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out differs greatly in various ports. It has also to
be considered whether the vessel has a long or

^ Van Karnebeek and Nelidovv made a difference in 1907
between the immediate leaving of the port and permission
to remain during a sufficient respite. To my mind their
distinction is legally immaterial. (See Prot.)

* For instance, if their port of destination is an enemy's
that is blockaded: Prot. 1., p. 252.

* Prot. I., p. 252.

* Prot. III., pp. 827 ei se^.



56 CAPTURE IN WAR.

short voyage before her, and, therefore, whether she
must lay in a special store of victuals or not.

From the word " desirable," as also the wording
of Art. 2, " ships which were not allowed to clear,"
it follows that the signatories of the Conference
did not admit the asking of a respite to be a right.
" However equitable," says the report of the French-
man Fromageot, " the principle of this measure
may appear, one could nevertheless, neither fail to
note the practical difficulty of framing a universally
obligatory regulation, nor how the maintenance
of an obligation might eventually conflict with the
legitimate interests of the belligerents." ^ Germany
and Russia in particular advocated that the granting
of a respite should be made obligatory ; France,
England, Japan, and Argentina were against it.
Renault contended,^ inter alia, that many merchant-
ships might be turned into ships of war, and
that one could not expect a belligerent Power to
allow these to continue their voyage. Thereupon
the Dutch delegates proposed that such vessels as
could readily be transformed into fighting ships
should be excluded from the Convention. But
even subject to this condition they would not
acknowledge an obligation, and ended in agreeing
to the Swedish proposal to declare a respite
"desirable." Nevertheless, that a notable advance
in the ordering of the question had been attained
is shown by the following decisions. Merchant

^ Prot. I., p, 251.
2 Ibid.



TIME AND PLACE OF SEIZURE. 57

vessels which, owing to superior force, have been
unable to clear within the stipulated time, or
to whom permission has not been granted so to
do, may be laid under embargo, subject only
to the obligation of restoring them after the war,
without compensation, and may be used by the
belligerents only with compensation,^ i.e. are not
subject to impounding (Art. 2 of the said Con-
vention). Up to the second Hague Conference
these ships were nominally subject to seizure. It
was, however, taken into consideration that it was
incompatible with the modern development of
commerce to admit " that shipowners, underwriters,
shippers, and those interested in all sorts of mari-
time commerce should have to go in fear of seeing
their enterprises, undertaken in the good faith of
pacific relations, founder in the brutality of an
unforeseen confiscation, in every period of more
or less political tension between States. On the
other hand, it was to be remembered that these
ships might later be used as cruisers, and it was
agreed that the confiscation of such ships should
be forbidden, but not their temporary retention.

By Art. 3 of the said agreement, traders which
cleared from their last port of sailing before war
broke out, and were caught at sea in ignorance of
hostilities, are treated in almost the same way.
Only in the case of these ships their destruction
is also permissible, provided that care is taken

' No definite agreement was arrived at in 1907 as to the
amount of the same; cp. Prot. III., p. 940.



58 CAPTURE IN WAR.

to preserve human life and the ship's papers, and
that later compensation is made. Everyone agreed
in 1907 that this decision was particularly drastic,
and Renault ^ expressed the opinion that one might
almost suppose that opponents of the right of prize
wished to draw the most extreme conclusions from
the existing circumstances in order to emphasise
the justice of their view. But in the interest of
belligerents this rule seems to be justified, even
though it might perhaps have been better, in
accordance with the Russian proposal, to authorise
the destruction only when the preservation of the
captured ship would jeopardise the safety of the
captor or the success of his operations. At any
rate, the obligation to compensate will now induce
the Powers to make use of the right of destruction
only in urgent cases. As soon as the ships have
touched a port of their native country, or a neutral
harbour, they are subject to the laws and usages of
naval warfare, i.e. to seizure. These vessels also
were, until 1907, subject to the law of prize without
any limitation.

By Art. 4, hostile goods are treated exactly like
ships.

None of these decisions by Art. 5 applies to
vessels whose structure shows that they are in-
tended to be transformed into fighting ships.

This exception was included in the Convention
at the instance of England. Very violent conten-
tions arose over it in 1907. Germany and France
1 Prot. III., p. 944.



