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act in accordance with the instructions of their
Governments, and in the spirit of this Conven-
tion. Further, by Art. 20 the signatory Powers
are to take the requisite measures to make known
the decisions of this Convention to their naval
forces, and particularly to the protected crews,
and to promulgate them among the people.

As a matter of fact, the decision as to neutral
hospital ships does not properly belong to the
subject in question. Neutral ships are normally
not subject to seizure, and we are here speaking
only of exceptions, in virtue of which an enemy's
merchant ships are exempt from such seizure.
But, for the purpose of a connected exposition
of the law of hospital ships, it was necessary
to consider neutrals also. Articles of the
" Convention touching the application of the
principles of the Geneva Convention to naval
warfare " which are not pertinent to the subject,



90 CAPTURE IN WAR.

particularly Art. 7, 10 et seq., have not been
adduced at all.

IV. By ancient usage vessels with a flag of truce
are immune if they carry the proper white ensign
at the maintop. As we do not possess a codification
of the laws of naval war similar to the " Laws and
Usages of War on Land," this acknowledged
axiom has not yet been formulated, as was done
with regard to parlementaires in land warfare as
long ago as 1899.

V. The proposal to exempt postal ships was
made still earlier, i.e., in 1888, by den Beer
Poortugael,^ in his work on International Maritime
Law, and in 1896 by the Institut de Droit Inter-
national. In previous wars, all sending of letters
was not stopped, as a difference was made
" according to whether or not the vessel was a
regular mail ship, or, again, according to her
place of origin or destination." ^ But there always
resulted, at any rate, a delay in delivery. Even
in the first half of the nineteenth century certain
postal treaties excluded the enemy's^ postal vessels
from the law of capture, but an international settle-
ment of the question was first arrived at in Arts.
I and 2 of the agreement concerning certain
limitations in the exercise of the right of capture in



1 He pointed, in 1907, with just pride to the fact that for
thirty years he had advocated the inviolabihty of com-
munications by post.

2 Prot. I., p. 266.

^ Cf. Perels, " Marine Runchschau," 1903, p. 269.



OBJECT OF SEIZURE. 91

naval warfare." ^ Germany was the moving spirit
in this. The decision, unfortunately, does not
treat of postal ships as such, but only of the con-
veyance of letters, and not even of packets, etc.
It makes no difference whether the mails are on
board the enemy's ^ or neutral ships, or whether
they belong to neutrals or belligerents. Nor is
any distinction to be made between official and
private letters. As a matter of fact, in time of war
a Power naturally does not send important news by
way of post across the sea. In important matters
— and there alone could the seizure be of value —
it will make use of a special courier or the telegraph
wires.^ This agreement does not apply at all to
mails which are sent to or from a blockaded port.

As only letter-mails are exempted, the enemy's
mail steamers will be seized as before, and the
neutral will be subjected to search.^ The pro-
vision by Art. 2 of the said Agreement, that " this
may only be carried out in case of need with the
greatest consideration and as rapidly as possible,"
is a mere phrase. The very obligation of com-
pensation will force the captor to that ; but, above

' As a pendant to the debate on contraband. The German
proposal was discussed by the "comite de contrebande de
guerre."

^ Russia was at first for having only mails in neutral ships
exempted, Prot. III., p. 1122.

^ Prot. 1., p. 2C6. '• Telegraphy and wireless transmission
offer to belligerents far more rapid and sure means of com-
munication than the post" ; so also Kriege, Prot. III.,
p. 1 121.

^ England made the adoption of the article depend on this :
cp. Prot. III., p. 1121.



92 CAPTURE IN WAR.

all, such a method of search must be observed
elsewhere also, and not only with mail steamers.

On the whole, the progress as regards letter-post
must not be valued too highly. True, intercepted
letters can no longer be retained. But, no doubt,
postal communication will be disturbed just as
much as hitherto. The enemy's mail steamers will
not expose themselves to the risk of capture, and
neutral vessels are, anyhow, not so trustworthy.
In this decision the fear lest mail vessels
should be used for other purposes has assuredly had
its share. But would it not be possible that the
Powers should pledge themselves to use mail ships
for nothing else than the carrying of letters ?
Good faith and trust must flourish more and
more, even in the intercourse of nations, and the
advantage of such mutual confidence would be
general.

