according to which Denmark had to pay 650,000 dollars as compensation. But Article 5 of this treaty expressly declared that the present convention is only applicable to the cases therein mentioned, and, having no other object, may never hereafter be invoked by one party or the other as a precedent or a rule for the future.'1 Article 63 of the Declaration of London did not define the term 'forcible resistance,' and would not, therefore, have settled the point, even if it had been ratified. ance by § 425. Since Great Britain does not recognise the Resistright of convoy and has always insisted upon the right Neutral to visit neutral merchantmen sailing under the convoy Convoy. of neutral men-of-war, the question has arisen whether such merchantmen are regarded as resisting visitation in case the convoying men-of-war only, and not the convoyed vessels themselves, offer resistance. British practice has answered the question in the affirmative. The rule was laid down in 17992 and in 1804 3 by Sir William Scott in the cases of Swedish vessels captured while sailing under the convoy of a Swedish man-of war. Had the Declaration of London been ratified, under Articles 61 and 62, which recognise the right of convoy, resistance by a neutral convoy to visitation could not, 1 See Wheaton, §§ 530-537, and Taylor, § 693, p. 790. Wheaton was the negotiator of this treaty on the part of the United States. With the case of neutral merchantmen sailing under enemy convoy, the other case -see above, § 185-in which neutral goods are placed on board an armed enemy vessel is frequently confused. In the case of The Fanny, (1814) 1 Dod. 443, Sir William Scott condemned neutral Portuguese property on the ground that placing neutral property on board an armed vessel was equal to resistance against visita tion. But the Supreme Court of the 340. 3 The Elsebe, (1804) 5 C. Rob. 174. Deficiency of under ordinary circumstances, have been considered to be resistance on the part of the convoyed neutral merchantman. If, however, the commander of a convoy, after having refused to give the written information mentioned in Article 61 or to allow the investigation mentioned in Article 62, forcibly resisted visitation of the convoyed merchantmen by a belligerent cruiser, the question whether resistance by a convoy was equivalent to resistance by a convoyed vessel would still have arisen. § 426. The purpose of visit is to ascertain the nationPapers. ality of a vessel, the character of her cargo and passengers, and the ports from and to which she is sailing, and it is obvious that this purpose cannot be realised in case the visited vessel is deficient in her papers. As stated above,1 every merchantman ought to carry the following papers: (1) A certificate of registry or a sealetter (passport); (2) the muster-roll; (3) the logbook; (4) the manifest of cargo; (5) bills of lading, and (6) if chartered, the charter-party. Now, if a vessel is visited, and cannot produce one or more of the papers mentioned, she is suspect. Search is, of course, admissible for the purpose of verifying the suspicion; but it may be that search, while not producing any proof of guilt, does not dispel the suspicion. In such a case she may be seized and brought to a port for thorough examination. But, except in a case where she cannot produce either a certificate of registry or a sea-letter (passport), she ought not to be confiscated merely for deficiency in papers. Yet, if the cargo is also suspect, or if there are other circumstances which increase the suspicion, confiscation would be, I believe, in the discretion of the Prize Court.2 § 427. Mere deficiency of papers does not arouse the 1 vol. i. § 262. 'See Hall, § 247". p. 730, n. 2; and below, § 428 n. tion, De cealment same suspicion which a vessel incurs if she destroys 1 Spoliaor throws overboard any of her papers, defaces them facement, or conceals them, and, in particular, if she does any of and Conthese things when the visiting vessel comes in sight. of Papers. Whatever her cargo may be, a vessel may at once be seized without further search so soon as it becomes apparent that spoliation, defacement, or concealment of papers has taken place. The practice of the several States has hitherto differed with regard to other consequences of spoliation, defacement, or concealment of papers; but confiscation is certainly admissible in case other circumstances increase the suspicion.2 and False § 428. Very high suspicion is aroused if a visited Double vessel carries double papers, or false 3 papers, and she and she Papers. may certainly be