allowed instead of bringing them before a Prize Court. 1 British practice does not, as regards the neutral owner of the vessel, hold the captor justified in destroying a vessel, however exceptional the case may be, and however meritorious the destruction of the vessel may be from the point of view of the Government of the captor. For this reason, should a captor, for any motive whatever, have destroyed a neutral prize, full indemnities are to be paid to the owner, although, if brought into a port of a Prize Court, condemnation of vessel and cargo would have been pronounced beyond doubt. The rule is, that a neutral prize must be abandoned in case it cannot, for any reason whatever, be brought to a port of a Prize Court.2 But the practice of other States does not recognise this rule. Thus, the United States Naval War Code, article 50, declares: "If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication-such as unseaworthiness, the existence of infectious disease, or the lack of a prizecrew-they may be appraised and sold, and, if this cannot be done, they may be destroyed. The imminent danger of recapture would justify destruction, if there should be no doubt that the vessel was a proper prize. But in all such cases all the papers and other testimony should be sent to the Prize Court, in order that a decree may be duly entered." According to Article 20 of her instructions of 1870, 1 The Actaeon, 2 Dodson, 48; Felicity, 2 Dodson, 381; Leucade, Spinks, 217. See Holland, Prize Law, $303. 2 See Professor Holland's letters published in the "Times" on August 6, 17, 30, 1904, and June 29, 1905. See also Holland, Neutral Duties in a Maritime War, as illustrated by Recent Events (1905, from the Proceedings of the British Academy, vol. II.) pp. 12, 13; Phillimore, III. $ 333; Twiss, II. § 166; Hall, $77; Lawrence, § 215. France allows her captors to destroy prizes-apparently neutral as well as enemy prizes-when the destruction is necessary for the safety of the captor or for the success of his operations. Russia, already in 1869, by § 108 of her Prize Regulations, allowed the destruction of a neutral as well as an enemy prize on account of its bad condition, risk of recapture, impossibility of sparing a prize crew, and small value of the prize vessel. And according to Article 21 of the Russian Prize Regulations of 1895 and Article 40 of instructions of 1901, the commander of a cruiser is authorised, under his personal responsibility, to burn or sink a neutral or enemy prize if it is impossible to preserve it on account of its bad condition, small value, danger of recapture, distance or blockade of the Russian ports, danger to the captor or the success of his operations. Japan, which according to Article 20 of her Prize Law of 1894 ordered her captors to release neutral prizes after confiscation of their contraband goods, in case the vessels cannot be brought into a port, altered her attitude in 1904, and allowed in certain cases the destruction of neutral prizes. Continental writers on International Law agree just as little as the States on the question of destruction of neutral prizes. Whereas some emphatically answer it in the negative,1 others decidedly answer it in the affirmative.2 Thus the matter is not at all settled. The question became of great importance in 1904, during the Russo-Japanese War. No case of Japanese captors sinking neutral prizes is reported but Russian 1 See, for instance, Taylor, §691, and Kleen, II. pp. 531-534. 2 See, for instance, Geffcken in Holtzendorff, IV. p. 777; Calvo, V. §§ 3019, 3028-3034; Fiore, Ransom and Re the cruisers sank the following neutral vessels : It ought to be mentioned that the question of destruction of neutral prizes must not be confounded with the destruction of neutral vessels in exercise of the so-called right of angary. This right-see above, § 365-can be exercised against neutral vessels whether they are prizes or not. Be that as it may, whenever a neutral vessel is for any reason whatever burnt, sunk, or otherwise destroyed, her crew, papers, and, if possible, her cargo, must be removed. § 432. Regarding ransom of captured neutral capture of vessels, the same is valid as regards ransom of captured enemy vessels.2 Neutral Prizes. As regards recapture of neutral prizes,3 the rule ought to be that ipso facto by recapture the vessel becomes free without payment of any salvage. Although captured, she was still the property of her neutral owners, and if condemnation had taken place at all, it would have been a punishment, and the re 1 See Lawrence, War, pp. 250- 406; Gessner, pp. 344-356; Kleen, 261. II. § 217; Geffcken in Holtzendorff, IV. pp. 778-780; Calvo, V. §§ 3210 2 Sce above, § 195. 