SITUATION III.

DESTRUCTION OF NEUTRAL VESSEL.

(It is granted in this situation that the Declaration of London is binding.)

There is war between the United States and State X. Great Britain is neutral. The United States fleet is sailing to make an attack upon a fortified port of State X. The fleet comes upon a British merchant vessel bound for a port of State X and equipped with wireless telegraph apparatus and having certain articles of contraband on board. The commander of the fleet does not wish to send the British vessel to a prize court, as such a court is at a great distance. He decided to destroy the vessel and to put the crew on board a collier which accompanies the fleet. The British master protests that this is in violation of his rights.

What are the rights in this case and what should be done?

SOLUTION.

The protest of the British master against the destruction of his vessel is correct.

The commander of the United States fleet may, if military necessity or treaty provision justifies, take or destroy the contraband on board the merchant vessel, and he may take measures to assure himself that the wireless apparatus will not be put to unneutral use.

NOTES.

Introduction. This Naval War College has from time to time considered the question of destruction of private vessels in time of war. Prior to the adoption of any general international conventions relating to the treatment of vessels at sea in time of war the conclusions of the Naval War College have necessarily conformed as far as possible to the liberal policy of the past history of the United States. If conventions of recent years grant less exemption to merchant vessels than has been granted by earlier United States practice, if there be no

treaties or orders to the contrary, a naval officer will be under obligation to act in accord with the general conventions to which the United States may be a party. The drift of opinion and practice and the character of proposed conventional agreements show considerable change since the matter of destruction was quite fully discussed at this Naval War College in 1905.

Naval War College discussion in 1905.-Topic IV, proposed for discussion in 1905, was as follows:

Should the destruction of captured vessels be allowed before adjudication by a prize court? If so, under what condition? The conclusion reached was:

Enemy vessels.-If there are controlling reasons why enemy vessels may not be sent in for adjudication, as unseaworthiness, the existence of infectious disease, or the lack of a prize crew, they may be appraised and sold, and if this can not be done may be destroyed. The imminent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. But in all such cases all the papers and other testimony should be sent to the prize court in order that a decree may be duly entered.

Neutral vessels.-If a seized neutral vessel can not, for any reason, be brought into port for adjudication, it should be dismissed. (International Law Topics and Discussions, Naval War College, 1905, p. 62.)

In the discussion of 1905 it was said:

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The destruction of a neutral ship must be clearly distinguished from the destruction of a belligerent ship even under the principles at present generally accepted. If the belligerent's vessel is good prize it may be lost to that belligerent from the time when his opponent captures it. This is not always necessarily the case, because it may be recaptured or a court for some reason may not condemn the vessel. 'Quarter-deck courts" should be avoided, except in extreme instances, even in deciding on the destruction of enemy vessels. Such vessels may have neutral cargo, which may be in no way involved in the hostilities. The principle of the Declaration of Paris that "neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag," may be involved in such manner as to make great caution necessary in destroying vessels of the enemy before adjudication.

Much greater care should be taken before destroying a neutral vessel itself. (Ibid., p. 72.)

Naval War College Discussions.

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Many arguments may be urged against the destruction of neutral vessels. Before destruction in any case, the crew, passengers, and papers must be taken from the neutral vessel on board the belligerent ship. These are then immediately subject to all the dangers of war to which a war vessel of a belligerent is subject. Such a position may be an undue hardship for those who have not been engaged in the war and one to which they should not be exposed.

A belligerent vessel, with crew, passengers, and papers of the destroyed neutral vessel, may enter a neutral port to which entrance with the vessel itself would be forbidden. This is in effect almost an evasion of the general prohibition in regard to the entrance of prize, because on board the belligerent vessel is the evidence upon which the decision of the prize court of the belligerent will be rendered. It is certain that a neutral State would be very reluctant to admit within its territory a belligerent vessel having on board the crew and papers of one of its own private vessels which the belligerent had destroyed. The belligerent vessel might thus obtain the supplies from the neutral which would enable it to carry to its prize court the evidence in regard to capture.

It does not seem possible in view of precedent and practice to deny the right of a belligerent to destroy his enemy's vessel in case of necessity. Of course, if the doctrine of exemption of private property at sea is generally adopted this right can no longer be sustained. (Ibid., p. 74.)

Discussions in 1907.-The subject of destruction of neutral merchantmen was again considered in Situation V of the International Law Situations of 1907. The situation proposed in 1907 was as follows:

War exists between the United States and State X. Neutral merchant vessels bound for a fortified port of State X and loaded for the most part with contraband are overtaken on the high seas by vessels of the United States Navy.

