Destruction of Prizes. although the effect of capture of a neutral vessel is that the vessel, and the persons and goods thereon, are placed under the captor's authority, her officers and crew never become prisoners of war. They are indeed to be detained as witnesses for the trial of the vessel and cargo, but nothing stands in the way of releasing such of them as are not wanted for that purpose. As regards passengers, if any, they have to be released as soon as possible, with the exception of those enemy persons who may be made prisoners of war. Regarding the conduct of neutral vessels to a port of a Prize Court, whether captured by a belligerent cruiser or by military aircraft, the same is valid as regards conduct of captured enemy vessels 1 to such port. 1 § 431. That, as a rule, captured neutral vessels Neutral may not be sunk, burned, or otherwise destroyed has always been universally recognised, just as that captured enemy merchantmen may not, as a rule, be destroyed.2 But it has long been a moot question whether captured neutral vessels as well as captured enemy vessels might be destroyed in exceptional cases instead of being brought before a Prize Court. British 3 practice did not, as regards her neutral owner, hold the captor justified in destroying a neutral vessel, however exceptional the case might have been, and however meritorious the destruction of the vessel from the point of view of the Government of the captor. For this reason, should a captor, for any motive whatever, have destroyed a neutral prize, full indemnities had to be paid to the owner, although, if brought into a port of a Prize Court, condemnation of vessel and cargo would have been pronounced beyond doubt. 1 See above, § 193. See Smith, The Destruction of The Acteon, (1815) 2 Dod. 48; Leucade, (1855) Spinks 217. See Phillimore, iii. § 333; Twiss, ii. § 166; Hall, § 277; Holland, Letters to the Times' upon War and Neutrality (1909), pp. 140-150; Garner in A.J., x. (1916), pp. 12-41. The rule was that a neutral prize must be abandoned, if for any reason it could not be brought to a port of a Prize Court. But the practice of other States did not recognise this British rule. The question became of great importance in 1905, during the RussoJapanese War, when Russian cruisers sank the British vessels Hipsang, Knight Commander, Oldhamia, St. Kilda, Ikhona, and the German vessels Thea and Tetartos, and the Danish vessel Prinsesse Marie.1 Russia paid damages to the owners of the Ikhona, St. Kilda, Thea, Tetartos, and Prinsesse Marie, because her Prize Courts declared that their capture was not justified, but she refused to pay damages to the owners of the other vessels destroyed, because her Prize Courts considered them to have been justly captured. The Declaration of London proposed to settle the matter by a compromise. Recognising that neutral prizes may not as a rule be destroyed, and admitting only one exception to the rule, it empowered the captor under certain circumstances and conditions to demand the handing over, or to proceed himself to the destruction, of contraband carried by a neutral prize which he was compelled to abandon. According to Article 48, as a matter of principle, captured neutral vessels might not be destroyed, but had to be taken into a port of a Prize Court. However, Article 49 permitted, as an exception, the destruction of a captured neutral vessel which would have been liable to condemnation, if the taking of the vessel into a port of a Prize Court would have involved danger to the safety of the capturing cruiser, or to the success of the operations in which she was at the time of capture engaged. According to these provisions, a neutral prize might no longer be destroyed because the captor could not spare a prize 1 Reported in Hurst and Bray, i. pp. 21, 54, 357, 145, 188, 226, 96, 166, 276. crew,1 or because a port of a Prize Court was too far distant, or the like. The only justification for destruction was to be danger to the captor or to his operations at the time of capture. As regards the degree of danger required, Article 49 did not provide any clue. But considering that Article 51 spoke of an 'exceptional necessity,' it was to be hoped and expected that Prize Courts would give such an interpretation to Article 49 as would permit the sinking of neutral prizes in cases of absolute necessity only. Be that as it may, according to Article 49, only such neutral prizes might be sunk as would be liable to confiscation if brought before a Prize Court. Sinking of captured neutral vessels-apart from those which had acquired enemy character and might for this reason be sunk under the same conditions as enemy vessels-was, therefore, chiefly admitted under the exceptional circumstances mentioned in Article 49 in three 2 cases, namely: (1) when see Article 40-the vessel carried contraband the value of which formed more than half the value