at most after those who laid them had lost control over them, and from laying anchored automatic contact mines which did not become harmless as soon as they had broken loose from their moorings. It also prohibited them from laying automatic contact mines off the coasts and ports of the enemy, with the sole object of intercepting commercial navigation.1 When anchored automatic contact mines were employed, every possible precaution was to be taken for the security of peaceful navigation. The belligerents were to provide, as far as possible, for these mines becoming harmless after a limited time, and, where they ceased to be under observation, to notify the danger zones as soon as military exigencies permitted by notice to mariners, which was also to be communicated to the Governments through the diplomatic channel. At the close of the war each Power was to remove the mines laid by it. There was no doubt, even when the convention was drawn up, that its stipulations were totally inadequate to secure the safety of neutral shipping, and it was for this reason that the British plenipotentiaries signed it with a reservation that the mere fact that it did not prohibit a particular act or proceeding must not be held to debar Great Britain from contesting its legitimacy. The Institute of International Law studied the matter at its meetings at Paris in 1910 and at Madrid in 1911, and produced a 'Réglementation 2 internationale de l'Usage des Mines sous-marines et Torpilles,' and at Oxford in 1914 it adopted five articles dealing with the problem in its Manuel de Guerre maritime. 1 France and Germany signed with reservations against this provision. * See Annuaire, xxiv. (1911), p. 301. The World War proved the Hague Convention to be even more unsatisfactory than had been foreseen. On the first day of the war a German vessel was sunk while laying mines in the North Sea, and on August 23, 1914, the British Admiralty announced that the Germans are continuing their practice of scattering mines indiscriminately upon the ordinary trade routes. These mines do not become harmless after a certain number of hours; they are not laid in connection with any definite military scheme. . . but but appear to be scattered on the chance of touching individual British war or merchant vessels.' Great Britain did not pursue this policy, but on October 2, 1914, announced a system of mine-fields in certain notified areas. As the war proceeded, Germany planted mines on other trade routes. Great Britain established other notified mine-fields, and Holland protested against both policies.1 Quarter. § 183. As soon as an attacked or counter-attacked Duty of vessel hauls down her flag and, therefore, signals that giving she is ready to surrender, she must be given quarter and seized without further firing. To continue an attack although she is ready to surrender, and to sink her and her crew, would constitute a violation of customary International Law, and would only, as an exception, be admissible in case of imperative necessity or of reprisals. § 184. Seizure is effected by securing possession of Seizure. the vessel through the captor sending an officer and some of his own crew on board. But if, for any reason, this is impracticable, the captor orders the captured vessel to lower her flag and to steer according to his orders. Seizure of the vessel includes seizure of all the goods thereon, although neutral merchandise will be restored by the Prize Court to its owner, as will 1 See details in Garner, i. §§ 214-215, 220-222. usually also personal effects1 of the captain, crew, and enemy passengers. There is no doubt that enemy merchantmen lying in an enemy port may there be seized, although the port itself is not occupied.2 But if a town is occupied after capitulation, and merchantmen owned by enemy subjects resident in that town are found in its port, they cannot be seized according to British practice,3 although they may by American 4 practice. Effect of § 185. The effect of seizure differs in the case of Seizure. private enemy vessels and public enemy vessels. Seizure of private enemy vessels may be described as parallel to occupation of enemy territory in land warfare. Since the vessel, and the individuals and goods thereon, are actually placed under the captor's authority, her officers and crew, and any private individuals on board, are for the time being submitted to the discipline of the captor, just as private individuals on occupied enemy territory are submitted to the authority of the occupant. Seizure of private enemy vessels does not, however, vest the property finally in the hands of the belligerent whose forces effected the capture. The prize has to be brought before a Prize Court, which, by confirming the capture through adjudication of the prize, makes the appropriation by the capturing belligerent final.? 