Great Britain and the Netherlands, claimed that the belligerents ought to waive their right of visitation over Swedish merchantmen if the latter sailed under the convoy of a Swedish man-of-war whose commander asserted the absence of contraband on board the convoyed vessels. The Peace of Westminster in 1654 brought this war to an end, and in 1756 the Netherlands, now neutral, claimed the right of convoy. But it was not before the last quarter of the eighteenth century that the right of convoy was more and more insisted upon by Continental neutrals. During the American War of Independence in 1780, the Netherlands again claimed that right, and when they themselves in 1781 waged war against Great Britain, they ordered their men-of-war and privateers to respect the right of convoy. Between 1780 and 1800 treaties were concluded, in which Russia, Austria, Prussia, Denmark, Sweden, France, the United States of America, and other States recognised that right. But Great Britain always refused to recognise it, and in July 1800 the action of a British squadron in capturing a Danish man-of-war and her convoy of six merchantmen for resistance to visitation called the Second Armed Neutrality into existence.1 Yet Great Britain still resisted, and by Article 4 of the "Maritime Convention" of St. Petersburg of June 17, 1801, she conceded to Russia only that vessels under convoy should not be visited by privateers. During the nineteenth century more and more treaties stipulating the right of convoy were concluded, so that it may be maintained that this right is now pretty generally 2 recognised. But Great 1 See above, § 290. 2 U. S. Naval War Code, article 30, recognises it likewise, in con formity with the constant practice of the United States in the past. Britain has never altered her attitude, and, since the Declaration of Paris of 1856 does not mention convoy at all, the recognition of the right of convoy cannot be enforced upon Great Britain against her will. Universal regarding § 418. There are no rules of International Law No which lay down all the details of the formalities of Rules the mode of visitation. A great many A great many treaties regu- Mode of late them as between the parties, and all maritime Visitation. nations have given instructions to their men-of-war regarding these formalities. Thereby uniform formalities are practised with regard to many points, but regarding others the practice of different States differs. Article 17 of the Peace Treaty of the Pyrenees of 1659 has served as a model of many of the mentioned treaties regulating the formalities of visitation: "Les navires d'Espagne, pour éviter tout désordre, n'approcheront pas de plus près les Français que la portée du canon, et pourront envoyer leur petite barque ou chaloupe à bord des navires français et faire entrer dedans deux ou trois hommes seulement, à qui seront montrés les passeports par le maître du navire français, par lesquels il puisse apparoir, non seulement de la charge, mais aussi du lieu de sa demeure et résidence, et du nom tant du maître ou patron que du navire même, afin que, par ces deux moyens, on puisse connaître, s'il porte des marchandises de contrebande; et qu'il apparaisse suffisamment tant de la qualité du dit navire que de son maître ou patron; auxquelles passeports on devra donner entière foi et créance." of Vessels § 419. A man-of-war which wishes to visit a Stopping neutral vessel must stop her or make her bring to. for the Although the chasing of vessels may take place under false colours, the right colours must be shown Purpose of Visitation. Visit. 2 The order for stop when vessels are stopped. § 420. The vessel, having been stopped or brought to, is visited by one or two officers sent in a boat from the man-of-war. These officers examine the papers of the vessel to ascertain her nationality, the character of her cargo and passengers, and, lastly, the ports from and to which she is sailing. Instead of visiting the merchantman and inspecting her papers on board, the practice is followed, by the men-of-war of some States, of summoning the master of the merchantman with his papers on board the former and examining the papers there. If everything is found in order and there is no suspicion of fraud, the vessel is allowed to continue her course, a memorandum of the visit having been entered in her log-book. On the other hand, if the inspection of the papers shows that the vessel is carrying contraband or analogous of contraband, See above, § 211. Perels, 53, pp. 284, 285. See above, vol. I. § 268, and 3 See Ortolan, II. p. 220, and Holland, Prize Law, §§ 195–216. 2 See above, vol. I. § 268. or that she is for another reason liable to capture, she is at once seized. But it may be that, although ostensibly everything is in order, there is nevertheless grave suspicion of fraud against the vessel. In such case she may be searched. § 421. Search is effected by one or two officers, Search. and eventually a few men, in presence of the master of the vessel. Care must be taken not to damage the vessel or the cargo, and no force whatever must be applied. No lock must be forcibly broken open by the search party, but the master is to be required to unlock it. If he fails to comply with the demand he is not to be forced thereto, since the master's refusal to assist the search in general, or that of a locked part of the vessel or of a locked box in particular, is already sufficient cause for seizing the vessel. Search being completed, everything removed has to be replaced with care. If the search has satisfied the searching officers and dispelled all suspicion, a memorandum is entered in the log-book of the vessel, and she is allowed to continue her voyage. On the other hand, if search brought contraband or another cause for capture to light, the vessel is seized. But since search on the sea can never take place so thoroughly as in a harbour, it may be that, although search has disclosed no proof to bear out the suspicion, grave suspicion still remains. In such case she may be seized and brought into a port for the purpose of being searched there as thoroughly as possible. But the commander of a man-of-war seizing a vessel in such case must bear in mind that full indemnities must be paid to the vessel for loss of time and other losses sustained if finally she is found 1 See above, vol. I. § 269, and Holland, Prize Law, §§ 217-230. Consequences ance to Visitation. innocent. Therefore, after a search has brought nothing to light against the vessel, seizure should take place only in case of grave suspicion. § 422. If a neutral merchantman resists visit or of Resist search, she is at once captured. No visit and search take place at all after capture, because confiscation is already the penalty for resistance, whether the vessel is or is not liable to be confiscated on other grounds. The question whether the vessel only or also her cargo can be confiscated for resistance is controverted. According to British and American theory and practice, the cargo is likewise confiscated. But Continental 2 writers emphatically argue against this and maintain that the vessel only is liable to confiscation. What constitutes Resist ance. Sailing under Enemy Convoy equivalent to Resistance. 4 § 423. Theory and practice agree that mere flight, mere attempt on the part of a neutral merchantman to escape visitation, does not in itself constitute resistance. But, of course, such vessel may be chased and compelled by force to bring to; some States even order their men-of-war to capture vessels attempting to escape visitation. But it constitutes resistance if a vessel defends herself by force against a man-of-war which endeavours to make her bring to, or if a vessel which has been brought to refuses to admit the visiting officer on board, or refuses to show her papers, or to submit to search. It also constitutes resistance if the master refuses to be present during search, or to open locked parts of the vessel, locked boxes, and the like. to § 424. Wheaton excepted, all writers would seem agree that the fact of neutral merchantmen's The Maria, 1 Rob. 340. 2 See Gessner, pp. 318-321. 3 The Maria, Rob. 340. See U.S. War Code, article 33 (1). |