VI. By some writers like Bluntschli, de Boeck
and Gessner, a further exception is put forward.
Ships which, owing to shipwreck, are driven
on the enemy's coasts, or find themselves in
peril of the sea, may put into a hostile port. Yet
international law has not yet sanctioned such a
distinction, and practice has only recognised the
rule in isolated instances.^

In conclusion, and, strictly speaking. Govern-
ment hospital ships, State mail boats, and vessels

* According to v. Ullmann (pp. 511, 512) pilot boats and
those employed in the service of lighthouses are exempted
from seizure.



OBJECT OF SEIZURE. 93

intended for scientific and other purposes, which
are State property, are by no means in their place
in an enumeration of the exemptions from the law
of prize, as that law only extends to private
property ; they would rather be more correctly
classified in a list of exceptions from the maxim,
" War sustains war." ^ But the distinction drawn in
this essay between the handling of private and
public property was not recognised in the " Agree-
ment as to certain limitations in the exercise of
the right of capture in naval warfare," and, for
practical reasons, I have followed the dictates
of that Convention.

1 Even in land warfare there are, as already shown,
exemptions from this principle. Thus, the prevalence of
the rule is constantly circumscribed.



CHAPTER VII.

BRINGING-TO AND SEARCH.

The enemy's warships — and, for Powers which did
not join in the Paris Declaration/ privateers as well
— have to begin with the right of embargo : Le
droit de saisie. On the other hand, until the
decision of the Prize Court is given, they have no
complete right of disposal over the enemy's ship
and the enemy's goods, and, above all, cannot
destroy them, although they have come into their
possession.^ Yet there are also many cases in
which immediate destruction is permitted, even
without a legal judgment, e.g. : —

I. Where the ship resists being brought to ;

II. Where heavy weather prevails ;

III. Where the ship brought to is unseaworthy;

IV. Where the vessel that has intercepted the
cargo is pursued by the enemy, and particularly
where recapture is to be feared ;

^ Spain and Mexico joined in 1907. The United States,
Venezuela, New Granada, Bolivia, and Uruguay still hold
aloof.

2 Cf. Perels, " D. Internationale ofifentl. Seerecht der
Gegenwart," p. 299.



BRINGING-TO AND SEARCH. 95

V. Where the vessel that seizes the cargo would
be seriously hindered in the performance of her other
duties by taking the ship in tow ;

VI. Where the captor has no available men on
board to bring the captive ship into safety, and her
commander refuses to follow of his own accord ;

VII. Where contagious diseases prevail on board ;

VIII. Where the value of the intercepted vessel is
so slender that to carry her away is not worth while,
especially in a case where the ports into which she
might be taken are very far off, or are blockaded.
Thus objection can be raised to the action of the
Alabama in the War of Secession, which, out of
sixty-three ships taken, burned fifty-two and sunk
one, because the ports of the Southern States were
blockaded ;

IX. Where the goods are liable to spoil ;

X. Where the crew of the captor urgently need
for their own use the goods seized.

In all these instances a document is to be drawn
up regarding the destruction, giving exactly the
reasons for it.

The French additional instructions of 1870 allow
the destruction of vessels as quite an ordinary
occurrence, " If the preservation of the prize inter-
fered with the success of the cruiser's ^ operations."
The Russian and English Prize Regulations enter
more minutely into the instances in which destruc-
tion is admissible. Valois ^ mentions that in a

' Cf. Ovtchinnikow's speech in 1907 (Prot. III., p. 899).
* " Germany as a Naval Power," p. 57.



96 CAPTURE IN WAR.

possible war between Germany and England, the
German cruisers would have scarcely any chance of
bringing their prizes into safety, and they would
therefore be forced to destroy them. " The German
zones of protection lie too far away from a probable
theatre of maritime warfare. The prizes we took
would thus be generally recaptured from us by the
English on their way to a German port. On the
other hand, England, by a deliberate policy, has
for hundreds of years acquired colonies everywhere
and can easily carry the prizes into one of its
numerous ports. For this very obvious reason
England recognises the destruction of prizes only
in one single instance, i.e.^ where the vessel is
incapable of continuing the voyage. In this respect
Russia is in an even more unfavourable position
than Germany."