3 See Hautefeuille, III. pp. 366- -3216. capturing belligerent has no interest whatever in the punishment of a neutral vessel by the enemy. But the matter of recapture of neutral prizes is not settled, no rule of International Law and no uniform practice of the different States being formulated regarding it. Very few treaties touch upon it, and the municipal regulations of the different States regarding prizes seldom mention it. According to British practice, the recaptor of a neutral prize is entitled to salvage, in case the recaptured vessel would have been liable to condemnation if brought into an enemy port. after § 433. Besides the case in which captured vessels Release must be abandoned, because they can for some reason Capture. or another not be brought into a port, there are cases in which they are released without a trial. The rule is that a captured neutral vessel is to be tried by a Prize Court in case the captor asserts her to be suspicious or guilty. But it may happen that all suspicion is dispelled even before the trial, and then the vessel is to be released at once. For this reason Article 246 of Holland's Prize Law lays down the rule: "If, after the detention of the vessel, there should come to the knowledge of the commander any further acts tending to show that the vessel has been improperly detained, he should immediately release her.. Even after she has been brought into the port of a Prize Court, release can take place without a trial. Thus the German vessels "Bundesrath" and "Herzog," which were captured in 1900 during the South African War and brought to Durban, were, after search had dispelled all suspicion, released without trial. 1 The War Onskan, 2 Rob. 299. See Holland, Prize Law, § 270. Trial of III TRIAL OF CAPTURED NEUTRAL VESSELS Lawrence, §§ 212-214-Maine, p. 96—Manning, pp. 472-483-Phillimore, III. §§ 433-508-Twiss, II. §§ 169-170—Halleck, II. pp. 393-429-Taylor, $$ 563-567-Wharton, III. §§ 328-330-Wheaton, §§ 389-397-Bluntschli, §§ 841-862-Heffter, §§ 172-173-Geffcken in Holtzendorff, IV. pp. 781-788-Ullmann, § 168-Bonfils, Nos. 1676-1691-Despagnet, Nos. 664-670-Rivier, II. pp. 353-356— Calvo, V. §§ 3035-3087-Fiore, III. Nos. 1681-1691-Martens, II. §§ 125-126-Kleen, II. §§ 219-234-Gessner, pp. 357-427-Boeck, Nos. 740-800-Dupuis, Nos. 282-301-Perels, §§ 56-57—Testa, pp. 244-247-Hautefeuille, III. pp. 299–365.—See also the monographs quoted above at the commencement of § 391, and Bulmerincq's articles on "Les droits des prises maritimes" in R.I., X.-XIII. (1878-1881). § 434. Although belligerents have, according to Vessels a International Law, the right to capture neutral Municipal vessels under certain circumstances, and although Matter. 1 they have the duty to bring these vessels for trial before Prize Courts, such trials are in no way an international matter. Just as Prize Courts are a municipal institution, so trials of captured neutral vessels are a municipal matter. The neutral home States of the vessels are not represented and, directly at least, not concerned in the trial. Nor is, as commonly maintained, the law administered by Prize Courts International Law. These Courts apply the law of their country. The best proof of this is the fact that the practice of the Prize Courts of different countries differs in many points. Thus, for 1 See above, § 192. The matter is regulated as far as Great Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch. 25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39); see Appendices XI. and XII. below, pp. 540 and 555. The "Règlement in ternational des prises maritimes," adopted in 1887 at Heidelberg by the Institute of International Law, provides in §§ 63-118 detailed rules concerning the organisation of Prize Courts and the procedure before them; see Annuaire, IX. (1888), p. 208. |