of the cargo; (2) when a vessel had been captured for rendering those kinds of unneutral service which were enumerated by Article 45; (3) when-see Article 21-a vessel had been captured for breach of blockade. In no case in which she was not liable to confiscation might a neutral vessel under any circumstances or conditions be destroyed; she had always to be abandoned if the capturing cruiser could not take her into a port of a Prize Court. However, the compromise proposed by the Declaration of London has not been ratified, and is not therefore legally binding. When a captor destroys a neutral prize, he must place in safety all persons found on the captured vessel, and he must take on board all the captured ship's papers which are relevant for the purpose of deciding the validity of the capture.3 1 Schramm, p. 513, asserts the contrary, and quotes Wehberg in his support. 2 As to cases in which a neutral vessel carried defective, spoiled, defaced, double, or false papers, see above, §§ 426-428. 3 See Article 50 of the unratified Declaration of London. Moreover, according to Article 51 of the unratified Declaration of London, if the captor failed to establish before the Prize Court that he destroyed the prize in the face of an exceptional necessity, the owners of the vessel and cargo had to receive full compensation without any examination of, and any regard to, the question whether the capture itself was justifiable. Compensation had likewise to be paid in case the capture was held by the Prize Court to be invalid, although the act of destruction was held to be justifiable (Article 52). In any case, the owners of neutral goods 1 not liable to condemnation which had been destroyed with the vessel, might always, and under all circumstances and conditions, claim damages (Article 53). 1 Thus many safeguards would have been established against arbitrariness in the destruction of neutral prizes. On the other hand, it seemed to be going too far to insist on the captor letting the prize go with her contraband on board, if he was compelled to abandon her. For this reason Article 54 empowered the captor of a neutral vessel herself not liable to confiscation to demand the handing over, or to proceed himself to the destruction,2 of any goods liable to confiscation found on board, if the taking of the vessel into a port of a Prize Court would have involved danger to the captor, or to the success of the operations in which he was at the time of capture engaged. However, the rules of the Declaration of London remain unratified, and, during the World War, the practice of the Central Powers was very different.3 § 431a. There is no case on record in which, during Destructhe World War, the Allied and Associated Powers tion of destroyed intentionally a single neutral ship. The Prizes Neutral during the World * Details concerning such destruc- War. tion have been given above in § 406a (2). All rules concerning destruction of neutral prizes by belligerent cruisers apply also to destruction by belligerent military aircraft. Ransom Central Powers, on the other hand, are believed to have sunk no less than 1716.1 In a few cases-such as those of the American vessels Gulflight, torpedoed on May 7, 1915, and Nebraskan, torpedoed on May 25, 1915-Germany admitted or claimed that a mistake had been made,2 and in a few others such as those of The Draupner, Saga, and Asta-the German Prize Court of Appeal, reversing the lower court, declared the destruction of the vessels to have been illegal and compensated the owners. But in most cases the destruction of neutral vessels at sight without visit and search, no provision, or no adequate provision, being made for the safety of passengers and crew, was upheld by the Central Powers, mainly on the ground (which their submarines did not stop to verify) that they were carrying contraband, and that to have brought them to a port of a Prize Court would have involved danger to the captor. Among the best known cases are those of the American neutral vessel William P. Frye, sunk by the German cruiser Prinz Eitel Friedrich, and the Dutch vessels Maria and Medea, the sinking of which was upheld by the German Prize Courts. But the torpedoing of neutral vessels at sight became a regular feature of German submarine warfare, and no neutral maritime State was exempt. Over 2000 sailors are said to have been drowned.5 3 § 432. Regarding ransom of captured neutral vessels, the same is valid as regards ransom of captured enemy capture of Neutral vessels.6 Prizes. As regards recapture of neutral prizes," the rule ought to be that ipso facto by recapture the vessel 1 Garner, ii. § 491. * Garner, ii. § 484. See Garner, ii. § 485. • Ibid., §§ 486-487. 5 Details in Garner, ii. § 491. 6 See above, § 195. 'See Hautefeuille, iii. pp. 369407; Gessner, pp. 344-356; Kleen, ii. § 217; Geffcken in Holtzendorff, iv. pp. 778-780; Calvo, v. §§ 32103216. |