partial as can be obtained, and the survey, appraisement, and inventory shall be sent to the court in which proceedings are to be had." 20

These provisions make no distinction between enemy and neutral vessels.

(b) The regulations of various states have permitted the destruction of enemy private vessels in time of war under certain circumstances, usually in cases of unseaworthiness, lack of prize crew, too great distance from prize court, presence of infectious disease, or immediate danger of attack from the enemy.21 Such regulations also usually enjoin that the crew of the destroyed vessel should be put in a place of safety. It may not be easy to carry out this regulation when the destroying vessel is itself in immediate danger of attack. To take the crew of a merchant vessel on board at such a time would scarcely be to put them in a safe position. Opinion seems however, to be in favor of allowing the destruction of enemy vessels under stress of circumstances. The Institute of International Law at its session in 1887 drew up rules in regard to this matter.22

20 Rev. St. § 4624 (U. S. Comp. St. 1901, p. 3130).

21 "303. In either of the following cases:

"(1) If the surveying officers report the vessel not to be in a condition to be sent in to any port for adjudication; or,

"(2) if the commander is unable to spare a prize crew to navigate the vessel to a port of adjudication."

British Manual Naval Prize Law.

22 "Sec. 50. Il sera permis au capteur de brûler ou de couler bas le navire ennemi saisi, après avoir fait passer sur le navire de guerre les personnes qui se trouvaient à bord et déchargé autant que possible la cargaison, et après que le commandant du navire capteur aura pris à sa charge les papiers de bord et les objets importants pour l'enquête judicaire et pour les réclamations des propriétaires de la cargaison en dommanges et intérêts dans les cas suivants.

"(1) Lorsqu'il n'est pas possible de tenir le navire à flot, à cause de son mauvais état, la mer étant houleuse ;

"(2) Lorsque le navire marche si mal qu'il ne peut pas suivre le navire de guerre et pourrait facilement être repris par l'ennemi; "(3) Lorsque l'approche d'une force ennemie supérieure fait craindre la reprise du navire saisi;

"(4) Lorsque le navire de guerre ne peut mettre sur le navire saisi WILS. INT.L.-20

(c) Recent regulations in regard to destruction of prize have made no distinction between enemy and neutral vessels.23 Action by Russian commanders in the Russo-Japanese War, 1904, particularly the sinking of the British steamer, Knight Commander, though in accord with Russian regulations, led

un équipage suffisant sans trop diminuer celui qui est nécessaire à sa propre sûreté ;

"(5) Lorsque le port où il serait possible de conduire le navire saisi est trop éloigné.

"Sec. 51. Il sera dressé procès-verbal de la destruction du navire saisi et des motifs qui l'ont amenée; se procès-verbal sera transmis à l'autorité supérieure militaire et au tribunal d'instruction le plus proche, lequel examinera et, au besoin, complétera les actes y relatifs et les transmettra au tribunal des prises."

9 Annuaire de l'Institut de Droit International, 228.

28 "28. If there are controlling reasons why 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 cannot be done they 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."

General Order 492, U. S. Navy Dept., June 20, 1898. "Article XCI. In the following cases, and when it is unavoidable, the captain of the man of war may destroy a captured vessel, or dispose of her according to the exigency of the occasion. But before so destroying or disposing of her he shall transship all persons on board and, as far as possible, the cargo also, and shall preserve the ship's papers and all other documents required for judicial examination: "1. When the captured vessel is in very bad condition and cannot be navigated on account of the heavy sea.

"2. When there is apprehension that the vessel may be recaptured by the enemy.

"3. When the man of war cannot man the prize without so reducing her own complement as to endanger her safety."

Japanese Regulations Governing Captures at Sea, March 7, 1904. “21. In extraordinary cases, when the preservation of a detained vessel proves impossible in consequence of its bad condition or extremely small value (sic), the danger of its recapture by the enemy. or the considerable distance or blockade of the ports, as well as of danger threatening the detaining vessel or the success of its operations, the naval commander is permitted, on his personal responsibility, to burn or sink the detained vessel after having first taken all the people off it, and as far as possible the cargo on board, and also

to vigorous protests from neutrals.24 On August 5, 1905, Russia issued supplementary instructions restricting the destruction of neutral merchant vessels.25 In case of destruction of a neutral vessel before condemnation, it was uniformly held that the captor was liable, not merely for costs, but also for damages.26 The general tendency among neutrals to close their ports to belligerents with prize makes the problem of disposition of prize after capture much more difficult. Opinion upon destruction was so divided that the Hague Conference of 1907 was not able to reach a conclusion upon the matter.

