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taken off the Trent, while the ship herself was allowed to continue her voyage, was based by the United States on the fact that the seizure of these men without the seizure of the vessel was illegal.

Since, according to the unratified Declaration of London, a neutral vessel rendering unneutral service of any kind was liable to be confiscated, it is evident that in such a case the enemy persons and despatches concerned might not be taken off the vessel unless the vessel herself was seized and brought into a port of a Prize Court. However, Article 47 provided that any member of the armed forces of the enemy found on board a neutral merchant vessel might be taken off and made a prisoner of war, although there might be no ground for the capture of the vessel. Therefore, if a vessel carried individual members of the armed forces of the enemy in the ordinary course of her voyage,1 or if she transported a military detachment of the enemy and the like without being aware of the outbreak of hostilities, the members of the armed forces of the enemy on board might be seized, although the vessel herself might not be seized, as she was not rendering unneutral service.

The Declaration of London did not mention the case of enemy despatches embodying intelligence found on board

1 Accordingly, in January 1912, during the Turco-Italian War, the Italian gunboat Volturno, after having overhauled, in the Red Sea, the British steamer Africa going from Hodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other Turkish officers. Although the Declaration of London was not ratified by Great Britain, she did not protest. The case of The Manouba ought likewise to be mentioned here. This French steamer, which plied between Marseilles and Tunis, was captured on January 18, 1912, by the Agordat, an Italian torpedo boat in the Mediterranean, brought to Cagliari, and then released after twenty-nine Turkish passengers, who were sup

posed to be Turkish officers on their way to the theatre of war, had been forcibly taken off and made prisoners. On the protest of France, it was agreed between the parties that the case should be settled by an arbitral award of the Permanent Court of Arbitration at the Hague, Italy asserting that she had only acted in accordance with Article 47 of the Declaration of London. The court, on May 6, 1913, gave its award in favour of France, because the commander of the Agordat did not demand from the Manouba the handing over of the Turks, but captured her. See Rapisardi-Mirabelli in R.I., 2nd Ser. xv. (1913), pp. 135-138, and Ruzé in R.I., 2nd Ser. xvi. (1914), pp. 128-136.

such a neutral vessel as might not herself be captured for such carriage. For instance, if a mail steamer, pursuing her ordinary course, carried a despatch of the enemy, not in her mail-bags, but separately (in which case, according to Article 45, the vessel was not liable to seizure), might despatches be seized without the seizure of the vessel ? The question ought to be answered in the affirmative.

However, the rules of the Declaration of London are not legally binding.

1

Quite different from the case of the seizure of such enemy persons and despatches as a vessel cannot carry without exposing herself to punishment, is the case 1 where a vessel has such enemy persons and despatches on board as she is allowed to carry, but a belligerent believes it to be necessary in the interest of self-defence to seize them. Since necessity in the interest of selfpreservation is, according to International Law, an excuse 2 for an illegal act, if such act is necessary in self-defence, a belligerent may seize such persons and despatches, provided that their seizure is not merely desirable, but absolutely necessary 3 in the interest of self-defence. For instance, seizure of an enemy ambassador on board a neutral vessel would be justifiable if he was on the way to submit to a neutral a draft treaty of alliance injurious to the other belligerent.

Enemy

§ 413a. Different too is the case where a vessel has Seizure of enemy persons on board whom she is allowed to carry, Re but a belligerent orders them to be seized as a measure servists during of reprisals. Notable cases of this kind occurred the World during the World War. On November 1, 1914, the British Foreign Office gave notice that 'In view of the action taken by the German forces in Belgium and France of removing as prisoners of war all

1 See Hall, § 253; Rivier, ii. p.

390.

persons

2 See above, vol. i. § 129.

3 See above, vol. i. § 130.

War.