TIME AND PLACE OF SEIZURE. 59

notably contended that the whole agreement lost
its significance through this clause, and this con-
tention is in reality not entirely wrong. For every
steamer of high speed can also be employed as an
auxiliary cruiser, and every vessel, at any rate, in
mine-laying.^ In any case precisely the most valu-
able vessels, which are often the pride of whole
communities — one has only to think of the splendid
four-screw turbine steamer, Lusitania, of the Cunard
line — are thereby exposed to the whole barbarity of
the law of prize. Holland and Austria endeavoured
in vain to bring about a compromise by which all
ships which had been granted time to clear might
not again be used by their native country for war-
like purposes.

The extent, however, to which views differ as to
whether a ship is to be regarded as an auxiliary
cruiser or not is shown by the fact that England ^
then declared that it had only five merchant ships
which were intended beforehand for fighting pur-
poses. On the other hand, the latest " Naval
Almanac " gives a total of 27 such English
auxiliaries for the end of 1908.

Under these circumstances it is, of course, not
possible that the Powers should inform each other
mutually what ships are meant to be used as
auxiliaries. For, as a matter of fact, what ships
they will use for these purposes will only appear
in the course of war and as necessity requires. In

1 Prot. III., p. 1033.

2 Prot. III., p. 951.



6o CAPTURE IN WAR.

any case, as most of the Powers then declared,
this clause must not be regarded as including all
such ships as are in any way suited for such
transformation, but only such as with reasonable
certainty will be expressly transformed, i.e., in
the first instance, those in regard to which the
hostile Power has made a compact with the com-
panies to that effect. At the same time, these
compacts are seldom known owing to their delicate
nature.

The upshot of it all is that the said Art. 5 not
only greatly limits the value of the whole agree-
ment, but will also give occasion for many
differences of opinion as to which ships it applies.

The new settlement of the question of the respite
bears, as Zorn rightly insists,^ the character of a
compromise. An obligation to grant such grace
was not recognised, but seizure was at the same
time forbidden, and the laying of an embargo
substituted. This undoubtedly means a great
advance.

It must also be remembered that Germany
rightly raised a protest against the obligation to
compensate for the destruction of sliip and
cargo." Later there will be another similar case
to mention in which a uniform obligation on
all would seriously handicap particular Powers.
A Power like England, that has bases every-
where, can easily get the ships into harbour.

1 Ibid., p. 194.

2 Prot. III., pp. 918, 934, 954, 1031.



TIME AND PLACE OF SEIZURE. 6i

Other Powers, on the contrary, are forced to
destroy in order not to injure their interests, as
Fromageot's report set forth : ^ " Attention was
called to the fact that the right of capture w^as
indispensable for certain countries, as permitting
the destruction of the captured vessel, and so
disencumbering the captor of a prize which it
would be difficult or impossible for him to carry
into a national port ; that to withhold this right of
destruction would, in fact, compel the belligerent
to leave at large any vessel which he encountered,
and that the privilege of seizure was of little
value if it was practically impossible to take the
captive into a national port, and that thus the
rule proposed would set up an inequality of
conditions as between nations.

The question whether the law of prize may be
applied during an armistice has, so far, not been
positively determined. Of the literary authorities,
Hautefeuille, Geffcken, v. Stengel, and others take
the standpoint that during the stay of fighting the
right cannot be exercised. They may cite in
support of their view particularly, the Versailles
armistice of January 28th, 1871, in which it was
laid down that the right of prize at sea might not
be exercised during the cessation. This was,
indeed, not directly put in words, but was the
upshot of a clause in Art. i, by which prizes
taken between the proclamation and conclusion of
the armistice were to be restored. Perels and

* Prot. I., p. 254.



62 CAPTURE IN WAR.

V. Mirbach/ as also the positive French decision
of 1907, express the contrary view. The second
insists that an armistice is no peace, and that,
therefore, as a rule, it cannot be tolerated that fresh
means of fighting should be carried to the
enemy. But what seems to me decisive is the
appeal to the fact that during an interruption of
the struggle, in which the most dangerous and
almost exclusively determining operations are
prohibited by mutual agreement, even so insig-
nificant a form of hostility as the seizure of
merchant ships must also be forbidden. Hence
the exercise of the right of prize during an
armistice must be regarded as tabooed, unless an
express agreement to the contrary has been
reached. Loewenthal ^ here differentiates between
the treatment of neutrals and belligerents. He
considers that an enemy's private property may
not be taken during the armistice, but that, on the
contrary, neutral property which has been brought
to the enemy to supply his military necessities may
be taken. This differentiation seems to have no
justification. How far, pray, is the enemy's property
to be of less use to the enemy than neutral ?

