that "the usual mode, adopted by most of the Maritime Powers of Europe, of summoning a neutral to undergo Visitation, is the firing of a cannon on the part of the belligerent. This is called by the French semonce, coup d'assurance, and by the English affirming gun. It is undoubtedly the duty of the neutral to obey such a summons, but there is no positive obligation on the belligerent to fire such an affirming gun; for its use is by no means universal. Moreover any other method, as hailing by signals, &c. of summoning a neutral to submit to an examination, may be equally as effective and binding as the affirming gun, if the summons is actually communicated to and understood by the neutral. The means used are not essential, but the fact of a summons actually communicated is necessary to acquit the visiting vessel of all damages, which may result to the neutral disobeying it." On the other hand, Sir Robert Sir R. Phillimore seems to consider that the received mode of summoning the neutral to undergo Visitation is by the firing of a cannon shot on the part of the belligerent, and that it is the distance at which this shot shall be fired, which has been the subject of particular conventions. M. Heffter 5 observes that the exercise of the Right of Visitation has been more especially regulated by the Treaty of the Pyrenees, of which the dispositions in this matter have become in some manner the Maritime Law of Europe. Upon a careful review of the practice of the European Powers in modern times, it would appear that no neutral merchant ship is bound to shorten sail, unless the belligerent cruiser

Phillimore.

Heffter.

85

86 Dumont, Tom. VI. Part ii. p. 264. Schmauss, Corp. Jur. Gent. 683.

p.

fires a gun to warn her of her intention to visit her. Whether the gun shall be fired before the cruiser displays her flag, or immediately after she has shown her colours, may be immaterial. The two conditions which ought to be fulfilled by the belligerent cruiser, in justice to the master of the neutral merchant vessel, before the latter can be held to act in contravention of any belligerent right, are that the true character of the cruiser herself shall be made known to him by the exhibition of her military flag, and that her intention to visit the merchant vessel in virtue of her belligerent right shall be notified to him by the firing of a gun. If the neutral ship should have sailed prior to hostilities, and her master and crew should be in perfect ignorance of the existence of war, and consequently unconscious that they have any neutral duties to perform, a mere attempt to escape on their part from an armed ship, which proves herself afterwards to be a belligerent cruiser, will not be a breach of neutral obligation 87.

of the

Pyrenees.

§ 94. By Article XVII of the Treaty of the Pyrenees Treaty (7 Nov. 1659), which is considered to embody the common Law of Nations on the subject, the object of the Right of Visit is explained to be the inspection of the ship's Pass or Sea Letter, whereby the nature of her cargo, and likewise the domicil and residence and names of her master and her owner, as well as of the vessel herself, may be ascertained. The practice Ship's of Nations in regard to a ship's Pass has undergone some modification. Where treaties exist in regard to the exhibition of a Pass or Sea Letter, such ships only as are furnished with the specified Pass or Sea Letter are entitled to the treaty-privileges, whatever they may be. In other cases the Pass is not in the present day an indispensable document, if 87 San Juan Baptista, 5 Ch. Rob. p. 35.

papers.

there are other papers on board, which satisfactorily establish the character, property, and destination of the ship and cargo. Amongst them the most imBuilder's portant is the Builder's Contract, or the Bill of Sale Bill of Sale, in case the ship has ever changed owners; and in

contract or

Cargopapers.

Charterparty.

Right of

addition the Certificate of Registry, if the municipal law of the port, from which the ship hails, requires that she should be registered. If these two papers are on board and their bona fides is not impeached, the proof of the property as regards the ship will be sufficiently complete, so far as documentary evidence is concerned. With regard to the cargo, if the ship is a general ship, her Manifest and the Bills of Lading are the best evidence of both the ownership and the destination of the cargo. If on the other hand the vessel should be chartered, the Charter-Party should also be on board; but the absence of the CharterParty will not justify the condemnation of the ship, any more than the absence of the Invoice of the goods; but the non-production of any Ship's paper, which is in strict law documentary evidence in regard either to the ship herself or to the cargo, will justify the sending the vessel into port for enquiry, in order that the master may account satisfactorily before a Court of Prize for the absence of the missing document.

