Duty of giving Quarter. blockade of Port Arthur in 1904, and the question of § 183. As soon as an attacked or counter-attacked vessel hauls down her flag and, therefore, signals that she is ready to surrender, she must be given quarter and seized without further firing. To continue an attack although she is ready to surrender and to sink her and her crew would contain a violation of customary International Law, and would only exceptionally be admissible in case of imperative necessity or of reprisals. § 184. Seizure is effected by securing possession of Seizure. the vessel through the captor sending an officer and some of his own crew on board the captured vessel. But if this is for any reason impracticable, the captor orders the captured vessel to lower her flag and to steer according to his orders. § 185. The effect of seizure is different with regard Effect of to private enemy vessels, on the one hand, and, on the Seizure. other, to public vessels. Seizure of private enemy vessels may be described as a parallel to occupation of enemy territory in land warfare. Since the vessel and the individuals and goods thereon are actually placed under the captor's authority, her officers and crew become prisoners of war, and any private individuals on board are for the time being submitted to the discipline of the captor, just as private individuals on occupied enemy territory are submitted to the authority of the occupant. Seizure of private enemy vessels, although the capture is always made with the intention of appropriating the vessel and her enemy goods, does, however, not vest the property finally in the hands of the belligerent whose forces effected the capture. The prize has to be brought before a Prize Court, and it is the latter's confirmation of the capture through adjudication of the prize which makes the appropriation final for the capturing belligerent.2 On the other hand, the effect of seizure of public enemy vessels is their immediate and final appropriation. They may be either taken away into a port or 1 See U.S. Naval War Code, article 11. 2 See below, § 192. of Vessels of Dis covery and Exploration. at once destroyed. All individuals on board become prisoners of war, although, if there should be perchance on board a mere private enemy individual of no importance, he would probably not be kept for long in captivity, but liberated in due time. As regards goods on captured public enemy vessels, there is no doubt that the effect of seizure is at once the final appropriation of such goods on the vessels concerned as are enemy property, and they may therefore at once be destroyed, if convenient. Should, however, neutral goods be on board a captured enemy public vessel, it is a moot point whether or not they share the fate of the captured ship. According to British practice they do, but according to American practice they do not.1 Immunity § 186. According to a general international usage enemy vessels engaged in scientific discovery and exploration are granted immunity from attack and seizure in so far and so long as they themselves abstain from hostilities. The usage grew up in the the eighteenth century. In 1766, the French explorer Bougainville, who started from St. Malo with the vessels "La Boudeuse" and "L'Etoile " on a voyage round the world, was furnished by the British Government with safe-conducts. In 1776, Captain Cook's vessels "Resolution" and "Discovery," sailing from Plymouth for the purpose of exploring the Pacific Ocean, were declared exempt from attack and seizure on the part of French cruisers by the French Government. Again, the French Count Lapérouse, who started on a voyage of exploration in 1785 with the vessels "Astrolabe " and "Boussole," was secured immunity from attack and seizure. During the nineteenth century this usage became quite 1 See below, p. 405, note 2. general, and has now almost ripened into a custom; examples are the Austrian cruiser "Novara " (1859), and the Swedish cruiser "Vega" (1878). It must be specially observed that it matters not whether the vessel concerned is a private or a public vessel.1 of Fishing-boats. § 187. According to a general custom, which is, Immunity however, not recognised by Great Britain, coast fishing-boats, in contradistinction to boats engaged in deep-sea fisheries, are granted immunity from attack and seizure as long and in so far as they are unarmed and are innocently employed in catching and bringing in fish. Already in the sixteenth century treaties were concluded between single States stipulating such immunity to each other's fishing-boats for the time of war. But throughout the seventeenth and eighteenth centuries there are instances enough of a contrary practice, and Lord Stowell refused to recognise in strict law any such exemption, although he recognised a rule of comity to that extent. Great Britain has hitherto always taken the standpoint that any immunity granted by her to fishing-boats was a relaxation of strict right in the interest of humanity, but revocable at any moment, and that her cruisers were justified in seizing enemy fishing boats unless prevented therefrom by special instructions on the part of the Admiralty.5 It ought not, therefore, to be maintained that immunity of fishing-boats is granted by 4 1 See U.S. Naval War Code, article 13. The matter is discussed at some length by Kleen, II. § 210, pp. 503-505. Concerning the case of the English explorer Flinders, who sailed with the vessel Investigator from England, but exchanged her for the Cumberland, which was seized in 1803 by the French at Port Louis, in Mauritius, as she VOL. II. was not the vessel to which a safe- 2 The Paquette Habana, 175, 3 Young Jacob and Joanna, 4 See Hall, § 148. * See Holland, Prize Law, § 36. Immunity Voyage to a Belli gerent's a rule of universal International Law. And it must be specially observed that boats engaged in deep-sea fisheries are not exempt from capture even according to the practice of those States which grant immunity to coast fishing-boats. § 188. During the nineteenth century belligerents have several times at the outbreak of war decreed that enemy merchantmen, which were on their voyage to one of the former's ports at the outbreak of war, should not be attacked and seized during the period and from of their voyage to and from such port. Thus, at the outbreak of the Crimean War, Great Britain and France decreed such immunity for Russian vessels, Germany did the same with regard to French vessels. in 1870,1 Russia with regard to Turkish vessels in 1877, the United States with regard to Spanish vessels in 1898, Russia and Japan with regard to each other's vessels in 1904. But there is no rule of International Law which obliges a belligerent to grant such days of grace, and it is probable that in future wars days of grace will not at all be granted. The reason is that the steamboats of many countries are now built, according to an arrangement with the Government of their home State, on special designs which make them easily alterable into cruisers, and that a belligerent fleet can nowadays not for long remain effective without being accompanied by a train of transport-vessels, colliers, repairing-vessels, and the like.2 pocy mphecyf What of it! It takes up sfrace. Vessels in $ 189. Some instances have occurred when enemy vessels which were forced by stress of weather to seek refuge in a belligerent's harbour were granted 1 See, however, above, p. 185. 2 This point is ably argued by Lawrence, War, pp. 54-55. |