The right of prize can, of course, only be
exercised outside neutral waters, as is expressly
laid down in Article i of the " Agreement touching
the rights and duties of neutrals in case of naval
war." No decision as to which waters are to be

» P. 31.

2 Pp. 129, 130.



TIME AND PLACE OF SEIZURE. 63

regarded as neutral has been arrived at, so that
the old international disputes on this point still
continue.

While this latter article is only meant as " the
expression of the dominating idea of this portion
of international law," ^ Art. 2 of the Agreement
gives a special decision as to neutral coasts : " All
hostilities committed by warships of belligerents
within coastal waters of a neutral Power, including
seizure and the exercise of the right of search,
form a breach of neutrality, and are unconditionally
forbidden." In case of action in contravention of
this, Art. 3 lays down the following : "If a ship
has been captured within the coastal waters of a
neutral Power, that Power must, in so far as the
prize is still within its sovereignty, employ all the
means at its disposal to bring about the release of
the prize with her officers and crew, and to hold
captive the prize-crew placed on board her by the
captor. Should the prize be beyond the bounds of
its sovereignty, the capturing Government must
release the prize, with officers and crew, at the
demand of that Power."

It is necessary, therefore, to discriminate whether
the prize be still within neutral waters or not. In
the former case the neutral Power must release the
prize, no matter whether it be a neutral's or an
enemy's ship. The British proposal, on the basis
of which the debates at the Hague in 1907 were
principally conducted, had laid down "that the
' Prot. I., p. 297; III., p. 572.



64 CAPTURE IN WAR.

neutral Power must release the prize." ^ Yet this
decision seemed too definite, seeing that the neutral
Power has not always the means necessary to such
action. Denmark ^ and Norway ^ notably protested
that, considering the great extent of their coasts
and their limited naval forces, they could never
carry out such an obligation. Therefore, it was
decided that the neutral Power should employ only
the means at its command for the purpose of
releasing the prize.

Should the prize have already passed beyond
the sovereignty of the neutral Power, then the
latter's Government at once requests the Govern-
ment of the capturing Power to release the prize,
at the same time demanding satisfaction. It will
do so as soon as possible, in order to anticipate a
protest from the Power to which the captured
vessel belongs. The Government of the capturing
State is even so not unconditionally bound to
bring about the immediate release of the prize,
with officers and crew. True, in the first reading
of the Article it had stood " must release," and not
" employ all the means at its disposal to bring
about the release of the prize," ^ it being emphasized
that it was here a question of a claim which the
captor Power could satisfy if it were so disposed.
At the second reading, however, Admiral Siegel ^

^ Prot. I., p. 299.

2 Prot. III., pp. 573 et seg., 614.

8 Prot. III., pp. 576, 612.

* As to sec. I of that Article.

^ Prot. I., p. 299 ; III., pp. 622 et seq.



TIME AND PLACE OF SEIZURE. 65

drew attention to a contradiction between this
ruling and Art. 3, sec. 2 b, of the " Convention
relating to the establishment of an International
Prize Court." In the latter the possibility of
appealing from the National Prize Court to the
International was provided for, and also the con-
tingency of an enemy's property being at stake,
and " an enemy's ship, which has been seized in
the territorial waters of a neutral Power, should
that Power make the seizure a matter of diplomatic
complaint." There had thus been two methods
left open in the discussions on the International
Prize Court, one that the neutral Power should
take diplomatic action, and the other that if
nothing was done by that Power, the owner should
have his remedy in the International Court. But
by Art. 3, sec. 2, of the first draft of the " Agree-
ment concerning the rights and duties of neutrals
in naval warfare," the alternative of the neutral
Power's failing to interfere was not mentioned at
all. The two said articles were brought into
agreement by leaving it entirely open in Art. 3,
sec. 2, of the " Agreement " to the neutral Power
whether it should intervene or not.

