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9. The Hague Convention of 1907 with Regard to Immunities

from Capture in Naval War

Chapter I - Postal Correspondence

Article 1 The postal correspondence of neutrals or belligerents, whatever its official or private character, found at sea on board a neutral or enemy ship is inviolable. If the ship is detained, the correspondence is forwarded by the captor with the least possible delay.

The provisions of the preceding paragraph do not, in case of violation of blockade, apply to correspondence proceeding to or from a blockaded port.

Article 2 The inviolability of postal correspondence does not exempt a neutral mail-ship from the laws and customs of naval war respecting neutral merchant-ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible.

Chapter II — Exemption from Capture of Certain Vessels

Article 3 Vessels employed exclusively in coast fisheries, or small boats employed in local trade, together with their appliances, rigging, tackle and cargo, are exempt from capture.

This exemption no longer applies from the moment that they take any part whatever in hostilities.

The Contracting Powers bind themselves not to take advantage of the harmless character of the said vessels in order to use them for military purposes while preserving their peaceful appearance.

Article 4 Vessels employed on religious, scientific, or philanthropic missions are likewise exempt from capture.

Chapter III – Regulations regarding the Crews of Enemy Merchant-Ships captured by a Belligerent

Article 5 When an enemy merchant-ship is captured by a belligerent, such of its crew as are subjects or citizens of a neutral State are not made prisoners of war.

The same principle applies in the case of the captain and officers, likewise subjects or citizens of a neutral State, if they give a formal undertaking in writing not to serve on an enemy ship while the war lasts.

Article 6 The captains, officers, and members of the crew, if subjects or citizens of the enemy State, are not made prisoners of war, provided that they undertake, on the faith of a written promise, not to engage, while hostilities last, in any service connected with the operations of the war.

Article 7 The names of the persons retaining their liberty under the conditions laid down in Article 5, in the second paragraph, and in Article 6, are notified by the belligerent captor to the other belligerent. The latter is forbidden knowingly to employ the said persons.

Article 8 The provisions of the three preceding articles do not apply to ships taking part in hostilities.

Chapter IV - Final Provisions

Article 9 The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.

NOTE. — Articles 10–14, which follow are the same, mutatis mutandis as Articles 4-8 in the Convention with Regard to the Opening of Hostilities, for which see Part III, No. 2, page 178.

10. Visitation and Search


IN THE CASE OF THE Marianna Flora

In considering these points, it is necessary to ascertain what are the rights and duties of armed and other ships, navigating the ocean in time of peace. It is admitted, that the right of visitation and search does not, under such circumstances, belong to the public ships of any nation. This right is strictly a belligerent right, allowed by the general consent of nations in time of war, and limited to those occasions. It is true, that it has been held in the courts of this country, that American ships, offending against our laws, and foreign ships, in like manner, offending within our jurisdiction, may, afterwards, be pursued and seized upon the ocean, and rightfully brought into our ports for adjudication. This, however, has never been supposed to draw after it any right of visitation or search. The party, in such case, seizes at his peril. If he establishes the forfeiture, he is justified. If he fails, he must make full compensation in damages.

Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption; but, whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, sic utere tuo, ut non alienum lædas.

It has been argued, that no ship has a right to approach another at sea; and that every ship has a right to draw round her a line of jurisdiction, within which no other is at liberty to intrude. In short, that she may appropriate so much of the ocean, as she may deem necessary for her protection, and prevent any nearer approach.

This doctrine appears to us novel, and is not supported by any authority. It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations within cannon-shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive right has ever yet been recognized, and we see no reason for admitting its existence. Merchant ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to procure information, or to ascertain the character of strangers; and, hitherto, there has never been supposed in such conduct any breach of the customary observances, or of the strictest principles of the law of nations. In respect to ships of war sailing, as in the present case, under the authority of their government, to arrest pirates, and other public offenders, there is no reason why they may not approach any vessels descried at sea, for the purpose of ascertaining their real characters. Such a right seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear, that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. She has a right to consult her own safety; but, at the same time, she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers; either as to delay, or the progress or course of her voyage; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to us the natural result of the common duties and rights of nations navigating the ocean in time of peace. Such a state of things carries with it very different obligations

and responsibilities from those which belong to public war, and is not to be confounded with it. - (II Weaton, 1.)

NOTE. - This was a most extraordinary case. Each party mistook the other for a pirate, and commenced hostile operations in consequence. In reality the Alligator was a United States warship, and the Marianna Flora an innocent Portuguese merchantman. But the latter behaved in such a way that Lieutenant Stockton, the commander of the former, was justified in deeming her a pirate, whereas her captain had no justification for regarding the Alligator as one. The Marianna Flora was captured and brought in for adjudication. In the end she was released as innocent; but her claim for damages against Lieutenant Stockton was disallowed. Her misfortunes occurred through her own fault.

11. The Hague Convention of 1907 with Regard to the Estab

lishment of an International Prize Court


Article 1 The validity of the capture of a merchant-ship or its cargo is decided before Prize Courts in accordance with the present Convention when neutral or enemy property is involved.

Article 2 Jurisdiction in matters of prize is exercised in the first instance by the Prize Courts of the belligerent captor.

The judgments of these Courts are pronounced in public or are officially notified to parties concerned who are neutrals or enemies.

Article 3 The judgments of national Prize Courts may be brought before the international Prize Court

(1) When the judgment of the national Prize Courts affects the property of a neutral Power or individual;

(2) When the judgment affects enemy property and relates to

(a) Cargo on board a neutral ship; (6) An enemy ship captured in the territorial waters of a

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