In this situation, however, the master of the colliers indicates his willingness to depart immediately, and, as he is the earlier arrival of two belligerents, he is entitled to precedence in departure.

This claim that the cruiser must remain the prescribed time after his departure is in accord with regulations and practice.

ART. 16. When warships belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than 24 hours must elapse between the departure of the ship belonging to one belligerent and the ship belonging to the other. (Hague convention, Rights and duties of neutral powers

in naval war.)

The fact that the colliers can reach the fleet of X before the cruiser of Y can overtake them if allowed this 24-hour start is not a matter with which the United States has concern. If the commander of the cruiser did not wish to come under the laws regulating sojourn in neutral ports, he should not enter a neutral port.. There is no law that prevented him from cruising outside the 3-mile limit and awaiting the coming of the colliers.

SOLUTION.

In absence of treaty provision or other special regulation, the colliers of State X should be allowed to depart within 24 hours.

The cruiser of State Y should be detained 24 hours after the departure of the colliers.

SITUATION II.

PROTECTION TO NEUTRAL VESSELS.

There is war between States X and Y. The United States and Germany are neutral. A United States cruiser is convoying six United States merchant vessels and when 100 miles at sea is overtaken by two German merchant vessels having papers from a Prussian port. The German vessels are going on the same course and request the protection of the convoy, offering to give the same evidence of their neutral character as that offered by the United States merchant vessels. Shortly afterwards a cruiser of State X approaches and claims that she has the right to visit and search the German vessels forthwith, while the German masters claim the protection of the United States cruiser.

How should the captain of the United States cruiser act?

SOLUTION.

The captain of the United States cruiser should, in accord with special treaty provision and Navy Regulations afford to the German vessels "protection and convoy, so far as it is within his power."

NOTES.

Historical. The question of right of convoy became a matter of controversy in 1653, when Sweden asserted the right of its merchant vessels to exemption from search if sailing under the escort of a vessel of war. Great Britain generally opposed this contention, and in the Admiralty Manual of Prize Law of 1888 said:

No vessel is exempt from the exercise of these powers (visit and search) on the ground that she is under the convoy of a neutral public ship.

From 1653 the continental States gradually came to favor the doctrine of convoy.

The acceptance by a neutral vessel of convoy of a belligerent vessel has been regularly held by the American and British courts as equivalent to resistance to visit and search, and that such a neutral vessel is liable to the consequences. The Armed Neutrality League of 1780 and 1800 emphasized the demand of neutral commerce for protection. The resort to paper blockades and other arbitrary methods during this period and the early years of the nineteenth century prompted the negotiation of liberal treaties among the neutral States. Russia, Sweden, Denmark, and Prussia, in 1800, agreed by the terms of the league:

Que la déclaration de l'officier, commandant le vaisseau ou les vaisseaux de la Marine Royale ou Impériale, qui accompagneront le convoi d'un ou de plusieurs bâtiments marchands, que son convoi n'a à bord aucune marchandise de contrebande, doit suffire pour qu'il n'y ait lieu a aucune visite sur son bord ni à celui des bâtiments de son convoi.

The British position was uniformly against the acknowledgment of the right of convoy, though early in the nineteenth century some modifications of the previous British contentions were made. The rules of the continental States usually provide that the declaration of a convoying officer shall be accepted.

Spanish-American War, 1898.-In the SpanishAmerican War of 1898 the Spanish war decree provides:

Merchant vessels sailing under convoy, under charge of one or more ships of the navy of their nation, are absolutely exempt from the visit of the belligerents, being protected by the immunity enjoyed by the warships.

As the formation of a convoy is a measure emanating from the Government of the State to which belong the vessels protecting the convoy, as well as the vessels under convoy, it must be taken as certain that the Government in question not only will not allow fraud of any kind but has employed the strictest measures to avoid fraud being committed by any of the vessels under the convoy.

It is therefore useless for the belligerent to inquire of the chief officer of the convoy whether he guarantees the neutrality of the ships sailing under his charge, or of the cargo they carry. (U. S. Foreign Relations, 1898, p. 778.)

Japanese and Russian Regulations.

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Japanese Regulations, 1904.-Article XXXIII of the Japanese Regulations Governing Captures at Sea, 1904, is:

A neutral vessel under convoy of a war vessel of her country shall not be visited or searched if the commanding officer of the convoying war vessel presents a declaration signed by himself stating that there is on board the vessel no person, document, or goods that are contraband of war, and that all the ship's papers are perfect, and stating also the last port which the vessel left and her destination. In case of grave suspicion, however, this rule does not apply.

Russian Regulations, 1904.-Russia in 1904 republished the Prize Regulations of March 27, 1895, which provided that—

Merchant vessels sailing under military convoy of an allied or neutral power are not subjected to examination, provided the commander of the convoy furnishes a certificate as to the number of vessels being convoyed, their nationality, and the destination of the cargoes, and also as to the fact that there is no contraband of war on the vessels. The stoppage and examination of these vessels is permitted only in the following cases: (1) When the commander of the convoy refuses to give the certificate mentioned; (2) when he declares that one or another vessel does not belong to the number of those sailing under his convoy; and (3) when it becomes evident that a vessel being convoyed is preparing to commit an act constituting a breach of neutrality. (U. S. Foreign Relations, 1904, p. 736.)

The right of convoy of merchant vessels of a neutral by warships of the same flag was generally recognized in practice at the end of the nineteenth century, though Great Britain in theory opposed.

Treaty provisions as to visit. There are several treaties to which the United States is a party which contain provisions in regard to the visit of vessels under convoy somewhat similar to or exactly identical with the following Brazilian treaty of 1828:

ART. 22. It is further agreed that the stipulations above expressed relative to the visiting and examining of vessels shall apply only to those which sail without convoy; and when said vessel shall be under convoy the verbal declaration of the commander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries,

and when they are bound to an enemy's port that they have no contraband goods on board shall be sufficient. (Treaties and Conventions, 1776-1909, vol. 1, p. 140.)

Treaties with Columbia, 1846 (art. 23), and Italy, 1871 (Art. XIX), contain the same regulation. This regulation corresponds to article 218 of the Italian Mercantile Marine Code.

The treaty with Haiti of 1864, terminated 1905, was somewhat more detailed:

ART. 25. It is expressly agreed by the high contracting parties that the stipulations before mentioned relative to the conduct to be observed on the sea by the cruisers of the belligerent party toward the ships of the neutral party shall be applicable only to ships sailing without a convoy; and when the said ships shall be convoyed, it being the intention of the parties to observe all the regards due to the protection of the flag displayed by public ships, it shall not be lawful to visit them, but the verbal declaration of the commander of the convoy that the ship he convoys belongs to the nation whose flag he carries and that they have no contraband goods on board shall be considered by the respective cruisers as fully sufficient; the two parties reciprocally engaging not to admit under the protection of their convoys ships which shall have on board contraband goods destined to an enemy. (Ibid., p. 928.)

It will be observed that the declaration which the commander of the convoy is usually called upon to make is that the vessels under his escort have no contraband on board. With the modern extension of the possibilities of unneutral service such a declaration might shield a vessel which the visiting commander could properly seize. The articles in these treaties make no mention of blockade.

Treaty provisions as to convoy.-The United States very early made provision by treaty for the use of convoy in time of war. One of the earliest of these treaty agreements was with Sweden in 1783, a provision which is still in force, and is as follows:

ART. 12. Although the vessels of the one and of the other party may navigate freely and with all safety, as is explained in the seventh article, they shall nevertheless be bound at all times, when required, to exhibit as well on the high sea as in port their passports and certificates above mentioned; and not having