Before any release, the neutral Power would of
course collect the necessary evidence as to whether
the capture took place within or without its terri-
torial waters. But what is to happen if this is a
matter of doubt .'' Renault's report ^ passes over

^ Prot., ibid.
C.W. F



66 CAPTURE IN WAR.

this point abruptly, and yet the state of things
seems to me extremely complicated where a
neutral Power wants to release a prize and the
capturing Power contends that the capture did not
take place within the neutral's territorial waters.
This seems to me to provide a ready source of
future contentions, and this contingency must
be taken into consideration in framing fresh
regulations.

It has been repeatedly contended that search
may not be carried out in seas too distant from
the theatre of v/ar. This view was also expressed by
the Secretary of State, Count Bulow, in the German
Imperial Parliament on January 19th, 1900.
V. Mirbach ^ denounces as contrary to law the
searching of the German brig Osea?ius by a Russian
gunboat on the Japanese coast in 1877 during the
Russo-Turkish War. But unqualified assent cannot
be given to this contention until this point has been
settled by the law of nations ; it must be left to the
various Powers to determine how far they may
choose to extend their right of search.^ Political
prudence will generally induce them to actcautiously
in such cases. For every Power which is at war will
take care not to incur diplomatic troubles with any
more countries. In the interest of commerce it
is to be desired that it may soon be agreed not
to extend the right of search too far from the
theatre of war, for it is not creditable to our age,

1 P. 53. So, also, Wiegner, p. 259.

2 So also V. Bar in " Marz," 1907, p. 403.



TIME AND PLACE OF SEIZURE. 67

that in 1904 the Russian Volunteer Fleet stopped
foreign ships in the Black and Red Seas.

In this connection must also be cited the rulincr
of Art. 16, sec. 3, of the " Agreement," by which
warships of the belligerents may not leave a
neutral harbour or roadstead less than twenty-four
hours after the sailing of a merchant ship bearing
the enemy's flag. This clause arose from a humane
endeavour to prevent, as far as possible, any hostile
encounter. Of course it is open to a merchant ship,
if it is so imprudent, to leave the port less than
twenty-four hours after the sailing of a warship of
the hostile Power.^

1 Prot. I., p. 314.



F 2



OBJECT OF SEIZURE.

CHAPTER VI.
OBJECT OF SEIZURE.

The signatory Powers of the Paris Manifesto all

acknowledged the axiom that the seizure of ship

and cargo may only take place where the former

as well as the latter are the enemy's. The French

practice in the sixteenth and seventeenth centuries,

the so-called hostile infection, made both alike subject

to capture even if only one was an enemy's. The

consolato del mm^e and the earlier English practice

made the proprietorship of the wares the decisive

factor, and seized an enemy's goods even when

they sailed under a neutral flag. According to a

third principle brought in by the Dutch, all goods

in an enemy's ship were seized, but none in a

neutral ship. In the treaty between France and

North America, dated February 6th, 1778, the

Dutch principle was recognised. Soon afterwards

Prussia, in the Code of 1794, advocated the principle

of the Paris Declaration on Maritime Law.

According to Art. 57 of the London Convention
on Naval Warfare, the neutral or hostile ownership
of a vessel is decided by the flag which it is entitled



OBJECT OF SEIZURE. 69

to hoist. Hitherto no agreement has been arrived
at in regard to a neutral vessel engaging in traffic
forbidden to it in time of peace and reserved for the
enemy's subjects.

As for the validity of a change of flag, it depends
upon whether the change takes place before or after
the outbreak of hostilities.

By Art. 55 of the London Convention the transfer
of an enemy's ship to a neutral flag is valid, if
effected before the outbreak of hostilities, provided
that it is not apparent that such transfer is effected
to escape the consequences attaching to the fact
of being an enemy's ship. There is a presumption
in favour of its nullity, if the deed of transfer is not
forthcoming on board, and if the ship has lost the
nationality of the belligerent less than sixty days
before the outbreak of hostilities, although counter-
proof is here admissible.

