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owing to their unseaworthiness or the inability of the captor to spare a prize crew, could not be sent in for adjudication.

The French government by a decree of August 25, 1914, modified by a decree of November 6, 1914, put into effect the Declaration of London (Article 49 of which allows the destruction of neutral prizes when they cannot be taken in without danger to the captor ship or to the success of the military operations in which it is engaged) with certain modifications and additions, none of which, however, related to the disposition of prizes.1 The British government put the Declaration of London into effect with substantially the same additions and modifications. Great Britain and France, therefore, bound themselves not to destroy neutral prizes except in the cases authorized by the Declaration. In no case, it is believed, did the naval commanders of either belligerent deliberately destroy a neutral merchantman during the recent war for carrying contraband or for other reason. The German prize code, promulgated on August 3, 1914, asserted the right to destroy neutral vessels for carrying contraband, for breach of blockade, or for unneutral service, if the taking of the ship into port would subject. the capturing ship to danger or impede the success of its operations, for example, if the prize was unseaworthy or unable to follow the captor, lacked a sufficient supply of coal or was near the enemy's coast, or if the captor was unable to provide a prize crew (article 113). In all such contingencies it was assumed that the taking of the prize in would interfere with the success of the naval operations of the captor or would expose his ship to danger. The right of destruction recognized by the German code was, therefore, somewhat broader than that allowed by the Declaration of London, since the latter does not admit the right of destruction for inability to spare a prize crew, or for lack of a sufficient coal supply, or because of proximity to the enemy's coasts. Nevertheless, they could all be brought by a liberal interpretation within the purview of the Declaration, because it might fairly be claimed that the existence of these circumstances in any case would either involve danger to the captor or impede his operations, were an attempt made to take the ship into a home port. Article 116 of the German prize code provides, however, that before destroying a prize the

1 Cf. 22 Rev. Gên. de Droit Int. Pub., pp. 23–35, for the text of the French decree.

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commander shall take off the papers and crew, and that full provision shall be made for the safety of all persons on board. This humane requirement, found in all the prize regulations, was, with rare exceptions, disregarded by the commanders of German submarines during the recent war, apparently with the approval of the German government.

§ 477. English Opinion as to the Legality of Neutral Prize Destruction. The destruction of British merchantmen by Russian cruisers during the Russo-Japanese war aroused considerable indignation in England, and the legality of the sinking of the Knight Commander, in particular, was vigorously contested by English publicists and Statesmen. The Marquis of Lansdowne in the House of Lords referred to the act as "a very serious breach of international law" and as an outrage against which it was necessary to protest. Mr. Balfour, speaking in the House of Commons, described it as "entirely contrary to the accepted practice of civilized nations." Similar language was used by Mr. Thomas Gibson Bowles.1

Professor Holland stood almost alone among English publicists in maintaining that the destruction of neutral prizes was not absolutely prohibited by international law under any and all circumstances. In a letter of June 29, 1905, to the London Times he declared that "a consensus gentium to this effect will hardly be alleged by those who are aware that such sinking is permitted by the most recent prize regulations of France, Russia, Japan, and the United States," although he readily admitted that the practice should by further international agreement be absolutely forbidden.2 While it is most desirable, he said, that neutral property should not be exposed to destruction without inquiry, cases might occasionally occur in which a belligerent could hardly be expected to permit the escape of such property when he was unable to send it in for adjudication. At the time, however, the great preponderance of English opinion was against the right of destruction. Law

1 Holland, Letters on War and Neutrality, p. 161; Baty, Britain and Sea Law,

p. 10, and International Law Situations, 1907, p. 82, and 1911, p. 57.

2 The text of his letter is printed in his Letters on War and Neutrality, p. 168. Professor Holland's position was strongly attacked by Thomas Gibson Bowles in several letters to the Times.

3 Neutral Duties in Maritime War, Proceedings of the British Academy, Vol. II, pp. 12-13, quoted by Moore, Digest, Vol. VII, p. 520.

rence, speaking of the sinking of the Knight Commander, declared that it was not lawful to sink a neutral prize before taking it in.1 Hall likewise maintained that neutral ships or goods cannot be destroyed until they have been condemned by a prize court. Ownership of such goods, he held, does not rest upon capture, but remains in the neutral until judgment of confiscation has been pronounced by a competent court.2 This in substance is also the view of Phillmore, Atlay,*Atherley-Jones,5 Bentwich, and most of the other English authorities.

§ 478. English Judicial Authority. English judicial authority, like that of English text writers, has likewise denied the legality of neutral prize destruction. Lord Stowell in the case of the Felicity in 1819 said: "Where it is neutral, the act of destruction cannot be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own State; to the neutral it can only be justified under any circumstances by a full restitution in value. These rules are so clear in principle and established in practice that they require neither reasoning nor precedent to illustrate or support them."" So during the Crimean war Dr. Lushington, while affirming the right and duty of a captor in certain cases to destroy enemy merchant vessels, declared that

"for wholly different reasons, which I need not enter upon, where a vessel under neutral colors is detained she has the right to be brought to adjudication, according to the regular course of proceedings in the prize court; and it is the very first duty of the captor to bring it in, if it be practicable."

Baty, commenting on these decisions, remarks that they have sometimes been represented as showing that Stowell and Lushington regarded it as permissible for a cruiser to sink any ship it liked upon condition of making restitution and paying damages and costs, but in fact, as he points out, they admitted no such

1 War and Neutrality in the Far East, p. 255. In an article entitled La Déstruction des Prises Neutres in the Rev. de Droit Int., 2d Ser., Vol. 8, p. 434 (1906), Baty maintains that the recent practice of destroying neutral prizes has been introduced without authority. The fact, he says, that no neutral prize had ever been sunk in modern wars because of the impossibility of taking it in was proof convincing.