Many noted writers are of opinion that the
destruction of prizes is in all cases contrary to the
law of nations. Others content themselves with
forbidding the sinking of neutral vessels.^ But
their view can by no means be accepted. If we
retain the right of prize at all, all the corollaries
must be deduced from it. Then such Powers as
have no points dappui near the theatre of war,
must not be deprived of the possibility of exercising

^ Cf. on this point the Hague Negotiations (Prot. I.,
p. 262), which, owing to the impossibility of reconciling the
English and the Russo- German views, came to nothing.
The London Convention on Maritime War at last in
Arts. 48-54 settled this question, and permitted the destruc-
tion of neutral captures only in exceptional cases.



BRINGING-TO AND SEARCH. 97

that right in many instances. Thus Fusinato ^ rightly
declared, in 1907, "It is certain that the right to
sink is only disputed in regard to neutral vessels."
The greatest prudence, however, is to be recom-
mended in regard to every destruction, and the
American Regulations, for one, allow such a course
only when there is not the slightest doubt that the
vessel is lawful prize.

In order that a warship may be able to determine
whether the requirements of the law of prize are
present, the '' right to bring-to and search " has been
instituted. This course has been mainly guided, up
to now, by Art. 17 of the Treaty of the Pyrenees
(November 17th, 1659) between France and Spain.
By that, the right of search has three aspects : the
right of bringing-to ; the examination of papers ;
and, if necessary, the search itself. The details
have been variously regulated by the laws of the
different countries.

As for the right of bringing-to, the warship has
first to call on the suspected vessel, by a coup de
semonce (warning gun), also called coup d' assurance
(or affirming gun), to heave-to, and at the same
time hoist its national flag. In doing so, the
French Ordinance of March 17th, 1696, even
declared it a breach of honour to fire this blank
charge under false colours, and Art. 197 of the
"Manual of Naval Prize Law" (London, 1888)
defines this view in the sense that the commander

' Prof. III., p. 944.
C.W. H



98 CAPTURE IN WAR.

may indeed pursue the vessel under false colours,
but by no means fite under them.

This signal shot is not declared to be uncon-
ditionally necessary on all occasions. By English
and former American law, any means is sufficient
by which the ship to be searched can realise the
intention of the warship. This version will no
doubt become general. For as v. Mirbach ^ rightly
insists, nowadays a shot is no longer to the
purpose, as the parties can understand one another
sufficiently without the aid of the international
flag code. This idea was first expressed in the
Japanese Prize Code of 1894.

Should the vessel not obey the order to heave-to,
a second gun will be fired, this time shotted, which
is, if possible, not to strike the ship, but to graze
her so closely that the challenge shall not fail to be
noticed. Not until this attempt also has proved
fruitless may the ship itself be fired on. It is,
however, at the option of the commander of the
warship to resort to other measures before firing on
the ship. The consequences of this conduct must
be borne to the full by the recalcitrant ship.

Resistance by force to the lawful exercise of the
right of stopping, search, or seizure, is by Art. 63
of the London Convention on naval war, in all
cases visited by the forfeiture of the ship. The
cargo is subject to the same treatment as that of
an enemy's vessel, i.e., the enemy's goods merely
are taken, the neutral goods as a rule are not taken.

» P. 41.



BRINGING-TO AND SEARCH. 99

For it would be going too far to make neutrals also
responsible for the conduct of the captain. On
the other hand, the property of the captain is
impounded, and likewise that of the owner who
appointed the captain.

Opinions differ as to how near the warship may
approach the merchantman. By some, the distance
is put at " cannon-shot," or " half cannon-shot," or
" out of cannon-shot," as, for instance, in the French
Regulations of 1854, and the Treaty of Friendship
between Germany and Costa Rica in 1875. But
there have always been more adherents of the
view, especially advocated by Ortolan, viz., that the
distance of the warships is to be regulated by the
circumstances. Von Mirbach ^ urges particularly
that the search is effected in much less time, and
commerce less interfered with, if the warship may
approach closely, and Wiegner ^ remarks very justly
that the fixing of a particular distance is impossible,
owing to the effect of wind and weather. Also, it
would give a chance of escape to an enemy's ship.
The manner of approach is very exactly laid down
in the Treaty of 1870 between the United States
and Peru. " The warship is to be at the greatest
possible distance, compatible with the safe carrying
out of the search. In this it has to be guided by
the wind and the sea running, and the degree of its
suspicions of the ship to be boarded." The Prussian



> P. 39-
2 P. 260.