who are liable to military service, His Majesty's Govern-
ment have given instructions that all enemy reservists
on neutral vessels should be made prisoners of war.'
The French Government published a similar notice.
In consequence, all enemy subjects of military age
found on board neutral vessels on the high seas were
taken off by the cruisers of the Allies and made prisoners
of war.1 It is asserted that sixty-four neutral vessels
were thus interfered with, and that about 3500 subjects
of the Central Powers were taken off them and made
prisoners of war. To mention a few examples: 2 the
Italian steamer Ancona, sailing from New York to
Italy, was held up by an English cruiser near Gibraltar,
and seventy German passengers were removed and
taken to Gibraltar as prisoners of war. The Dutch
liner New Amsterdam was stopped by a French cruiser
on the high seas off Brest, and 400 Germans and 250
Austrians were removed and made prisoners of war.
Of the protests of the neutral Governments affected,
only those of the United States of America were of
any avail.
When the American steamer Windber,
two days after having left Colon, was stopped in
November 1914 by the French cruiser Condé and
August Piepenbrink, a German waiter, was taken off,
brought to Kingston in Jamaica, and detained as a
prisoner of war, the United States protested, and
after some correspondence, the French and British
Governments consented to set him free as a friendly
act while reserving the question of principle involved.❜3
Again when, in February 1916, the American steam-
ship China was stopped by the British cruiser Laurentic
on the high seas about ten miles from the entrance to
the Yang-tze-kiang and twenty-eight Germans, eight

1 The legality of this measure of reprisals by the Allies may well be doubted. But see Wehberg, p. 315.

2 For others, see Garner, ii. §

539.

See A.J., ix. (1915), Special Supplement, pp. 353-360, and above, vol. i. § 313 n.

11

Austrians, and two Turks were taken off, carried to Hong-Kong, and there detained as prisoners of war, the United States Government protested, and after some correspondence the prisoners were set free, although Great Britain reserved the question of principle.1

1 See A.J., x. (1916), Special Supplement, pp. 427-432.

Concep

CHAPTER VI

VISITATION, CAPTURE, AND TRIAL OF
NEUTRAL VESSELS

I

VISITATION

Bynkershoek, Quaestiones Juris publici, i. c. 14-Vattel, iii. § 114-Hall, §§ 270-276-Manning, pp. 433-460-Phillimore, iii. §§ 322-344-Twiss, ii. §§ 91-97-Halleck, ii. pp. 271-304-Taylor, §§ 685-689-Wharton, iii. §§ 325, 346-Wheaton, §§ 524-537-Moore, vii. §§ 1199-1205Hershey, Nos. 516-520-Bluntschli, §§ 819-826-Heffter, §§ 167-171Geffcken in Holtzendorff, iv. pp. 773-781-Klüber, §§ 293-294-G. F. Martens, ii. §§ 317, 321-Ullmann, § 195-Bonfils, Nos. 1674-1691Despagnet, Nos. 717-721-Rivier, ii. pp. 423-426-Nys, iii. pp. 679-690 -Calvo, v. §§ 2939-2991-Fiore, iii. Nos. 1630-1641, and Code, Nos. 1876-1900-Martens, ii. § 137-Kleen, ii. §§ 185-199, 209-Gessner, pp. 278-332-Boeck, Nos. 767-769-Dupuis, Nos. 239-252, and Guerre, Nos. 189-204-Bernsten, § 11-Schramm, §§ 13-14-Nippold, ii. § 35-Perels, §§ 52-55-Testa, pp. 230-242-Ortolan, ii. pp. 214-245-Hautefeuille, iii. pp. 1-298-Holland, Prize Law, §§ 1-17, 155-230-U.S. Naval War Code, Articles 30-33-Schlegel, Sur la Visite des Vaisseaux neutres sous Convoi (1800)-Mirbach, Die völkerrechtlichen Grundsätze des Durchsuchungsrechts zur See (1903)-Loewenthal, Das Untersuchungsrecht des internationalen Seerechts in Krieg und Frieden (1905)—Atherley-Jones, Commerce in War (1907), pp. 299-360-Hirschmann, Das internationale Prisenrecht (1912), §§ 33-34-Wehberg, § 7-Garner, ii. § 500-Duboc in R. G., iv. (1897), pp. 382-403-See also the monographs quoted above at the commencement of § 391, Bulmerincq's articles on Le Droit des Prises maritimes in R.I., x.-xiii. (1878-1881), and the General Report presented to the International Naval Conference of London on behalf of the Drafting Committee, Article 63, Cd. 4554, p. 63.

§ 414. The right of visitation1 is the right of belliRight of gerents to visit and, if need be, search neutral merchant

tion of

Visita

tion.

This right of visitation is not an independent right, but is involved in the right of either belligerent-see above, § 314 - to punish neutral vessels breaking blockade, carrying contraband, and rendering unneutral

service. It is a right, in contradis tinction to the duty, of every bel ligerent to visit an enemy merchant. man if he desires to capture her. See Oppenheim in Z. V., viii. (1914), pp. 154-169.

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