Visit. in using force to compel her to bring to. Once the vessel has been brought to, the man-of-war also brings to, keeping a reasonable distance. With regard to this distance, treaties very often stipulate either the range of a cannon shot, or half such width, or even a range beyond a cannon shot; but all this is totally impracticable.1 The distance must vary according to the requirements of the case, and according to wind and weather. The rules concerning the stopping of vessels for visitation apply also to visitation by belligerent aircraft. The order can in that case be given by hailing, or by some other sign. § 420. The vessel, having been stopped or brought to, is visited 2 by one or two officers sent in a boat from the man-of-war. These officers examine the papers of the vessel to ascertain her nationality, the character of her cargo and passengers, and the ports from and to which she is sailing. Instead of visiting the merchantman and inspecting her papers on board, the practice is followed, by the men-of-war of some States, of summoning the master of the merchantman with his papers on board the former and examining the papers there. If everything is found in order and there is no suspicion of fraud, the vessel is allowed to continue her course, a memorandum of the visit having been entered in her log-book. On the other hand, if the inspection of the papers shows that the vessel is carrying contraband or rendering unneutral service, or that she is for some other reason liable to capture, she is at once seized. But it may be that, although ostensibly everything is in order, there is nevertheless grave suspicion of fraud against the vessel. In such case she may be searched. 1 See Ortolan, ii. p. 220, and Perels, § 53, pp. 284, 285. 2 See above, vol. i. § 268, and Holland, Prize Law, §§ 195-216. § 421. Search at sea 1 is effected 2 by one or two officers, Search. and, if need be, a few men, in presence of the master of the vessel. Care must be taken not to damage the vessel or the cargo, and no force whatever must be applied. No lock must be forcibly broken open by the search-party; the master is to be required to unlock it. If he fails to comply with the demand, he is not to be compelled to do so, since his refusal to assist the search in general, or search of a locked part of the vessel or of a locked box in particular, is at once sufficient cause for seizing the vessel. Search being completed, everything removed has to be replaced with care. If the search has satisfied the searching officers, and dispelled all suspicion, a memorandum is entered in the logbook of the vessel, and she is allowed to continue her voyage. On the other hand, if search has brought contraband, or any other cause for capture to light, the vessel is seized. But since search can never take place so thoroughly on the sea as in a harbour, it may be that, although search has disclosed no proof to bear out the suspicion, grave suspicion still remains. In such a case she may be seized and brought into a port for the purpose of being searched there as thoroughly as possible. But the commander of a manof-war seizing a vessel in such a case must bear in mind that full indemnities must be paid to the vessel for loss of time and other losses sustained if finally she is found innocent, and the Prize Court declares that there was no reasonable ground of suspicion to justify the seizure of the vessel.3 Therefore, after a search 1 As to the general practice followed by the Allies during the World War of taking vessels into port for search, see below, § 421a. 2 See above, vol. i. § 269, and Holland, Prize Law, §§ 217-230. The Baron Stjernblad, (1917) 3 B. and C. P. C. 17; The Sigurd (No. 2), (1917) 3 B. and C. P. C. 87, Bringing Vessels for Search. at sea has brought nothing to light against the vessel, § 421a. During the World War, the United States into Port of America complained that British cruisers, instead of searching American vessels on the high seas at the time of visit, made a practice of taking them into port for search. The British Government urged in justification of this procedure1 that the size of the modern liner, the great amount of cargo carried by her, and the elaborate arrangements in vogue for concealing the identity of cargoes, made it impossible to carry out a thorough search on the high seas, especially as the danger of attacks from enemy submarines was so great, and the conditions during winter in the North Atlantic frequently render it impracticable for days together for a naval officer to board a vessel on her way to Scandinavian countries.' The British Notes added that ships had been taken into port for search as long ago as the American Civil War, and again during the Russo-Japanese War and the Second Balkan War. The diplomatic discussion was continued, but the Allied Governments adhered to the practice of taking vessels into port for search. Conse 6 § 422. If a neutral merchantman resists visit or quences of search, she is at once captured, and may be confiscated. The question whether the vessel only, or also Resist ance to Visitation. 1 The British Privy Council in The Zamora, (1916) 2 B. and C. P. C. 1, and the French Prize Court of Appeal in The Frederico (1915), R.G., xxii. (1915), Jurisprudence, p. 17, xxiv. (1917), Jurisprudence, p. 11, considered the practice justifiable. See Hall, p. 800. Concerning the Dutch claim for damages for two torpedoed Dutch vessels, the Bernisse and the Elve, which were torpedoed by a German submarine while being forcibly taken her cargo, could be confiscated for resistance is controversial. According to British1 and American theory and practice, the cargo as well as the vessel is liable to confiscation. But Continental 2 writers emphatically argue against this, and maintain that the vessel only is liable to confiscation. According to Article 63 of the unratified Declaration of London, resistance to the legitimate exercise of the right of visit, search, and capture was to involve in all cases the confiscation of the vessel, which by her forcible resistance acquired enemy character.3 For this reason such goods on board as belonged to the master or owner of the vessel might be treated as enemy goods and confiscated. Enemy goods on board might then likewise be confiscated, although when they were first shipped the vessel bore neutral character. Further, all goods on board were then presumed to be enemy goods, and the owners of neutral goods on board would have had to prove the neutral character of their goods. Lastly, no appeal was to lie from the national Prize Courts to the proposed International Prize Court by the owner of the ship except concerning the one question only, whether there was justification for capturing her on the grounds of forcible resistance. However, the declaration is unratified, and therefore not legally binding. Visit and search do not take place after a vessel has been captured for resistance, for the mere fact that she has resisted makes her liable to confiscation, and it becomes irrelevant whether visit and search would show her to be guilty or innocent. 4 § 423. According to the practice hitherto prevailing, What and also according to the unratified Declaration of constiLondon, a mere attempt on the part of a neutral mer- Resist 1 The Maria, (1799) 1 C. Rob. 340. 2 See Gessner, pp. 318-321. 3 See above, § 89. The Maria, (1799) 1 C. Rob. 340. tutes ance. Sailing under Enemy equiva lent to Resist ance. chantman to escape visitation does not in itself consti- For resistance, to be penal, must be forcible resist- § 424. Wheaton excepted, all writers would seem to agree that the fact of neutral merchantmen sailing Convoy under a convoy of enemy men-of-war is equivalent to forcible resistance on their part, whether they themselves intend to resist by force or not. But the Government of the United States of America in 1810 contested this principle. In that year, during war between Great Britain and Denmark, many American vessels sailing from Russia used to seek protection under the convoy of British men-of-war, whereupon Denmark declared all such American vessels to be good and lawful prizes. Several were captured without making any resistance whatever, and were condemned by Danish Prize Courts. The United States protested, and claimed indemnities from Denmark, and in 1830 a treaty between the parties was signed at Copenhagen,2 1 Another unsettled question is whether the crew can be punished as war criminals for resorting to armed resistance; Schramm, Das Prisenrecht (1913), p. 358, holds that 2 Martens, N.R., viii. p. 350. H |