515. The More Serious Offenses of Unneutral Service. "A neutral vessel will be condemned and will, in a general way, receive the same treatment as if she were a merchant vessel of the enemy:

"1. If she takes a direct part in the hostilities.

"2. If she is under the orders or under the control of an agent placed on board of the enemy Government.

3. If she is chartered entire by the enemy Government.

4. If she is at the time exclusively devoted either to the trans

captured for having done the work in question; this (principle) is analogous to that recognized in the case of contraband (Article 38). Cf. supra, § 509. "The second case also falls under two heads:

"There is, first, the carriage of a military detachment of the enemy, or that of one or more persons who during the voyage directly assist his operations, for instance, by signalling. If they are soldiers or sailors in uniform there is no difficulty; the vessel is clearly liable to condemnation. If they are soldiers or sailors in citizen's dress who might be mistaken for ordinary passengers, knowledge on the part of the master or owner is required, the character being assimilated to the owner. The rule is the same in the case of persons directly assisting the enemy during the voyage. "In such cases, if the vessel is condemned for unneutral service, the goods belonging to her owner are also liable to condemnation.

"These provisions assume that the state of war was known to the vessel engaged in the operations specified; such knowledge is the reason for and justification of her condemnation. The position is altogether different when the vessel is unaware of the opening of hostilities, so that she undertakes the service as in ordinary times. She may have learned of the opening of hostilities while at sea, but have had no chance of landing the persons whom she was carrying. Condemnation would then be unjust, and the equitable rule adopted is in accordance with the provisions already accepted in other matters. If a vessel has left an enemy port after such opening has been notified to the Powers to whom such port belongs, knowledge of a state of war will be presumed.

"The question here is merely one of preventing the condemnation of the vessel. The persons found on board who belong to the armed forces of the enemy may be made prisoners of war by the cruiser." Report, cited above.

Article 45 "is in a small measure a relaxation of the present English practice, by which a vessel might be condemned for carrying one or two officers of the enemy's forces, though in the course of an ordinary voyage, and though the masters and owners of the vessel were ignorant of the military character of the passengers." Bentwich, The Dec. of London, 87. Cf. the Orozembo, 6 C. Rob. 430, and Scott, 785. For a digest of the leading cases, now no longer authoritative but still useful, see Dana, note to Wheaton; and 7 Moore, Digest, § 1264.

"It would be intolerable to-day that a neutral ocean liner should be liable to condemnation, because a belligerent cruiser found among her passengers one or two persons who were proceeding to the enemy country to join the enemy forces, and who had come aboard without the knowledge of any responsible person, as could very easily be managed." Bentwich, op. cit., 87.

On the immunity of ordinary mail, cf. supra, § 412. Diplomatic dispatches are especially privileged. See the case of the Caroline (1808), 6 Rob. 464.

port of enemy troops or to the transmission of intelligence in the interest of the enemy.

"In the cases dealt with by the present Article, the goods belonging to the owner of the vessel are likewise liable to condemnation (Art. 46)." 5

5 D. L., 46. "The cases here contemplated are more serious than those in Article 45, which justifies the severer treatment inflicted on the vessel, as has been explained above.

"First Case. The vessel takes a direct part in the hostilities. This may take different forms. It goes without saying that if there is an armed conflict, the vessel is liable to all the risks of such a struggle. . . .

...

Second Case.-The vessel is under the orders or control of an agent placed on board by the enemy Government. His presence marks the relation which exists between the enemy and the vessel. In other circumstances the vessel may also have relations with the enemy; but to be subject to condemnation, she must be in the third class. "Third Case.

The whole vessel is chartered by the enemy Government, and is therefore entirely at its disposal; it can use her for different purposes more or less directly connected with the war, notably for purposes of transportation; such is the position of colliers which accompany a belligerent fleet. There will often be a charter party between the belligerent Government and the owner or master of the vessel; but it is only a question of proof. The fact that the whole vessel has been chartered suffices, in whatever way it may be established.