§ 95. The Right of Detention for enquiry is a Detention. corollary to the Right of Visitation and Search. If the commander of a belligerent ship of war, having examined the papers found on board a merchant

88 D'Abreu specifies nine papers which should be on board a ship in order that her papers should be regular. 1. Le Passport. 2. Les Lettres de Mer. 3. Le Journal. 4. Le Certificat de Santé. 5. L'Appartenance ou Propriété de Navire. 6. L'Inven

taire des Marchandises. 7. La Charte-partie. 8. Les Connoissemens. 9. La Facture. He does not include La Rôle d'Equipage amongst the requisite papers, which Klüber however enumerates. Cf. Klüber, Droit des Gens, § 294.

vessel, shall perceive just and sufficient reasons for detaining her in order to proceed to a further examination, he may order a prize crew to go on board of her and conduct her to the nearest and most convenient port belonging to his Nation, subject to a full responsibility in costs and damages, if this should have been done without just and sufficient cause in the opinion of a duly constituted Court of Prize. "It is a rule of law," says Lord Stowell, "that the neutral vessel shall submit to the enquiry proposed, looking with confidence to those tribunals, whose noblest office (and I hope not the least acceptable) is to relieve by compensation inconveniences of this kind, if they have happened through accident or error, and to redress by compensation and punishment injuries that have been committed by design 9.

89 12

sail under

96. Every belligerent Cruiser has a right to insist on verifying the neutral character of every ship which it meets with on the High Seas, and which carries a neutral flag; and it is a clear maxim of law, that "a neutral vessel is bound in relation to her commerce to submit to the belligerent Right of Search." A neutral merchant accordingly cannot Neutral adopt any measures, of which the direct object is to may not withdraw his commerce on the High Seas from the convoy. free exercise of the Right of Search on the part of any belligerent cruiser. It is not competent therefore for a neutral merchant to exempt his vessel from the belligerent Right of Search by placing it under the Convoy of a neutral or enemy man-of-war. "The very fact of sailing under the protection of a belligerent or neutral convoy," says Mr. Chancellor Kent, Chancellor "is a violation of neutrality." Mr. Wheaton to a

89 The Maria, I Ch. Rob. 374. 90 Mr. Justice Story in the Nereide, 9 Cranch, p. 438.

91 Commentaries, Tom. I. p. 154.

Kent.

similar effect, in discussing the Danish captures under the ordinance of 1810, asks, "Why was it that navigating under the convoy of a neutral ship of war was deemed a conclusive cause of condemnation ? Wheaton. It was because it tended to impede and defeat the belligerent Right of Search; to render every attempt to exercise this lawful Right a contest of violence ; to disturb the peace of the world, and to withdraw from the proper Forum the determination of such controversies by forcibly preventing the exercise of its jurisdiction 92" Actual resistance on the part of the convoying man-of-war is not necessary to establish the unneutral character of the act of a merchant vessel sailing under its protection. Lord Stowell in commenting on the suggestion that the intention to resist the Right of Search was never carried into effect by a neutral vessel which had sailed under convoy of a man-of-war, observes that "the intention is unchangeable, and being so, I do not see the person who could fairly contradict me, if I were to assert that the delivery and acceptance of such instructions and the sailing under them were sufficient to complete the act of hostility 93"

$97. It is not by the Common Law of Nations a ground for confiscating the goods of a neutral merchant, that they have been shipped on board an enemy merchant vessel, even if the master of the enemy vessel should resist the exercise of the Right of Search on the part of a belligerent cruiser. The forcible resistance of the master of an enemy merchant vessel is nothing more than the hostile act of a person who is entitled to commit acts of hostility; and there is nothing per se unneutral in the conduct of the merchant who has embarked his goods on board of an unarmed vessel, 93 The Maria, 1 Ch. Rob. p. 376.

92 Elements of International Law, Part IV. c. 3. p. 597.