2 Int. Law, 5th ed., p. 735.

See his edition of Wheaton, sec. 359e.

Int. Law, Vol. III, p. 432.

• Dodson's Admiralty Reports, Vol. II, p. 381. The Leucade (1855), Spink's Prize Cases, p. 221.

5 Commerce in War, p. 531.

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principle; all they were concerned with was the remedy their own court could give the owner. They were not concerned with the question of the right to destroy a neutral vessel; "in fact, they scarcely contemplated the occurrence of such an outrage; it was and had been for centuries an unheard-of thing." 1

§ 479. Views of Continental Publicists. Among continental publicists Kleen is a vigorous opponent of the right to destroy neutral prizes. The destruction of neutral property is never a "necessity of war," he says, and the captain of a cruiser who in open sea commits such an act arrogates to himself the powers of a judge, a quality which does not belong to him.2 Other continental writers who do not admit the right to destroy neutral prizes are: Bluntschli,3 Nippold, and, apparently, de Boeck," Gessner, and Bonfils.' Taylor, Woolsey, and Wheaton, 10 among American writers, likewise deny the right to destroy neutral prizes.

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§ 480. Right of Destruction Affirmed. There is, however, much authority in favor of the right to destroy in exceptional cases.11 Oppenheim remarks that the practice of States does not recognize the English rule of absolute prohibition, and he cites Geffcken, Calvo, Fiore, Martens, Dupuis, and Perels he might have added Rivier 12 and others in favor of the

1 Britain and Sea Law, p. 5. 2 Lois et Usages de la Neutralité, t. II, p. 532. • Droit International Codifié, sec. 672.

• Cited by Huberich in an article on "Destruction of Neutral Prizes" in the Illinois Law Review, for May, 1915.

De la Propriété Privée Ennemie sous Pavillon Ennemi, p. 302.

• Le Droit des Neutres sur Mer (1876), p. 348.

' Droit Int. Pub., sec. 1415. There is some uncertainty as to the opinions of de Boeck, Gessner, and Bonfils, as they do not distinguish clearly between the destruction of enemy prizes and neutral prizes. It may at least be said, however, that they do not expressly recognize the right to destroy neutral ships.

8 Int. Law, p. 573.

• Int. Law, sec. 184. "The right to destroy,” he says, "is barbarous, and ought to disappear from the law of nations," and he makes no distinction between enemy and neutral prizes.

10 Cited by Baty (Britain and Sea Law, pp. 5-6).

" Int. Law, Vol. II, p. 471, n. 2. Calvo, sec. 3019, states that as a general rule a neutral prize may not be destroyed, but that it is permissible in exceptional circumstances, as for example in case of "imperious military necessity" or force majeure resulting from pursuit of the enemy or inability to spare a prize crew. Cf. Martens, Traité de Droit Int., Vol. III, p. 298; Perels, Manuel de Droit Maritime (French trans. by Arendt), p. 334, and Dupuis, Le Droit de la Guerre Maritime d'après les Conférences de la Haye, etc., p. 368, to the same effect.

12 Principes du Droit des Gens, Vol. II, p. 350.

right to destroy in certain cases. Westlake is one of the few English writers who admits the right of destruction. A neutral, he says, cannot justly complain if his property is destroyed when, if it is brought in, it would be condemned under the law of blockade or contraband.1 Holland, as we have seen, took the same view in 1905; and Moore, commenting on Hall's opinion, remarks that the authorities hardly sustain it as a rule of unqualified or universal obligation. At the time of the controversy between the British and Russian governments over the sinking of the Knight Commander, Mr. Loomis, acting secretary of state of the United States, sent a telegram to Mr. Choate (July 9, 1904) saying that the American government considered that the sinking of the vessel was not justified by the bare fact that there was contraband on board, and on July 30 the Russian government was informed that the government of the United States "views with the gravest concern the application of similar treatment to American vessels and cargoes." But in a subsequent telegram of August 6 to Mr. Choate, Secretary Hay stated that he was "not prepared to say that in case of imperative necessity a prize may not be lawfully destroyed by a belligerent captor." 5

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§ 481. Discussion at the Second Hague Conference. In the presence of this conflicting opinion regarding the right to destroy neutral prizes, the Second Hague Conference entered upon a discussion of the subject in the hope of reaching a general agreement in respect to the conditions under which the destruction of neutral prizes should be admitted, if at all. In the proposal submitted by the British delegation the view was expressed that the destruction of neutral prizes should be prohibited 1 Int. Law, Vol. II, p. 309. • Digest of Int. Law, Vol. 7, p. 523.

a United States Foreign Relations, 1904, p. 333.

4 Ibid., p. 734.

Ibid., p. 337.

The matter had been considered by the Institute of International Law at its meeting at Turin in 1882, and the prize réglement which it adopted recognized the right to destroy prizes in certain exceptional cases. No distinction was made between neutral and enemy prizes, and apparently none was intended to be made. There was some opposition, especially by the English members, to the réglement because of the failure to recognize this distinction, and at the session of 1883 the réglement was amended, and the right to destroy was expressly limited to enemy prizes. The manual of maritime war adopted by the Institute at its Oxford meeting in 1913 recognizes the right to destroy enemy vessels, but nothing is said in regard to the right to destroy neutral prizes (cf. the Annuaire of the Institute, Vol. 26, p. 348).

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