seized. But the practice of the several States has differed with regard to the question whether confiscation is admissible on this ground alone. Whereas the practice of some States, such as Russia and Spain, has answered the question in the affirmative, British and American 5 practice has taken a more lenient view, and condemned such vessels only on a clear inference that the false or double papers were carried for the purpose of deceiving the belligerent by whom the capture was made, and not in other cases.7 capture of a vessel would be justified, Enemy with a Destina tion. Call at an § 428a. High suspicion is likewise aroused in case a Port of a ship with papers indicating a neutral destination proVessel ceeds to an enemy port. The practice formerly preNeutral vailing did not indeed admit capture and condemnation in such a case provided the vessel was not otherwise suspect. However, during the World War, in October 1914, the Allies laid down the following rule: 'A neutral vessel with papers indicating a neutral destination, which, notwithstanding the destination shown on the papers, proceeds to an enemy port, shall be liable to capture and condemnation if she is encountered before the end of her next voyage.' The Maritime Rights Order in Council of July 7, 1916, contained a corresponding rule with regard to to a neutral vessel carrying contraband. II CAPTURE Hall, § 277-Westlake, ii. pp. 309-312-Lawrence, § 191-Phillimore, iii. S$ 361-364-Twiss, ii. §§ 166-184-Halleck, ii. pp. 389-421-Taylor, § 691-Hershey, Nos. 521-522-Moore, vii. §§ 1206-1214-Bluntschli, § 860-Heffter, §§ 171, 191, 192-Geffcken in Holtzendorff, iv. pp. 777-780 -Rivier, ii. pp. 426-428-Nys, iii. pp. 695-710—Calvo, v. §§ 3004-3034 -Fiore, iii. Nos. 1644-1657, and Code, Nos. 1901-1912-Martens, ii. § 126-Kleen, ii. §§ 203-218-Gessner, pp. 333-356-Boeck, Nos. 770777-Dupuis, Nos. 253-281, and Guerre, Nos. 205-217-Bernsten, § 11Schramm, §§ 14-15-Nippold, ii. § 35-Perels, § 55-Testa, pp. 243-244Hautefeuille, iii. pp. 214-298-Holland, Prize Law, §§ 231-314-U.S. Naval War Code, Articles 46-50-Atherley-Jones, Commerce in War (1907), pp. 361-646-Hirschmann, Das internationale Prisenrecht (1912), parties interested cannot hope to 'An analogous case would be that 'It appeared sufficient that these cases in which there would be a reasonable excuse for the capture should be mentioned in the present Report, and should not be made the object of express provisions, since, otherwise, the mention of these two particular cases might have led to the supposition that they were the only cases in which a capture could be justified.' §§ 35-37-Wehberg, §§ 7 and 8-Garner, ii. §§ 474-493-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 Naval Conference of London on behalf of its Drafting Committee, Articles 48-54. Mode of § 429. From what has already been said regarding Grounds blockade, contraband, unneutral service, and visita- and tion, it is obvious that capture may take place either Capture. because the vessel, or the cargo, or both, are liable to confiscation, or because grave suspicion demands a further inquiry which can only be carried out in a port. Both cases are alike so far as all details of capture are concerned, and in the latter case Prize Courts may pronounce capture to have been justified, although no ground for confiscating either vessel or cargo has been detected. The mode of capture is the same as that for capture of enemy vessels.1 Capture Vessels, Conduct § 430. The effect of capture of neutral vessels is in Effect of every way different from the effect of capture of enemy of vessels, since the purpose of capture differs in these Neutral two cases. Enemy vessels are captured for the purpose and their of appropriating them in the exercise of the right of to Port. belligerents to appropriate all enemy property found on the open sea, or in the maritime territorial belt of either belligerent. On the other hand, neutral merchantmen are captured for the purpose of confiscating vessel or cargo, or both, as punishment for certain special acts, the punishment to be pronounced by a Prize Court after a thorough investigation into all the circumstances of the special case. Therefore, 1 See above, § 184. The 'Règlement international des Prises maritimes,' adopted by the Institute of International Law at its meeting at Heidelberg in 1887, regulates capture in §§ 45-62; see Annuaire, ix. (1888), p. 218. That capture may take place on the high seas, or in the territorial waters of belligerents, but not in neutral territorial waters, is a matter 2 See above, § 185. |