H 2



loo CAPTURE IN WAR.

Regulations of 1864 and the Spanish Instructions
of 1 898 adopt the same standpoint.

The search of the vessel ensues by the requisition
of the warship. The Prussian regulations of 1864
laid down further, in 181 1, that the captain of the
enemy's ship had to come on board the warship
with the ship's papers. In this way, however,
deception was very easy, and now it is the general
rule that the warship should send a search party.
The French and American Regulations lay down
that this deputation shall consist of an officer and
several men. On the other hand, England and
Germany ^ demand in the first place two officers,
so that afterwards two reliable witnesses may be
forthcoming. These may wear uniform and
swords, the men,^ as a rule, not. The boat in
which the search-party goes away must, by the
American Regulations, not be larger than a whale-
boat. There may be arms in it. It has generally
to hoist the white flag, or, by the English Regula-
tions, that of its country.

The examination of the papers^ has two objects,
to see whether there is any doubt of their
genuineness, and whether they show the neutral
character of the vessel, and in the second place of
the cargo. A certificate, for instance, shows by

^ As, for instance, in the treaty with Costa Rica.

2 Generally two.

8 Hagerup proposed in 1907 to come to an international
decision as to what was to be regarded as sufificient proof of
neutrality of ownership and the destination of ship and
cargo.



BRINGING-TO AND SEARCH. loi

German law the right to hoist the flag in use. If
necessary a flag-warrant, the inspector's pass and
other documents are enough. In addition to this,
secondarily, the voyage papers are to be taken into
account, the muster-roll, the custom's declarations,
etc., so as to be able to ascertain the destination.
Lastly, the bills of lading give information as to
the character of the cargo. The American
Regulations give eight papers, " which may be
generally expected on board of a vessel " : a bill of
seaworthiness, the list of the crew and passengers
the log-book, the bill of health, a specific account
of the cargo, a charter-party, if the vessel is
chartered, and a list of the excisable goods and
bills of lading.-^ After examining the papers
the searching officer, if requested, gives the
merchantman a certificate of search. This has to
set forth the officer's rank, his name, by what
warship he is detailed, the date, and the ship on
which the search took place. It further testifies
that the ship's papers have shown the legitimacy
of the flag flown and the neutrality of the cargo.
The skipper himself enters in the log the under-
taking of the search.^ The commander of the
searching vessel is likewise to record the particulars
in his log, notably the name and nationality of
the ship searched, the nature and result of the
search, and the name of the officer who carried
it out.

' " Law of Naval War in the United States," 1902, p. 9.
2 Cp. Code, § 486.



I02 CAPTURE IN WAR.

The significance of recording these events
may be variously interpreted. The certificate
given to the merchantman by the officer of the
searching-party must be regarded as a matter of
international obligation. For, from the moment in
which the search reveals that there is no cause for
detention, the warship's action binds the Power to
which it belongs to compensate for damage, and
the man-of-war must recognise this obligation by
immediately drawing up the certificate. Should it
decline to do so, such conduct would be tanta-
mount to a declaration that it was unwilling to
compensate.

Less significance attaches to the respective
entries in the ship's logs. The neglect of them can
only be punishable by the laws of the country. It
has possible unpleasant consequences, however, in
connection with the proof of the damage resultant
at a subsequent hearing before the Prize Court.

Should serious suspicion arise that the papers
are forged, the warship has the right of search.
Some writers, as, for instance, Hautefeuille, are for
recognising such a right only on the territorial
waters of the belligerents and not on the high seas.
Nay, they go so far as to limit the right of
inspection to the papers which establish the
nationality and would limit the examination of the
papers which relate to the cargo, to cases in which
the ship is bound for a hostile port. Spain, in its
Regulations of 1898, gave its adherence to this
view. Yet this conception cannot be characterized



BRINGING-TO AND SEARCH. 103

as the right one. How easily the papers can be
forged ! ^ Wherever there is a solid and well-
founded suspicion, search must be conceded.
Various countries have also laid down definite
rules as to the method of search. For the
most part search can only be undertaken
by the captain of the ship in question and
his crew, of course, under the eyes of the visiting
officer. This is laid down, e.g:, by the French and
Japanese Regulations. By the Prussian Law of 1 864,
and English Prize Law the search is carried out
by the boarding officer and his boat's crew. In
none of these cases, however, is he allowed to open
closed spaces. That may only be done by the
captain of the vessel itself.

