ing destruction of a captured enemy merchantman except in face of exceptional necessity, i.e. when necessary to secure the safety of the vessel making the capture or the success of the operations of war in which it is at the time engaged.'1 Be that as it may,2 in every case of destruction of a prize the captor must remove crew, ship papers, and, if possible, the cargo, beforehand, and must afterwards send crew, papers, and cargo to a port of adjudication for the purpose of satisfying the Prize Court that both the capture and the destruction were lawful. If destruction of a captured enemy merchantman can, as an exception, be lawful, the question as to compensation for the neutral owners of goods on board requires attention.3 It seems to be obvious that, if the destruction of the vessel herself was lawful, and if it was not possible to remove her cargo, no compensation need be paid. An illustrative case happened during the Franco-German War. On October 21, 1870, the French cruiser Desaix seized two German merchantmen, the Ludwig and the Vorwärts, but burned them because she could not spare a prize crew to navigate the prizes into a French port. The neutral owners of part of the cargo claimed compensation, but the French Conseil d'État refused to grant indemnities on the ground that the action of the captor was lawful.5 A similar decision was given by the Hamburg Prize Court in 1915 during the World War. The Glitra was an English merchantman captured by a German submarine, and then sunk, because she 1 See Annuaire, xxvi. p. 669. 2 The whole matter is thoroughly discussed by Boeck, Nos. 268-285; Dupuis, Nos. 262-268; and Calvo, v. $$ 3028-3034. As regards destruction of a neutral prize, see below, § 431. See Wright in A.J., xi. (1917), pp. 358-379. Wehberg, p. 295, and Smith, op. cit., pp. 54-58, object to this statement; but Nöldecke in Z. V., ix. (1916), pp. 447-458, approves of it. 5 See Boeck, No. 146; Barboux, pp. 53, 155; Calvo, v. § 3033; Dupuis, No. 262; Hall, § 269; Westlake, ii. p. 309. See also Article 3 of unratified Hague Convention XII. Destruction of Sub marines. could not be brought into a German port. The Norwegian owners of the cargo claimed compensation, but the Prize Court refused to grant it, on the ground that the sinking was lawful.1 § 194a. The question of the destruction of prizes has Prizes by become of particular importance through the use of submarines.2 That submarines can legitimately exercise the right of visit and search over enemy merchantmen, and capture them, there is not the slightest doubt. But a submarine can never spare a prize crew to navigate a prize into any port of adjudication, nor is there any room in a submarine to take on board the crew of the prize. For this reason the opinion is widely held that a submarine may never destroy a captured merchantman. But the practice of the Central Powers during the World War was very different. German submarines, even before the general order to torpedo without warning all enemy merchantmen within the war area proclaimed by Germany around the British Isles, destroyed several of their English prizes, after having given ten minutes to the crews to lower their boats and leave the ship. Although in these cases no lives were lost, because the crews were either picked up by passing vessels or otherwise reached the shore, they were exposed to considerable danger. After February 1915, German submarines frequently torpedoed both enemy and neutral merchantmen, and great loss of life was caused thereby. The most appalling case was that of the Lusitania, a transatlantic liner, which was torpedoed on May 7, 1915, near the coast of Ireland, and over 1100 non-combatant men, women, and children 1 See Deutsche Juristen Zeitung (1915), p. 456. See also the Hamburg case of The Indian Prince, A.J., x. (1916), pp. 930-935. 2 On this question see Garner, i. §§ 228-243; A.J., ix. (1915), pp. 666-680; Minor in the Proceedings of the American Society of International Law, x. (1916), pp. 51-60; Hyde, ibid., xi. (1917), pp. 26-35; Perrinjacquet in R.G., xxiv. (1917), pp. 117-203. 3 See above, i. § 50a. perished. Unfortunately, however, this was but one of many.1 of Prize. § 195. Although prizes have, as a rule, to be brought Ransom before a Prize Court, International Law nevertheless does not forbid the ransoming of the captured vessel, either directly after the capture, or after she has been conducted to port, but before adjudication. However, the practice of accepting and paying ransom, which grew up in the sixteenth 2 century, is in many countries now prohibited by Municipal Law. Thus, for instance, Great Britain by § 45 of the Naval Prize Act, 1864, prohibits ransoming except when specially provided for by Order in Council. Where ransom is accepted, a contract of ransom is made between the captor and the master of the captured vessel; t e latter gives a so-called ransom bill to the former, in which he promises the amount of the ransom. He is given a copy of the ransom bill for the purpose of a safe-conduct