"Fourth Case. The vessel is at the time exclusively devoted either to the carriage of enemy troops or to the transmission of intelligence in the enemy's interest. In distinction from cases dealt with by Article 45, the question here is one of a service to which the ship is permanently devoted. The decision accordingly is that, so long as such service lasts, the vessel is liable to capture, even if, at the moment, when an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence.

"As in the cases in Article 45 and for the same reasons, goods belonging to the owner of the vessel found on board are also liable to condemnation.

"It was proposed to treat as an enemy merchant vessel a neutral vessel making at the same time, and with the authorization of the enemy Government, a voyage which she has only been permitted to make after the opening of hostilities or during the two preceding months. This rule would be applicable notably to merchant vessels admitted by a belligerent reserved in time of peace to the national marine of that belligerent—for instance, to the coasting trade. Several Delegations formally rejected this proposal, so that the question thus raised remains an open one." Report, op. cit.

If this latter proposal had been adopted, it would have revived the Rule of 1756. Bentwich (op. cit., 90-91) makes the following comment upon Article 46: "The consequence of assimilating the treatment of neutral vessels, committing the more serious breaches of neutral duty specified in this Article (46), with the treatment of enemy vessels is that

"(1) Not only goods belonging to the owner of the vessel, but all enemy goods found on board, though not contraband, may be confiscated, although when shipping the vessel was neutral. . .

"(2) The vessel may be sunk by the captor without being brought in for adjudication by a Prize Court.

...

Any individual embodied in the armed force of the enemy, who is found on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for the capture of the vessel (Art. 47)."

"6

"As to the four circumstances which are required to attach enemy characters to the vessel, the first, taking direct part in hostilities, would include acting as scout, or giving notice to a blockading squadron of the approach of an enemy fleet or neutral merchantman, or laying or removing mines at sea. . . The distinctive characteristic is that the vessel should be in the exclusive service of the enemy Government at the time of the capture, which virtually makes her an addition to the enemy's forces. Thus if a neutral vessel were solely engaged in providing the enemy's forces with coal or provisions, it would be treated as an enemy vessel. . . . Lastly, if a neutral vessel, though hired in times of peace, continues after the outbreak of war to transport troops or carry war material exclusively for the enemy, she is considered to identify herself with the enemy. . . . During the war between China and Japan in 1897 the Japanese sank an English vessel which was at the opening of hostilities captured in the act of transporting Chinese troops (the Kowshing); and no protest was made."

For the case of the Kowshing, see Takahashi, Cases during the Chino-Japanese War (1899). For the case of the Cheltenham during the Russo-Japanese War, see Hershey, 173 n. For the cases of the Industrie and the Quangnam, see Takahashi, 732-738.

D. L., 47. “Individuals embodied in the armed military or naval forces of a belligerent may be on board a neutral merchant vessel which is visited and searched. If the vessel is subject to condemnation, the cruiser will capture her and take her to one of her own ports with the persons on board. Clearly the soldiers or sailors of the enemy State will not be set free, but will be treated as prisoners of war. It may happen that the case will not be one for the capture of the ship-for instance, because the master was unaware of the status of an individual who had come on board as an ordinary passenger. Must the soldier or soldiers on board the vessel be set free? This does not appear admissible. The belligerent cruiser cannot be compelled to set free active enemies who are physically in her power and are more dangerous than this or that contraband article; naturally she must act with great discretion, and it is at her own responsibility that she requires the surrender of these individuals, but she has the right to do so; it has therefore been thought necessary to explain the point." Report, in Higgins, 596-597; or Int. Law Topics (1909), III.

"Article 47 gives the belligerent the right of removing from the neutral vessel any individual belonging to the enemy's forces; but to inculpate the vessel for such carriage there must be proof of unneutral intention shown by the fact that the vessel was not made in the ordinary course, but was specially undertaken in the enemy's interest." Bentwich, op. cit., 87.

According to Article 47, Messrs. Slidell and Mason, agents of the Confederate Government, could not have been forcibly removed from the British mail steamer Trent (as they were by Captain Wilkes, the commander of the American cruiser San Jacinto in November, 1861), since they were not "embodied in the armed force of the enemy."