1 See Westlake, pp. 144-155, The Fortuna, (1814) 1 Dod. 450; 3 The Ships taken at Genoa, (1803) ▲ Herrera v. United States and Diaz v. United States, (1912) 222 U.S. 558, 574. See Kingsbury in A.J., vi. (1912), pp. 650-658, and below, § 227 n. 5 Concerning the ultimate fate of the crew, see above § 85. It is asserted that a captured enemy merchantman may at once be converted by the captor into a man-of-war, but the cases of The Ceylon, (1811) and The Georgiana, (1814) 1 Dod. 105 and 397, which are quoted in favour of such a practice, are not decisive. See Higgins, War and the Private Citizen (1912), pp. 138-142. See below, § 192; and Smith, The Destruction of Merchant Ships On the other hand, the effect of seizure of public enemy vessels is their immediate and final appropriation. They may be either taken into a port, or at once destroyed. All individuals on board become prisoners of war, although, if perchance there should be on board a private enemy individual of no importance or value to the enemy, he would probably not be kept for long in captivity, but liberated in due time. As regards goods on captured public enemy vessels, there is no doubt that the effect of seizure is the immediate appropriation of such goods on the vessels concerned as are enemy property, and these goods may therefore be destroyed at once, if desirable. Should, however, neutral goods be on board a captured enemy public vessel, it is a moot point whether or no they share the fate of the captured ship. According to British practice they do, but according to American practice they do not.1 charged Religious, thropic § 186. Enemy vessels engaged in scientific discovery Immunity and exploration were, according to a general inter- of Vessels national usage in existence before the Second Hague with Conference of 1907, granted immunity from attack and Scientific, seizure in so far, and so long, as they themselves or Philanabstained from hostilities. The usage grew up in the Mission. eighteenth century. In 1766, the French explorer Bougainville, who started from St. Malo with the vessels La Boudeuse and L'Étoile on a voyage round the world, was furnished by the British Government with safeconducts. In 1776, Captain Cook's vessels Resolution and Discovery, sailing from Plymouth for the purpose of exploring the Pacific Ocean, were declared exempt from attack and seizure on the part of French cruisers by the French Government. Again, the French under International Law (1917), pp. 21-27. 1 See, on the one hand, The Fanny, (1814) 1 Dod. 443, and, on Count Lapérouse, who started on a voyage of exploration in 1785 with the vessels Astrolabe and Boussole, was secured immunity from attack and seizure. During the nineteenth century this usage became quite general, and had almost ripened into a custom; examples are the Austrian cruiser Novara (1859) and the Swedish cruiser Vega (1878). No immunity, however, was granted to vessels charged with religious or philanthropic missions. A remarkable case occurred during the Franco-German War. In June 1871, the Palme, a vessel belonging to the Missionary Society of Basle, was captured by a French man-of-war, and condemned by the Prize Court of Bordeaux. The owners appealed, and the French Conseil d'État set the vessel free, not because the capture was not justified, but because equity demanded that the fact that Swiss subjects owning sea-going vessels were obliged to sail them under the flag of another State, should be taken into consideration.1 The Second Hague Conference embodied the previous usage concerning immunity of vessels of discovery and exploration in a written rule, and by Article 4 of Convention XI. extended it to vessels with a religious, scientific, or philanthropic mission. The question, what is a philanthropic mission,' arose during the World War, when a German vessel, the Paklat, requisitioned by the German authorities at Tsing-tau at the outbreak of war with Japan to carry women and children to Tientsin, was captured on her way there by a cruiser, and condemned by the Hong 1 See Rivier, ii. pp. 343-344; Dupuis, No. 158; Boeck, No. 199; and above, vol. i. § 258. 2 (1915) 1 B. and C. P. C. 515. See also Garner, i. § 319, who discusses the case of The Amiral Ganteaume, a French steamer sunk by a German submarine while carry ing Belgian refugees to England soon after the outbreak of the World War. The position of the many ships chartered by the Belgian Relief Commission to carry supplies for the inhabitants of the occupied territory in Belgium which were sunk by German submarines is also discussed by Garner, i. § 328-330. |