Some of these neutral merchant vessels are unseaworthy; some are overtaken at points too far from a prize court to make it advantageous to send the vessels in; others can not be cared for without impeding the action of the United States naval forces, which are in danger of immediate attack; and in other cases prize crews can not be spared to take the captured neutral merchantmen to a prize court.

What action may be taken by commanders of vessels of the United States Navy in such cases?

The solution offered was:

(a) If the contraband cargo and the seized neutral vessel have different owners, the contraband cargo, after proper survey,

appraisal, and inventory, and with consent of the master, if in accordance with treaty provisions, may be taken, and the vessel, if guilty only of the carriage of contraband, should be dismissed, and the papers relating to the whole transaction should be forwarded to the prize court.

(b) If the master does not consent, the vessel and cargo are liable to the usual penalties for contraband trade.

(c) If the neutral vessel and contraband cargo belong to the same owner, the contraband cargo may be treated as in (a). The vessel, however, should, if possible, be sent to a prize court for adjudication, otherwise the vessel should be dismissed.

(d) Destruction on account of military necessity of a neutral vessel guilty only of the carriage of contraband entities the owner to fullest compensation. Before destruction all persons and papers should be placed in safety. (International Law Situations, Naval War College, 1907, p. 74.)

The case of Knight Commander.-The discussion which followed the sinking of the British steamer Knight Commander by a Russian cruiser during the RussoJapanese War in 1904 showed that many States had hardly conceived it as possible that a neutral merchant vessel carrying contraband could be destroyed before adjudication by a properly constituted prize court. The case of the Knight Commander is quite fully stated in the Situations for 1907. (Ibid., p. 84 et seq.)

Since the issue of the Situations of 1907 further details of the opinion of the Russian supreme court have been published, not merely as justifying the condemnation as prize, but particularly bearing on the destruction of the Knight Commander:

First of all must be remarked that the question as to the regularity of the sinking of the vessel did not pertain to the examination of the prize court, in absolute conformity with article 58 of the Naval Prize Regulations, but in accordance with the real sense of article 21 of the Naval Prize Regulations, and article 299 of the Naval Military Criminal Statutes, it may pertain to the examination of the naval authorities and the criminal court, inasmuch as the sinking of a vessel is allowed under the personal responsibility of the naval authorities, therefore, to judge whether in the present case the naval authorities sufficiently examined the extraordinary circumstances, which decided them to sink the vessel or whether these circumstances were insufficient can only be judged by the commanding authority who ordered the sinking of the vessel and not the prize court.

Knight Commander Case.

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Besides this, in conformity with the same article 21 of the Naval Prize Regulations and clause 40 of the instructions relative to the manner in which the capture of vessels is to be effected based on article 26 of the prize regulations confirmed by the council of the admiralty, the fear that the vessel may fall into the hands of the enemy and the distance of a home port to which such vessels may be brought are conditions which justify the sinking of a vessel. The presence of these conditions in the sinking Knight Commander were duly established by an act on July 11, 1904; the question raised in the appeals that the sinking of neutral vessels is illegal is rejected in conformity with articles 11 and 21, which together clearly explain the irregularity of this point; in conformity with article 11 trading vessels of neutral nationality may be subject to capture; in accordance with the same article 21 all captured vessels may be sunk in extraordinary cases; thus, according to Russian law in force, the Russian prize court alone can properly decide this question, and the objections raised in the appeal are negative.

We can not, however, agree with the declaration made by the shipowners' attorney that the Russian law, in allowing "neutral vessels "to be sunk, is contrary to the principles of international law, if even in a double sense a "neutral vessel" is such as is neutral only through its nationality, although nowise neutral in its acts. In support of his position, the attorney cites a whole lot of passages from authors who declare themselves against the legality destroying vessels of neutral nationality. But the views taken by authors or learned men, although very authoritative, do not make it an obligatory rule of international law. It is well to adhere to such opinions, but one is not obliged to accept their execution.

Not citing the opposite view, it is not found unnecessary to draw attention to an article by Prof. Holland (Revue de droit international, 1905, no. 3) which exxpresses a doubt whether the sinking of a vessel of neutral nationality should be considered a violation of the principles of international law, especially in view of the circumstances that not only Russian law, but also the laws of France, the United States, and Japan admit the sinking of neutral prizes.

But not stopping within the limits of various authorities it is necessary to examine the questions from the very root. All agree that the principle of international law relative to maritime prizes should be based upon established compromises between the interests of the belligerents on the one side and neutrals on the second part-compromises which should guarantee the rights of all. From this point of view the destruction of a captured vessel of neutral nationality should not be admitted excepting in case of absolute necessity to the interests of the hostile parties. These