On the Trent Affair, see especially, Atherley-Jones, Commerce in War, 311315; Bernard, Neutrality, etc., ch. 9; * Dana, note 228 to Wheaton, 644 ff.; Hall (6th ed.), 682-685; 2 Halleck (Baker's 3d ed.), 293-301; *Harris, The Trent Affair (1896); Historicus, II, 187-198; Lawrence (3d ed.), § 284; Marquardsen, Der Trent Fall (1862); *7 Moore, Digest, § 1265; 3 Wharton, § 374.

BIBLIOGRAPHY

Unneutral Service or Hostile Aid.15 Annuaire (1896), 231-233; Bernard, Neutrality, etc., 187-205; Bluntschli, Arts. 815-818; Boeck, Nos. 660-669; Bonfils (Fauchille), Nos. 1584-1588; 5 Calvo, §§ 2796-2823; * Dana, note 228 to Wheaton, 637 ff.; Despagnet, No. 691; *Dupuis, La guerre maritime (1899 and 1911), ch. 8; 3 Fiore, Nos. 1602-1605; Geficken, in 4 Holtzendorff, 731-738; Gessner, 99-111; *Hall, Pt. IV, ch. 6; 2 Halleck (Baker's 3d ed.), 289-301; 2 Hautefeuille, 170-176; Hirsh, Kriegskonterbande und verbotene Transporte in Kriegszeiten (1897); *Holland, (British) Manual of Prize Law, Nos. 88-105; Int. Law Topics (1905), 171– 191; *1 Kleen, 452-470; *Lawrence (3d and 4th eds.), Pt. IV, ch. 7; 3 F. de Martens, § 136; *7 Moore, Digest, §§ 1264-1265; 2 Oppenheim, Pt. III, ch. 5; Perels, § 47; 3 Phillimore, §§ 271-274; Rivier, 388-391; *Scott, Cases, 780-787; Snow, Cases, 477-490; Stockton's (U. S.) Naval War Code, Arts. 16 and 20; Takahashi (for cases during Russo-Japanese War), Pt. V, ch. 6; Ibid., Cases during Chino-Japanese War (1899), 52–72; Taylor, Pt. V, ch. 6; Vetzel, De la contrebande par analogie (1901); Walker, Manual, § 72; 2 Westlake, 261-265; Wheaton, §§ 502-504; * Wilson, ch. 27; Ibid., in Proceedings Am. Pol. Sci. Ass'n (1904), 68–78.

CHAPTER XXXV

RIGHTS OF VISIT AND SEARCH, OF CAPTURE, AND CONDEMNATION BY PRIZE COURTS

516. The Right of Visit and Search. In order to discover whether neutral vessels are engaged in such acts as carriage of contraband, unneutral service, breach of blockade, etc., as well as to determine the enemy or neutral character of ships and their cargoes, it is necessary to concede to properly commissioned warships the right of visit and search as ancillary to the rights of capture and subsequent condemnation by properly constituted prize courts.1

As Lord Stowell (then Sir William Scott) said (in 1799) in the famous case of the Maria (1 Robinson 340, 359, and Scott, 858):

The right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. This right is so clear in principle, that no man can deny it who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. . . . The right is equally clear in practice; for the practice is uniform and universal upon the subject." 2

...

1 "It (the right of search) has been truly denominated a right growing out of, and ancillary to, the greater right of capture. Where this greater right may be legally exercised without search, the right of search can never rise or come into question." C. J. Marshall, in The Nereide (1815), 9 Cranch, 388, 427.

Strictly speaking, it is a belligerent right and there is no right of visit apart from that of search.

The only exceptions to the non-exercise of the right of visitation and search in time of peace are in the case of a well-grounded suspicion of piracy (see supra, § 215), and when given by treaty to prevent slave trading (see supra, § 216).

2 But Lord Stowell added that "the right must unquestionably be exercised with as little of personal harshness and of vexation as possible."