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or enemy; and if, in consequence of such stratagem, the crew of the detained vessel abandon their duty without being made prisoners of war, and the ves- . sel is thereby lost, the captors are not liable.
The right of visitation and search has been con- Treaty prostantly recognized by treaties between maritime nations, and stipulations are introduced specifying the manner in which the right shall be exercised. It is usually provided that the searching vessel shall remain not nearer than cannon-shot distance from the ship visited, and shall send a boat with not more than two sitters, beside the rowers, which
, two persons shall inspect the ship's papers, of which the form is usually fixed by the treaty. If these papers are found regular, and affording no reason for detention, the ship is to be allowed to proceed. If, however, there are circumstances which are regarded as suspicious, it is provided that the ship may be brought in further inquiry, subject to a claim for costs, expenses, and damages, if the detention shall have been capricious or unreasonable. Treaties, embracing substantially these provisions, were made between France and the United States in 1778; between the United States and the StatesGeneral in 1782 ; between the United States and Sweden in 1783.
In the exercise of the right of visitation and Ships' papers search upon a neutral vessel, the first object of in- promene to be quiry is, generally, the ship's papers. These are:
1. The passport, being the letter of license from the neutral power to proceed on the voyage. This
The Eleanor, 2 Wheat., 345; The George, 1 Mason, 24.
pass, to be regular, must be specific and not general, and describe explicitly the true parties.
2. The sea-letter or brief, specifying the nature and quantity of cargo, the place of lading, and place of destination.
3. The documentary proof of property.
4. The muster-roll of the ship's company, which should set forth not only the names, but ages, condition, place of residence, and birth of each. 5. The charter party,
may serve to authenticate the facts connected with the proof of neutrality.
6. The bills of lading, showing the nature of the obligation between the master or owner and shipper.
7. The invoices or manifest, showing the particulars of the cargo, by whom shipped, and to whom consigned.
8. The log-book, being the journal of the ship’s voyage, and of each day's progress and occurrences.
9. The bill of health, being a certificate that no contagious disease prevailed at the place of departure of the ship, and that none of the crew were infected with such distemper; and
10. The letter of instructions to the master, with which, especially in times of war, a neutral master should always be provided. These instructions should always be produced. The withholding them has been held a just cause of suspicion, authorizing detention. These letters of instruction, or the other papers, should always show the alternative destination of a ship, so as to establish the fact that
· The Hoop, 1 Rob., 129; The Elizabeth, 5 Rob., 4. • The Concordia, 1 Rob., 120.
auch alternate destination be fair and not fraudulent.1
All the papers should be produced. If any are kept back, it furnishes just ground of suspicion, and authorizes detention."
The production of false papers has always been held a just cause of suspicion, justifying seizure, although under some peculiar circumstances it has been held not to be such conclusive proof as warrants condemnation, if the circumstances are clearly explained.
The spoliation of papers has been considered a circumstance of a much more aggravated nature, which may exclude proof, and be sufficient of itself to establish guilt. But in the courts, both of Eng. land and the United States, the spoliation of papers has not been regarded, as in other maritime countries, as sufficient to create an absolute presumption, juris et de jure, and they have allowed proof that such spoliation was the result of accident, of necessity or of superior force. But such explanatory proof, to repel the presumption, must be prompt and frank, without prevarication or any evidence of bad faith.*
The question whether the right of search could The right of be exercised by belligerents upon neutrals sailing chant vessels under convoy, underwent much discussion about a sailing under century since. In 1762 it was contended by the
search of mer
1 The Juffrau Anna, 1 Rob., 120; The Eenrom, 1 Rob., 6; The Odin, 1 Rob., 122; The Vigilantia, 1 Rob., 1.
• The Calypso, 2 Rob., 158.
* The Two Brothers, 1 Rob., 133; vide Bernardi vs. Motteaux, Doug., 581; The Adriano, 1 Rob., 317.
Dutch government, that merchant vessels sailing under convoy were exempted from search. After much altercation it resulted in a treaty stipulation, recognizing the exemption. Such treaty stipulations have been entered into from time to time between several maritime nations ;-between Sweden and the United States in 1783, between the United States and Prussia in 1785, between the United States and Morocco in 1787, and between the United States and France in 1800. Indeed, at the close of the last century, the doctrine of exemption of merchant vessels sailing under convoy, was recog. nized by all the principal maritime nations, with the exception of Spain and Great Britain.
In 1787 an attempt was made by a Swedish claimant to enforce the exemption in the British courts of admiralty, in a case in which a capture was made of a fleet of Swedish merchantmen, sailing under convoy, by a British squadron in the Eng. lish channel, under command of Commodore Lawford, for a resistance to search. This was the case, before alluded to, in which Lord Stowell, so elaborately and with such masterly ability and learn. ing, discusses the entire doctrine of the belligerent right of search. Upon this point he says, as a conclusion: “ With regard to the question of convoy, the authority of a sovereign of a neutral country, being interposed in any manner of mere force, cannot legally vary the right of a lawfully commissioned belligerent cruiser. Two sovereigns may unquestionably agree, as they have agreed, in some late instances, that the presence of one of their armed ships along with merchant ships, shall be mutually understood to imply that nothing is to be
found in that convoy of merchant ships, inconsist-
, any more than with any other
In the spring of 1800, a collision on the same subject, took place between Great Britain and Denmark." A Danish frigate convoying merchantmen · resisted the search of a British frigate near Gibraltar, and the Danes having fired upon the boats sent to effect the search, reparation was demanded of the Danish government by the British minister at Copenhagen. A long and interesting diplomatic correspondence resulted between the two governments, pending which, or directly upon its expiration, another cause of complaint occurred between the same governments upon the same subject, by a resistance to search by Danish merchantmen under convoy, which resulted in a short engagement, and a surrender of the Dane to the British squadron as prize of war, Negotiations again ensued between the two governments. Terms of settlement of the immediate occasion of the difficulties were agreed upon, without any stipulation upon the question of the belligerent right of search of merchant vessels
The Maria, 1 Rob., 340, 378.