis, No. 86. See Lawrence, §201, and Dupuis, Nos. 87-88. On the whole question see Pradier-Fodéré, viii. Nos. 3102 3103. 4 See the details of the career of these vessels in Lawrence, War, pp. 205 seq. See above, vol. i. § 197. agreed that Peterburg and Smolensk should no longer act as cruisers, and that all neutral vessels captured by them should be released. This case was the cause of the question of the conversion of merchantmen into men-of-war being taken up by the Second Hague Conference in 1907, and dealt with in Convention VII.1 This convention, which was signed by all the States represented at the conference except the United States of America, China, San Domingo, Nicaragua, and Uruguay, comprised twelve articles; its more important stipulations were the following: No converted vessel can have the status of a warship unless she is placed under the direct authority, immediate control, and responsibility of the Power whose flag she flies (Article 1). Such a vessel must, therefore, bear the external marks which distinguish the warships of her nationality (Article 2); the commander must be in the service of the State, must be duly commissioned, and his name must figure on the list of the officers of the military fleet (Article 3); and the crew must be subject to the rules of military discipline (Article 4). A converted vessel must observe the laws and usages of war (Article 5), and her conversion must as soon as possible be announced by the belligerent concerned in the list of the ships of his military fleet (Article 6).2 During the World War converted merchantmen were freely employed. The opinion, which largely prevailed before the World War, that by permitting the conversion of merchantmen into men-of-war privateering had been revived, is absolutely unfounded, for the rules of Convention VII. 1 See Wilson in A.J., ii. (1908), pp. 271-275; Lémonon, pp. 607622; Higgins, pp. 312-321; Dupuis, Guerre, Nos. 48-58; Nippold, ii. pp. 73-84; Scott, Conferences, pp. 568-576; Higgins, War and the Private Citizen (1912), pp. 115-165. 2 It must be specially observed that a merchantman which has been armed only for the purpose of defence is not thereby converted into a manof-war, See A.J., ix. (1915), p. 188. in no way abrogated the rule of the Declaration of Paris that privateering is and remains abolished. But the convention was unsatisfactory because it did not settle the questions where conversion may be performed, and whether it was permissible to reconvert into a merchantman, before the termination of the war, a vessel which during the war had been converted into a warship. The Powers could not come to an agreement on these two points, one party claiming that conversion could only be performed within a harbour of the converting Power, or an enemy harbour occupied by it, the other party defending the claim to convert on the high seas as well; and the preamble of Convention VII. stated expressly that the place where a conversion might be performed remained an open question. It was still open when the World War broke out, and Great Britain, which belonged to the party denying a right to convert on the high seas, at once made it known that if German vessels, after leaving American ports, were converted into men-of-war on the high seas, it would hold the United States Government responsible for resulting damage.1 Those Powers which claim that conversion 2 must not take place on the high seas may still refuse to acknowledge the public character of any vessel which has been converted on the high seas, and may still uphold their view that a converted vessel may not alternately claim the character and the privileges of a belligerent man-of-war and a chantman. Crews of § 85. In a sense, the crews of merchantmen owned The by subjects of a belligerent belong to its armed forces. MerchantFor those vessels are liable to be seized by enemy men- men. of-war, and, if attacked for that purpose, they may 1 See Garner, i. § 245, and A.J., ix. (1915), Special Supplement, pp. 222-223. 2 Concerning the question whether VOL. II. H an enemy merchantman, captured on defend 1 themselves, may return the attack, and eventually seize the attacking men-of-war. The crews of merchantmen become in such cases combatants, and enjoy all the privileges of the members of armed forces. But unless attacked, they must not commit hostilities, and if they do so, they are liable to be treated as criminals, just as are private individuals who commit hostilities in land warfare. Some writers 2 assert that, although merchantmen of the belligerents are not competent to exercise the right of visit, search, and capture towards neutral vessels, they may attack enemy vessels-merchantmen as well as public vessels -not merely for the purpose of defence, but even without having been previously attacked, and that, consequently, the crews must in such case enjoy the privileges due to members of the armed forces. But this opinion is absolutely without foundation nowadays;3 even in former times it was not generally recognised.4 In regard to the fate of the crews of captured merchantmen, a distinction is to be made according as to whether, or no, a vessel has defended herself against a legitimate attack. In the first case, members of the crew become prisoners of war, for by legitimately taking part in the fighting they have become members of the armed forces of the enemy. In the second case, Articles 5 to 7 of 5 1 The Catharina Elizabeth, (1804) 5 C. Rob. 232. See Wheaton, § 528; Twiss, ii. § 97; Phillimore, iii. § 340; Hall, § 182; Halleck, ii. p. 269; American Naval War Code, Article 10; Bordwell, p. 236; Fiore, Code, No. 1698. This rule had not been contested until shortly before the outbreak of the World War; but see now below, § 181 n.; Oppenheim and Triepel in Z. V., viii. (1914), pp. 154-169, 378-406; Higgins, Armed Merchantships (1914) and Defensively Armed Merchantships, etc. (1917); Wehberg, pp. 66, 256-258, 283-286; Smith, The Destruction of Merchantships under International Law (1917), pp. 17-21; Anderson and Stowell in the Proceedings of the American Society of International Law, xi. (1917), pp. 11-23; Garner, i. §§ 250264. 2 See Wheaton, § 357; Taylor, § 496; Walker, p. 135, and Science, p. 268; and International Law Notes, iii. p. 51, where the assertion is still made by Gregory, Scott, and others. 3 See below, § 181, and Hall, § 183. 4 See Vattel, iii. § 226, and G. F. Martens, ii. § 289. As regards the case of Captain Fryatt, see below, $181. 5 This follows indirectly from Article 8 of Convention XI. |