Britain this distribution is regulated by the "Royal Proclamation as to Distribution of Prize Money" of August 3, 1886.1 There is no doubt whatever that, if a neutral subject buys a captured ship after her condemnation, she cannot be attacked and captured by the belligerent to whose subject she formerly belonged, although, if she is bought by an enemy subject and afterwards captured, she might be restored 2 to her former owner. to Sub Neutral sailing Flag. § 198. It has been already stated above in § 92 Vessels that merchantmen owned by subjects of neutral belonging States but sailing under enemy flag are vested with jects of enemy character. It is, therefore, evident that they States, but may be captured and condemned. As at present no under non-littoral State has, in fact, a maritime flag, Enemy vessels belonging to subjects of such States are forced to navigate under the flag of another State,3 and they are, therefore, in case of war exposed to capture. As this is rather hard, it may, perhaps, be expected that in future belligerents will instruct their Prize Courts to release such vessels provided the owners furnish proof of the neutral ownership and the necessity for them to sail under the enemy's flag. A remarkable case occurred during the FrancoGerman War. In January 1871 the "Palme," a vessel belonging to the Missionary Society of Basle, was captured by a French man-of-war, and condemned by the Prize Court of Bordeaux. The owners appealed and the French Conseil d'État set the vessel free, because equity demanded the fact to be taken into consideration that Swiss subjects owning vessels were obliged to have them sailing under the flag of another State. This Court further remarked that, although 1 See Holland, Prize Law, pp. 142-150. 2 See above, § 196. 3 See above, vol. I. § 261. Effect of Sale of Enemy Vessels during War. a man-of-war would always be justified in capturing such a vessel on account of her ship papers, the owners would be authorised to furnish the proof of the neutral ownership of the vessel, and of the absence of mala fides in having her sailing under the enemy flag.1 § 199. Since enemy vessels are liable to capture, the question must be taken into consideration whether the fact that an enemy vessel has been sold during the war to a subject of a neutral or to a subject of the belligerent State whose forces seized her, has the effect of excluding her appropriation.2 It is obvious that, if the question is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property captured by selling their vessels. Now there is no general rule of International Law which answers the question. The rule ought to be that, since commerce between belligerents' subjects and neutral subjects is not at all prohibited through the outbreak of war, a bona fide sale of enemy vessels should have the effect of freeing such vessels from appropriation, as they are, in fact, no longer enemy property. But the practice among the States varies. Thus, France 3 does not recognise any such sale after the outbreak of On the other hand, the practice of Great Britain and the United States of America 5 recognises such sale, provided it was made bona fide, and the new owner has actually taken possession of the sold vessel. Therefore, if the sale was contracted in war. 1 See Rivier, II. pp. 343-344, and Dupuis, No. 158. 2 See Holland, Prize Law, § 19; Hall, § 171; Twiss, II. §§ 162–163; Phillimore, III. § 386; Boeck, Nos. 178–180; Dupuis, Nos. 117129; Bonfils, Nos. 1344-1349. 3 See Dupuis, Nos. 96–97. 4 The Sechs Geschwistern, 4 Rob. 100; the Jemmy, 4 Rob. 31; the Omnibus, 4 Rob. 71. The Benito Estenger, 176, United States, 568. transitu, the vessel having started her voyage as an enemy vessel, the sale is not recognised, when the vessel is detained on her voyage, before the new owner has actually taken possession of her.1 during § 200. If a captured enemy vessel carries goods Goods sold consigned by enemy subjects to subjects of neutral Enemy States, or to subjects of the belligerent whose forces Subjects captured the vessel, they may not be appropriated, War. provided the consignee can prove that he is the owner. As regards such goods found on captured enemy merchantmen as are consigned to enemy subjects but have been sold in transitu to subjects of neutral States, there is no unanimous practice of the different States in existence. 2 British 3 and American practice refuse to recognise such sale in transitu under all circumstances and conditions, if the vessel concerned is captured before the neutral buyer has actually taken possession of the goods. On the other hand, French 5 practice recognises such sale in transitu provided it can be proved that the transaction was made bona fide. 1 The Vrow Margaretha, I Rob. 336; the Jan Frederick, 5 Rob. 128. 2 See Hall, § 172; Twiss, II. §§ 162, 163; Phillimore, III. §§ 387, 388; Dupuis, Nos. 141-149; Boeck, Nos. 182, 183. 4 Violence against Combatants. IV VIOLENCE AGAINST ENEMY PERSONS See the literature quoted above at the commencement of § 107. See also Bonfils, No. 1273. §201. As regards killing and wounding combatants in sea warfare and the means used for that purpose, customary rules of International Law are in existence according to which only those combatants can be killed or wounded who are able and willing to fight or who resist capture. Men disabled by sickness or wounds, or such men as lay down arms and surrender or do not resist capture, must be given quarter, except in a case of imperative necessity or of reprisals. Poison, and such arms, projectiles, and materials as cause unnecessary injury, are prohibited, as is also killing and wounding in a treacherous way.1 The Declaration of St. Petersburg 2 and the Hague Declaration prohibiting the use of expanding (DumDum) bullets, apply to sea warfare as well as to land warfare, as also did the now expired Hague Declarations concerning projectiles and explosives launched from balloons, and projectiles diffusing asphyxiating or deleterious gases.4 All combatants, further, all officers and members of the crews of merchantmen can be made prisoners of war. As soon as such prisoners are landed their 1 See the corresponding rules for warfare on land, which are discussed above in §§ 108-110. See also U.S. Naval War Code, article 3. 2 See above, § III. 3 See above, § 112. 5 This is pretty generally recog. nised, but was refused recognition by Count Bismarck during the Franco-German War (see below, $249) and is still denied by some German publicists, as, for instance, Lueder in Holtzendorff, IV. p. 479, note 6. treatment falls under articles 4-20 of the Hague Regulations. As long, however, as they are on board, the old customary rule of International Law, that prisoners must be treated humanely,1 and not like convicts, must be complied with. The Hague Convention for the adaptation of the Geneva Convention to sea warfare enacts, however, some rules concerning the shipwrecked, the wounded, and the sick who through falling into the hands of the enemy become prisoners of war.2 Non-com Forces. § 202. Just as military forces consist of combat- Violence ants and non-combatants, so do naval forces of belli- against gerents. Non-combatants, as, for instance, stokers, batant surgeons, chaplains, members of the hospital staff, of Naval and the like, who do not take part in the fighting, may not be attacked directly and killed or wounded. But they are exposed to all injuries indirectly resulting from attacks on and by their vessels. And they can certainly be made prisoners of war, with the exception of members of the religious, medical, and hospital staff, who are inviolable according to article 7 of the Hague Convention for the adaptation to maritime warfare of the principles of the Geneva Convention.4 part not § 203. Since and so far as enemy individuals who Violence are on board an attacked or seized enemy vessel and against Enemy Indo not belong to the naval forces do not take dividuals in the fighting, they may not directly be attacked and belonging killed or wounded, although they are exposed to all Naval injury indirectly resulting from an attack on or by Forces. their vessel. If they are mere private individuals, they can only exceptionally and under the same 1 See Holland, Prize Law, § 249, and U.S. Naval War Code, articles 10, II. ? See below, § 205. VOL. II. 3 See U.S. Naval War Code, article 3. 4 See below, § 209. P to the |