Of course, the suspicion of falsification of the
papers is not the only ground which justifies a
search. The possible conditions of such a course
cannot be fully enumerated.^ A decision is rather
to be arrived at by the commander according to
the circumstances of the particular case. The
Institiit de Droit International declares that in the
following cases sufficient grounds for suspicion are
present : —

L Where the merchant ship has not hove-to at
the summons of the warship ;

II. Where the vessel has resisted showing its
papers ;



» Cf. Liepmann, "Zeitschr. fiir Int. Pr. u. Oeff. R.,'
Vol. XVII., p. 331.
' Cp. "Actes," pp. 374, 375.



I04 CAPTURE IN WAR.

III. Where it has duplicate, forged, false, secret,
or imperfect papers ;

IV. Where the papers have been thrown over-
board or destroyed, especially where this has taken
place on the approach of the warship ;

V. Where the ship brought-to sails under false
colours.

By the English Regulations the captain of the
neutral ship has the right, immediately before the
examination to enter protest against its taking
place, a matter to which the examining officer is
bound to draw special attention.

An exception to the law of search is the law of
convoy, which first received international definition
by the London Naval War Convention after
the fruitless endeavours of the Second Armed
Neutrality Convention. By Art. 6i, neutral ships
under the escort of a war pennant are exempt
from search. The commander of the convoying
ship must give the commander of a warship of one
of the belligerents, at his request, every information
as to the nature of the goods and the cargo, the
obtaining of which would result from the search.
This information is to be furnished in writing,
" because that prevents equivocation and mis-
understanding, and more definitely places the
responsibility on the commander." ^ Should the
commander of a belligerent's warship have reason
to suppose that the commander of the con-
voying ship had been deceived, he imparts his
1 " Actes," p. 372.



BRINGING-TO AND SEARCH. 105

reasons for suspicion to the latter. In that case,
by Art. 62 of the said Convention, the verification
rests with the commander of the convo)'ing ship
alone. Whether an officer of the hostile cruiser is
to be brought in for this purpose is for the commander
of the convo}'ing ship to decide as he thinks best.
He must record the result of the verification in a
report, a copy of which is to be handed to the
officer of the hostile warship. If the facts so
recorded should, in the eyes of the commander of
the convoying ship, justify the seizure of one
or more of the convoy, he must withdraw his
protection from such.

The following further international standards
obtain in regard to taking captured vessels : Firstly,
the commander of the captor ship is responsible
for the preservation of the prize, and particularly
that nothing be removed or damaged. Care has
also to be taken that the prize is handed over to
the Prize Court as far as possible in the same state
as it was at the time of capture. To this end the
commander, calling in officers, is to draw up an
exact inventory and to secure the ship's papers in
a sealed wrapper. This applies also to cases in
which the ship has to be sunk. In that state it is,
as the American Regulations notably prescribe,
to be viewed, estimated, and taken stock of by as
many competent and impartial persons as can be
brought to the spot, and a report thereon is to be
sent in to the Prize Court before which action is to
be taken.



io6 CAPTURE IN WAR.

Prizes sail by general usage under the battle
ensign of the capturing Power. Perels ^ expresses
the opinion that the use of another ensign for
purposes of deception, notably the avoiding of
recapture, is not contrary to the law of nations.
The Austrian Regulations lay down the following
as to the colours to be flown by prizes : " On board
a captured ship flying the enemy's flag, the national
(Austrian) flag is at once to be hoisted at the peak
with the enemy's below it. A similar vessel under
neutral colours, on the other hand, retains the
same until it has been legally declared lawful prize.
As a sign, however, that it is in the hands of the
Imperial Navy, the imperial ensign may be hoisted
at the fore-top." The Maritime Law of the United
States forbids in general terms the use of false
colours.

Appropriation on the basis of judicial decision
may only ensue where the belligerent Power has
not first lost its hold of the vessel, either by its
freeing itself, or by the enemy's having torn it from


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