to protect his vessel from again being captured, provided that he keeps his course to the port agreed upon in the ransom bill. To secure the payment of ransom, an officer of the captured vessel can be detained as hostage; otherwise the whole of the crew is to be liberated with the vessel, ransom being an equivalent for both the restoration of the prize and the release of her crew from captivity. So long as the ransom bill is not paid, the hostage can be kept in captivity. But it is exclusively a matter for the Municipal Law of the State concerned to determine whether or no the captor can sue upon the ransom bill, if the ransom is not voluntarily paid.3 Should the capturing vessel, 1 The author had intended to discuss and condemn the German practice; but his manuscript does not indicate the precise form which his arguments would have taken. 2 See Senior in the Law Quarterly Review, xxxiv. p. 50. 3 See for British practice, prior to the Naval Prize Act, 1864, Cornu v. Blackburne, (1781) 2 Douglas 640; Anthon v. Fisher, (1782) 2 Douglas 649 n.; The Hoop, 1 C. Rob. 201; Hall, § 151; and for American practice, Goodrich and De Forest v, Gordon, (1818) 15 Johnson 6. Prize, Recapture. with the hostage or the ransom bill on board, be herself captured, the hostage is liberated, and the ransom bill loses its effect, and need not be paid.1 Loss of § 196. A prize is lost (1) when the captor intenespecially tionally abandons her, (2) when she escapes through being rescued 2 by her own crew, or (3) when she is recaptured. The property in a prize which, according to International Law, the belligerent whose forces made the capture acquires, provided that a Prize Court confirms the capture, is lost when the prize is lost; and it seems to be obvious, and everywhere recognised by Municipal Law, that as soon as a captured enemy merchantman succeeds in escaping, the title of the former owners revives ipso facto. But the case is different when an abandoned prize, whose crew have been taken on board the capturing vessel, is afterwards met and taken possession of by a neutral vessel, or by a vessel of her home State. It is certainly not for International Law to determine whether, or not, the original ownership revives through abandonment; this is a matter for Municipal Law. The case of recapture is likewise different from escape. Here too Municipal Law has to determine whether, or not, the former ownership revives, since International Law only lays down the rule that by recapture the property in the vessel reverts to the belligerent whose forces made the recapture. Municipal Law of the individual States has settled the matter in different ways. Thus for Great Britain § 40 of the Naval Prize Act, 1864, enacts that the recaptured vessel, except when she has been used by the captor as a ship of war, shall be restored to her former owner on his paying one-eighth to one-fourth of her value, as the Prize 1 The matter of ransom is discussed with great lucidity by Senior in the Law Quarterly Review, xxxiv. pp. 49-62; see also Twiss, ii. §§ 180-183; Boeck, Nos. 257-267; Dupuis, Nos. 269-277. * See Gregory in A.J., xi. (1917), pp. 315-326, Court may award, as prize salvage, whether the recapture is made before or after the enemy Prize Court had confirmed the capture. Other States restore a recaptured vessel only when the recapture is made within twenty-four hours 1 after capture, or before the captured vessel is conducted into an enemy port, or before she is condemned by an enemy Prize Court. Prize. § 197. Through being captured, and afterwards con- Fate of demned by a Prize Court, a captured enemy vessel and captured enemy goods 2 become, as already explained, the property of the belligerent whose forces made the capture. But according to the Declaration of Paris, neutral goods, contraband excepted, found on enemy ships may not be condemned. Nevertheless, all goods found on enemy vessels are presumed to be enemy unless claimed as neutral by neutral owners; moreover, only neutral merchandise is exempt from confiscation, and not neutral goods other than merchandise. Further, neutral mortgagees 5 or pledgees of enemy vessels, or enemy cargoes, have no claim to be indemnified out of the proceeds of their sale. 3 What becomes of the prize after condemnation is not for International Law, but for Municipal Law, to determine. A belligerent can hand the prize over to the captors, or keep her for himself, or sell her and divide the whole or part of the proceeds among the captors, or among members of the naval forces generally. For Great Britain the Naval Prize Act, 1918,7 established a naval prize fund into which the proceeds of sale of 1 For instance, France; see Dupuis, Nos. 278-279. 2 It does not, of course, matter whether the goods concerned were captured on enemy ships or on merchantmen sailing under the flag of the capturing belligerent. See above, $$ 102, 177 n. 3 See above, § 90. The Schlesien, (1914) 1 B. and 5 The Marie Glæser, (1914) 1 B. The Odessa, (1914) 1 B. and 7 8 & 9 Geo. v. c. 30. |