The subject of destruction of neutral vessels prior to condemnation was made one of the subjects for the International Naval Conference of 1908-09. The ten naval powers represented at this conference were divided in opinion-some favoring great freedom in destruction; others favoring absolute prohibition of destruction before condemnation. All at length favored the enunciation of the general rule prohibiting destruction which appears as article 48 of the Declaration of London, February 26, 1909:

"A captured neutral vessel is not to be destroyed by the captor, but must be taken into such port as is proper, in order to

after having taken measures for preserving the documents and other objects on board, and which might prove essential in elucidating matters when the case is examined according to the method prescribed for prize cases." Russian Prize Regulations, March 25, 1895.

24 British Parliamentary Papers, Russia, No. 1 (1905); Foreign Relations U. S. 1904, p. 734.

25 "Russian vessels were not to sink neutral merchantmen with contraband on board in the future, except in case of direct necessity, but in case of emergency to send prizes into neutral ports."

Cases of destruction have received much attention. See Lawrence, War and Neutrality in the Far East, p. 250; Smith & Sibley, Int. Law during Russo-Japanese War, pp. 186, 465; Hershey, Int. Law and Diplomacy during Russo-Japanese War, pp. 136, 142, 156; Takahashi, Int. Law during Russo-Japanese War, p. 310.

26 "The general rule, therefore, is that if a ship under neutral colors be not brought to a competent court for adjudication the claimants are, as against the captor, entitled to costs and damages. Indeed, if the captor doubt his power to bring a neutral vessel to adjudication, it is his duty to release her." The Leucade, Spinks, 217. See, also, The Acteon, 2 Dod. 48; The Felicity, 2 Dod. 381.

determine there the rights as regards the validity of the capture." 27

(d) It was, however, found that in practice exceptions were made to the general prohibition of prize destruction. It was admitted that when a neutral vessel, which would certainly be condemned, involved "danger to the ship of war or to the success of the operations in which she was at the time engaged," the neutral vessel might be destroyed. The provision of the Declaration of London was as follows:

"Article 49. As an exception, a neutral vessel which has been captured by a belligerent ship, and which would be liable to condemnation, may be destroyed if the observance of article 48 would involve danger to the safety of the ship of war or to the success of the operations in which she is at the time engaged."

The crew and persons on board and the ship's papers must be placed in safety. The destruction of neutral prizes is more fully discussed under section 185, page 412.

(e) Article 54 of the Declaration of London provides that: "The captor has the right to require the giving up, or to proceed to destroy, goods liable to condemnation found on board a vessel which herself is not liable to condemnation, provided that the circumstances are such as, according to article 49, justify the destruction of a vessel liable to condemnation. The captor enters the goods delivered or destroyed in the log book of the vessel stopped, and must procure from the master duly certified copies of all relevant papers. When the giving up or destruction has been completed, and the formalities fulfilled, the master must be allowed to continue his voyage."

The captor is liable to damages if he has not full justification for his action, as under the provisions for destruction of vessels.28

27 Declaration of London, February 26, 1909, art. 48, Appendix, p. 581. See, also, British Parliamentary Papers, Miscellaneous No. 4 and No. 5 (1909).

28 Id. c. IV, p. 582.

PRIZE MONEY AND BOUNTY.

132. (a) The proceeds of prize capture after condemnation are sometimes distributed among the captors.

(b) The distribution may be according to statutory regulation, or in absence of such regulation according to precedent or general principles.

(c) Bounty is sometimes allowed when vessels are sunk or destroyed before adjudication.

(a) The policy in regard to distribution of the proceeds of prize capture among those participating in the capture has varied, but since the seventeenth century has been generally allowed and regarded as a stimulus for those engaged in war.29 It is still allowed by most states, 30 but was abolished in the United States after the Spanish-American War.81 By those who regard the object of naval war as the destruction of the enemy's naval strength, the diversion of attention to capture for the sake of prize money is considered contrary to good military policy.

(b) The distribution of prize money is usually determined by municipal regulation, and as a general principle, in absence of regulations, vessels participate in the proceeds of prize in proportion to their participation in the capture. Those vessels within "signal distance," in condition "to render effective aid. if required," are usually entitled to share. The question as to what constitutes "signal distance" has always given rise to difficulties, which may be multiplied by the introduction of radio-telegraph. How far different vessels and land forces, and in what proportion different grades of officers and mem

29 4 Dods. p. 316, note.

30 Determined in Great Britain according to Royal Proclamation, August 3, 1886.

31 "All provisions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed." Act March 3, 1899, 30 Stat. 1007 (U. S. Comp. St. 1901, p. 1072).

82 The Mangrove, 188 U. S. 720, 23 Sup. Ct. 343, 47 L. Ed. 664.