war, and from hatred of one of the belligerents, were to attack and sink his merchantmen, she would have to have been considered, and could therefore have been treated as, a pirate. (2) There was, secondly, the case of a neutral vessel which sailed under the orders, or the control, of an agent placed on board by the enemy Government.1 The presence of such agent, and the fact that the vessel sailed under his orders or control, showed clearly that she was really for all practical purposes part and parcel of the enemy forces. (3) There was, thirdly, the case of a neutral vessel in the exclusive employment of the enemy. This could have occurred in two different ways: either the vessel might have been rendering a specific service in the exclusive employment of the enemy, as, for instance, did those German merchantmen during the Russo-Japanese War which acted as colliers for the Russian fleet en route for the Far East; or the vessel might be chartered by the enemy so that she was entirely at his disposal for any purpose he might choose, whether connected with the war or not.2 (4) There was, fourthly and lastly, the case of a neutral merchantman exclusively appropriated at the time either to the transport of enemy troops, or to the transmission of intelligence for the enemy. This case is different from the case-provided for by Article 45 (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 in that case a vessel merely rendered a specific 1 See The Thor, (1914) 1 B. and C. P. C. 229; The Hanametal, (1914) 1 B. and C. P. C. 347. 2 Three cases of interest occurred in 1905, during the Russo-Japanese War. The Industrie (Takahashi, p. 732; Hurst and Bray, ii. p. 323), a German vessel, and a French vessel, The Quang-nam (Takahashi, p. 735; Hurst and Bray, ii. p. 343), were condemned for being in the employ of Russia as reconnoitring vessels. The Australia (Hurst and Bray, ii. p. 373), an American vessel, was condemned for having been chartered by the Russian Government for the carriage of cargo and having a Russian official on board.-During the World War the interesting case of The Zambesi, (1914) 1 B. and C. P. C. 358, occurred, but she was a ship belonging to one belligerent and rendering service to another. service, in this case the vessel is for the time being wholly and continuously 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 was considered to have lost her neutral character, even if, at the moment an enemy cruiser searched her, she was engaged neither in the transport of troops nor in the transmission of intelligence. And it made no difference, whether the vessel was engaged by the enemy and paid for the transport of troops or the transmission of intelligence,1 or whether she rendered the service 2 gratuitously. However, the provisions of the Declaration of London have not secured ratification, and are therefore not legally binding. Capture for Un Service. neutral II CONSEQUENCES OF UNNEUTRAL SERVICE See the literature quoted above at the commencement of § 407. § 411. According to customary rules of International Law, adopted also in the unratified Declaration of London, a neutral vessel may be captured if visit or search establishes the fact, or arouses grave suspicion, that she is rendering unneutral service to the enemy. Such capture may take place anywhere on the open sea or in the territorial maritime belt of either belligerent. Mail steamers are, in principle, not exempt from capture for unneutral service. Although, according to Article 1 of Convention XI., the postal correspondence of belligerents and neutrals, whether official or 1 During the World War the Italian Prize Court condemned an Albanian vessel, La Bella Scutarina, for transmitting intelligence to the Austrians. 2 As regards the meaning of the term transmission of intelligence, see above, § 409. private in character, found on board a vessel on the sea is inviolable,1 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 2 not exempt from the laws and customs of naval war respecting neutral merchantmen. A mail-boat is, therefore, exposed as much as any other merchantman to capture for rendering unneutral service. Capture is allowed only so long as the vessel is in delicto, i.e. during the time in which she is rendering unneutral service or is being pursued for having done so. for Un § 412. According to the practice prevailing before Penalty the Naval Conference of London, a neutral vessel neutral captured for carriage of persons or despatches in the Service. service of the enemy could be confiscated. Moreover, according to British 3 practice, such part of the cargo as belonged to the owner of the vessel was likewise confiscated.4 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, if they were of such a character as would have made a vessel which was cognisant of their character liable to punishment for transporting them for the enemy. The unratified Declaration of London recognised these three rules. Articles 45 and 46 declared any vessel rendering any kind of unneutral service to the enemy liable to confiscation, and also such part of the cargo as belonged to the owner of the confiscated vessel. And Article 47 1 See above, §§ 191, 319. 2 See Article 2. 3 The Friendship, (1807) 6 C. Rob. 420; The Atalanta, (1808) 6 C. Rob. 440. See Holland, Prize Law, $$ 95 4 See, however, The Hope, (1808) 6 provided that, although a neutral vessel might not be liable to condemnation, the capturing State might nevertheless detain as prisoners of war any members of the armed forces of the enemy who were found on board. The case of despatches found on board was not mentioned by Article 47. The mere fact that a neutral vessel is rendering unneutral service is not sufficient for her condemnation; 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, did not refer to the knowledge of the vessel of the outbreak of hostilities. But as regards the other cases of unneutral service, Article 45 provided that the vessel might not be confiscated if the vessel was encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, had had no opportunity of disembarking the passengers concerned. On the other hand, a vessel was to be deemed, according to Article 45, to be aware of the existence of a state of war if she had 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 belonged, provided that such notification was made in sufficient time. Although the unratified Declaration of London meted out the same punishment for the several kinds of unneutral service which it enumerated, it did make a distinction with regard to the treatment in other respects of vessels captured for rendering unneutral service. Article 45 provided for a neutral vessel captured for having rendered either of the two kinds of unneutral service mentioned in it treatment in a general way the same as that of a neutral vessel captured for the carriage of contraband. The vessel did not lose her neutral character, and had under all circumstances and conditions to be taken before a Prize Court, unless-see Article 49-to take her into a port of the capturing State would have involved danger to the safety of the capturing vessel or to the success of the military operations in which she was engaged at the time. And an appeal from the national Prize Courts was to lie to the proposed International Prize Court. Article 46, on the other hand, provided treatment for a vessel captured for having rendered any of the four kinds of unneutral service enumerated in it which, in a general way, was the same as that of a captured enemy merchantman. Such a vessel acquired enemy character. Accordingly, all enemy goods on the vessel might be seized, all goods on board were to be presumed to be enemy goods, and the owners of neutral goods on board were to have to prove their neutral character. Further, the rules of Articles 48 and 49 concerning the destruction of neutral vessels were not to apply. Again, no appeal was to lie from the national Prize Courts to the International Prize Court by the owner of the ship except concerning the one question, whether the act of which she was accused had the character of unneutral service.2 However, the rules of the declaration are not legally binding, and the old customary rules are still applicable. Enemy patches § 413. According to the British 3 and American Seizure of practice, as well as that of some other States, which Persons prevailed prior to the Naval Conference of London, and Deswhenever a neutral vessel was stopped for carrying without persons or despatches for the enemy, these could not Vessel. be seized unless the vessel was seized at the same time. The release, in 1861, during the American Civil War, of Messrs. Mason and Slidell, who had been forcibly 1 See above, § 89. 4 * The question whether, if the vessel was destroyed by the captor, the innocent owners of the neutral goods on board might claim compensation, would have had to be decided in the same way as the question whether the owners of See Holland, Prize Law, § 104. Seizure of |