CHAPTER V

UNNEUTRAL SERVICE

I

THE DIFFERENT KINDS OF UNNEUTRAL SERVICE

Hall, §§ 248-253-Lawrence, §§ 260-262-Westlake, ii. pp. 302-306Phillimore, iii. §§ 271-274-Halleck, ii. pp. 305-344-Taylor, §§ 667-673 -Walker, § 72—Wharton, iii. § 374-Wheaton, §§ 502-504 and Dana's note 228-Moore, vii. §§ 1264-1265-Hershey, Nos. 513-515-Bluntschli, §§ 815-818-Heffter, § 161a-Geffcken in Holtzendorff, iv. pp. 731738-Ullmann, § 192-Bonfils, Nos. 1584-1588-Despagnet, Nos. 716716 bis-Rivier, ii. pp. 388-391-Nys, iii. pp. 671-678-Calvo, v. §§ 2796-2820-Fiore, iii. Nos. 1602-1605, and Code, Nos. 1859-1863Martens, ii. § 136-Kleen, i. §§ 103-106-Boeck, Nos. 660-669-Pillet, pp. 330-332-Gessner, pp. 99-111-Perels, § 47-Testa, p. 212-Dupuis, Nos. 231-238, and Guerre, Nos. 172-188-Bernsten, § 9-Nippold, ii. § 35-Schramm, § 11-Holland, Prize Law, §§ 88-105-U.S. Naval War Code, Articles 16 and 20-Hautefeuille, ii. pp. 173-188-Ortolan, ii. pp. 209-213-Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-225-Marquardsen, Der Trent-Fall (1862), pp. 58-71-Hirsch, Kriegskonterbande und verbotene Transporte in Kriegszeiten (1897), pp. 42-55-Takahashi, International Law during the Chino-Japanese War (1899), pp. 52-72-Vetzel, De la Contrebande par Analogie en Droit maritime internationale (1901)—Atherley-Jones, Commerce in War (1907), pp. 304-315-Hirschmann, Das internationale Prisenrecht (1912), §§ 31-32-Pastureau, Des Transports interdits aux Neutres (1912)-Wehberg, pp. 123-132-Garner, ii. §§ 538-545-See also the monographs quoted above at the commencement of § 391, and the General Report presented to the International Naval Conference of London on behalf of the Drafting Committee, Articles 45-47, Cd. 4554, p. 55.

neutral

§ 407. Before the Naval Conference of London held Unin 1908, the term unneutral service had been used by Service in several writers with reference to the carriage by neutral general. vessels of certain persons and despatches for the enemy. The term had been introduced to distinguish such

carriage of persons and despatches from the carriage of contraband, with which it was often confounded. Since contraband consists of certain goods only, and never of persons or despatches, a vessel carrying persons and despatches for the enemy does not carry contraband; 1 and there is another important difference. Carriage of contraband need not necessarily, and in most cases in practice does not, take place in the direct service of the enemy. On the other hand, carriage of persons and despatches for the enemy always does take place in the direct service of the enemy, and, consequently, represents much more intensive assistance to him, and a much more intimate connection with him than carriage of contraband. For these reasons, separate treatment for carriage of contraband and for carriage of persons and despatches was certainly considered desirable by many publicists. Those among them who did not adopt the term unneutral service, on account of its somewhat misleading character, preferred 2 the expression analogous of contraband, because in practice maritime transport for the enemy was always treated as analogous to, although not as identical with, carriage of contraband.3

The unratified Declaration of London sought to place the whole matter upon a new and very much enlarged basis, for Articles 45 to 47 treated, under the heading De l'assistance hostile-the official English translation of which was unneutral service-not only of carriage of persons for the enemy by a neutral vessel, but also of transmission of intelligence in his interest,

This was recognised in The Yangtsze Insurance Association v. Indemnity Mutual Marine Assurance Company, [1908] 1 K.B. 910; [1908] 2 K.B. 504.

2 It was also preferred in the first edition of this work. But after the official adoption, in the translation

of the unratified Declaration of

London, of the term unneutral service, it was useless to oppose it.

3 Although-see above, §§ 173-174 -prevention of unneutral service to the enemy is a means of sea warfare, it chiefly concerns neutral commerce, and is therefore more conveniently treated with neutrality.

of taking a direct part in the hostilities, and of a number of other acts. The unratified declaration made a broad distinction between two kinds of unneutral service, meting out for the one treatment analogous in a general way to the treatment of contraband, and for the other treatment analogous to that of enemy merchant vessels. Carriage of individual members of the armed forces of the enemy, and a certain case of transmission of intelligence in the interest of the enemy, constituted the first kind; and four groups of acts bestowing enemy character on the vessel concerned constituted the second kind.