The strongest of presumptions exists in favour of
the validity of a transfer which has been effected
more than thirty days before the beginning of
hostilities, if it is unconditional and complete,
satisfies the legislation of the countries concerned,
results in the control of the ship, and if the profits
of its use do not remain in the same hands
as before the transfer. If, however, the vessel has
forfeited the nationality of the belligerent less than
sixty days before hostilities began, and the deed of
transfer is not forthcoming on board, the laying of
an embargo on the vessel cannot be a matter for
compensation for damage.



70 CAPTURE IN WAR.

On the other hand, by Art. 56, the transfer of an
enemy's vessel, effected after the outbreak of
hostilities, is void unless it is proved that such
transfer has not been effected in order to evade the
consequences of being an enemy's ship. In three
cases, however, there is the strongest of presump-
tions in favour of the nullity, (i) where the transfer
has been effected while the vessel was on her
voyage or in a blockaded port ; (2) where a right
of repurchase or reversion is reserved, and (3) where
the conditions have not been complied with on
which the right to the flag depends according to
the laws of the flag hoisted.

It was desired in London, in 1909, to add a fourth
case, namely, supposing the ship, after the transfer,
should remain in the service of the party to whom
she had hitherto belonged. This was, however, given
up, because certain ships, owing to their construc-
tion, are only suited to certain service, and this
decision would therefore have been too severe.

While this very valuable unanimity concerning
decisions as to the neutral or hostile status of the
ship was reached in London in spite of the strong
opposition of England, the question as to whether
the domicile or the nationality of the owner should
determine his status could not be settled.^
Art. 58 simply lays down that the neutral or
hostile quality of the wares found on board an

^ As to these questions, I refer above all to Liepmann,
Vol. xvii. of " Zeitschrift fiir Intern. Privat. u. Oeff. Recht,
No. 3."



OBJECT OF iSEIZURE. 71

enemy's ship is determined by the corresponding
status of the owner. Should the neutral quality of
the goods found on board an enemy's ship not be
demonstrated, it is presumed by Art. 59, that such
goods are an enemy's. By Art. 60, the hostile
quality of goods carried in any enemy's ship holds
good until their arrival at their destination, in spite
of a change of ownership having taken place in the
course of transit after the outbreak of hostilities.
If, however, before the seizure in the case of the
liquidation by the then hostile owner, a former
neutral owner exercises a legal right of demanding
restitution in regard to the goods, they resume
their neutral quality. This exception was agreed
to on grounds of equity.

The rules as to laying an embargo on hostile
merchant ships are modified by the following
exceptions : —

I. From time immemorial boats that are used
for coastal fishery have not been seized, because
it would be inhuman to deprive of their gains
fishermen who, for the most part, earn their living
with difficulty. Fromageot's ^ report very rightly
insists, " This favourable exception is made, not for
the sake of the industry, but for that of the poor
folk engaged in it." Since the sixteenth century
these vessels have invariably been excluded from
the law of prize in the so-called treves pecheresses,
the first occasion being that of the fishery treaties,

1 Prot. I., p. 269



72 CAPTURE IN WAR.

in I $21, between the Emperor Charles V. of
Germany and Francis I. of France.

This humane usage was, however, not always
observed. In 1793, the British Government had
the French fishing vessels seized. Moreover, in the
Spanish-American War nine fishing vessels were
captured by the States, yet later the highest Prize
Court released these vessels and expressly acknow-
ledged that the exemption of such from the law of
prize at sea was a unanimous axiom of all civilised
nations.^

This decision first found its definition in
International Law in Art. 3 of the " Agreement as
to certain limitations to the exercise of the right
of prize in naval warfare," which expressly exempts
the fishing-gear, rigging, ship's fittings and cargo
of these vessels from seizure. A more exact
ruling as to which ships are individually to be
included in this category was not sought for. Such
must be left to the particular case, for tonnage,
manning and method of progression vary greatly
in different countries.^ Originally it was only
intended to exempt sailing and rowing boats.
But Hagerup drew attention to the state of things
in Norway, where most of such vessels use petro-
leum, benzine or steam motors, and the Portuguese
and English representatives declared that in their
countries the coast fishermen often used steam

* Cf. Niemeyer's " Zeitschr. fiir Intern. Privat. und Oeffen-
tlich, Recht," 1902, Nos. i and 2; precisely in the same way
Prot. I., p. 269 ; III., p. 911. (Choate.)


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