At the outbreak of the World War the Allies adopted the rules relating to unneutral service contained in the unratified Declaration of London, and applied them (subject to reprisals 1) without modification until the whole declaration was abandoned in July 1916. Thereafter the customary rules prevailing before the Naval Conference of London again became applicable. After that date, however, few (if any) cases of unneutral service came before Prize Courts in which general principles were laid down or applied and as conditions have changed greatly since the old customary rules grew up, the present position of the law of unneutral service is unsatisfactory.

of Persons

§ 408. Either belligerent may punish neutral vessels Carriage for carrying, in the service of the enemy, certain persons. for the Such persons included, according to the customary Enemy. rules of International Law prevailing before the unratified Declaration of London, not only members of the armed forces of the enemy, but also individuals who, though not yet members of the armed forces, would have become so as soon as they reached their place of destination, and, thirdly, non-military individuals in the service of the enemy who were either in

such a prominent position that they could be made prisoners of war, or were going abroad as agents for the purpose of fostering the cause of the enemy. Thus, for instance, if the head of the enemy State, or one of his cabinet ministers, fled the country to avoid captivity, the neutral vessel that carried him could have been punished, as could also the vessel carrying an agent of the enemy sent abroad to negotiate a loan and the like. However, the mere fact that enemy persons were on board a neutral vessel did not in itself prove that they were carried by the vessel for the enemy, and in his service. This was the case only when the vessel knew of the character of the persons and nevertheless carried them, thereby acting in the service of the enemy, or when the vessel was directly hired by the enemy for the purpose of transporting the individuals concerned. Thus, for instance, if ablebodied men booked their passages on a neutral vessel to an enemy port with the secret intention of enlisting in the forces of the enemy, the vessel could not be considered as carrying persons for the enemy; but she could be so considered, if an agent of the enemy openly booked their passages. Thus, further, if the fugitive head of the enemy State booked his passage under a false name, and concealed his identity from the vessel, she could not be considered as carrying a person for the enemy; but she could be so considered, if she knew whom she was carrying, because she was then aware that she was acting in the service of the enemy. As regards a vessel directly hired by the enemy, there could be no doubt that she was acting in the service of the enemy. Thus the American vessel Orozembo1 was in 1807, during war between England and the Netherlands, captured and condemned because, although chartered by a merchant in Lisbon ostensibly

16 C. Rob. 430.

to sail in ballast to Macao and to take from there a cargo to America, she received, by order of the charterer, three Dutch officers and two Dutch civil servants, and sailed, not to Macao, but to Batavia. The American vessel Friendship1 was likewise in 1807, during war between England and France, captured and condemned, because she was hired by the French Government to carry ninety shipwrecked officers and sailors home to a French port.

According to British practice prevailing before the unratified Declaration of London, a neutral vessel was considered as carrying persons in the service of the enemy even if she had been forcibly constrained by the enemy to carry them, or if she was bona fide in ignorance of the status of her passengers. Thus, in 1802, during war between Great Britain and France, the Swedish vessel Carolina 2 was condemned by Sir William Scott for having carried French troops from Egypt to Italy, although the master endeavoured to prove that the vessel was forced to render the transport service; and the above-mentioned vessel Orozembo was condemned,3 although her master was ignorant of the service for the enemy on which he was engaged:

. . . In cases of bona fide ignorance there may be no actual delinquency; but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done or at least repeated,' said Sir William Scott.4

1 6 C. Rob. 420.

24 C. Rob. 256.

3 See Phillimore, iii. § 274, and Holland, Prize Law, §§ 90-91. Hall, § 249 n., reprobates the British practice. During the Russo-Japanese War only one case of condemnation of a neutral vessel for carrying persons for the enemy is recorded, that of The Nigretia, a vessel which endeavoured to carry into Vladivostok the escaped captain and lieu

tenant of the Russian destroyer Ratstoropny; see Takahashi, pp. 639641, and Hurst and Bray, ii. p. 201.

4 It should be mentioned that, according to the customary law hitherto prevailing, the case of diplomatic agents sent by the enemy to neutral States was an exception to the rule that neutral vessels may be punished for carrying agents sent by the enemy. The importance of this exception became apparent in