CHAPTER XXIII

PRIZE

VISIT, SEARCH, AND DETENTION

RIGHT OF VISIT AND SEARCH

$630

Although as a general rule states have exclusive jurisdiction on the high seas over vessels flying their flags, this rule is subject to certain qualifications in time of war. A belligerent has certain recognized rights, as indicated in the chapters of this Digest on "Maritime War" and "Interference With Neutral Commerce", with respect to the seizure and condemnation of enemy and neutral vessels and goods. Incidental to the exercise of these rights is the belligerent right of visit and search. Concerning visit and search in time of peace, see vol. II, pp. 659 et seq., of this Digest. The right of a belligerent to stop, to visit, and, if need be, to search may be exercised after the beginning of war, at any place outside neutral waters, upon private vessels in order to determine their nationality, their ports of departure and destination, the nature and national character of their cargoes, the nature of their employment, and other facts bearing upon their possible relation to belligerent operations.

If, as a result of visit and search, it is clear that the vessel or cargo, or both, are liable to condemnation, or if there is "probable cause" for believing that such liability exists, the belligerent warship may capture the vessel and assume control over it. Captured vessels must ordinarily be taken into port for adjudication by a prize court, but under exceptional circumstances a captured vessel liable to condemnation may be destroyed, subject to the requirement that the passengers and crew be first put in places of safety. The validity of all maritime captures of privately owned vessels and goods must be determined by a prize court of the captor or of an ally of the captor, even if the vessel has been destroyed, although at times belligerents have asserted that adjudication with respect to enemy vessels and goods was unnecessary. Each state regulates the details of the procedure to be followed by its naval forces in the exercise of visit, search, and capture; but that procedure must conform to international law. The law of prize, in its broader sense, embraces the entire subject of capture and

condemnation of privately owned vessels and cargoes, including both the substantive grounds for condemnation and the necessary procedural steps. The chapter on "Interference With Neutral Commerce" and portions of the chapter on "Maritime War" deal with the liability to condemnation of vessels and goods; the present chapter treats of the procedure. Although prize courts are called upon to decide questions governed by international law, they are national courts; and their decisions are frequently colored, if not controlled, by national law and policy.

In the decision, dated May 6, 1913, in the case of the steamer Carthage, arising between France and Italy, an arbitral tribunal selected from the members of the panel of the Permanent Court of Arbitration at The Hague stated that—

according to the principles universally acknowledged, a belligerent war-ship has, as a general rule and except under special circumstances, the right to stop a neutral commercial vessel in the open sea and proceed to search it to see whether it is observing the rules of neutrality, especially as to contraband.

Scott, Hague Court Reports (1916) 330, 333; Cour Permanente D'Arbitrage, Sentences du Tribunal Arbitral Franco-Italien (6 Mai, 1913) 5.

The convention on maritime neutrality concluded between the United States and other American republics at Habana in 1928 provides: "ARTICLE 1. The following rules shall govern commerce in time of war: "1. Warships of the belligerents have the right to stop and visit on the high seas and in territorial waters that are not neutral any merchant ship with the object of ascertaining its character and nationality and of verifying whether it conveys cargo prohibited by international law or has committed any violation of blockade. If the merchant ship does not heed the signal to stop, it may be pursued by the warship and stopped by force; outside of such a case the ship cannot be attacked unless, after being hailed, it fails to observe the instructions given it.

"The ship shall not be rendered incapable of navigation before the crew and passengers have been placed in safety.

"ARTICLE 2. Both the detention of the vessel and its crew for violation of neutrality shall be made in accordance with the procedure which best suits the state effecting it and at the expense of the transgressing ship. Said state, except in the case of grave fault on its part, is not responsible for damages which the vessel may suffer."

4 Treaties, etc. (Trenwith, 1938) 4743, 4745.

"Although no conclusive evidence of a general practice has been found, the Reporter would conclude that a belligerent is privileged to exercise the right of visit and search in regard to a merchant vessel on the high seas even though that vessel be owned or operated by a government. This conclusion is in accord with Article 32 of the Oxford Manual of Naval War adopted by the Institut de Droit International in 1913:

All vessels other than those of the navy, whether they belong to the State or to individuals, may be summoned by a belligerent war-ship to

stop that a visit and search may be conducted on board them. (Scott, Resolutions of the Institute of International Law (1916), p. 181.)

The subsequent question of the liability of the ship or its cargo to condemnation in prize court might well be affected by the general rules of international law applicable to the immunity of state-owned ships and other property."

Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), Comment, 33 A.J.I.L. Supp. (1939) 221-222. See also ibid. 532–533.

42. The belligerent right of visit and search, subject to exemptions mentioned in Section VII, may be exercised outside of neutral jurisdiction upon private vessels after the beginning of war in order to determine their nationality, the port of destination and departure, the character of their cargo, the nature of their employment, or other facts which bear on their relation to the war.

Instructions for the Navy of the United States Governing Maritime Warfare (June 1917).

The general policy of the United States Navy during the World War, as to visit and search, is indicated by the Instructions for the Navy of the United States Governing Maritime Warfare, June, 1917, and by Alnav No. 78, of 21 May 1918, which reads as follows:

Commanders of all Naval vessels shall whenever possible take necessary steps to assure themselves of the character of all vessels sighted on the high seas in accordance with international law and usage.

The Secretary of the Navy (Adams) to the Secretary of State (Stimson), Mar. 30, 1929, MS. Department of State, file 763.72112/12944; 1918 For. Rel., Supp. 1, vol. II, p. 934.

A memorandum of the Secretary of State on the status of armed merchant vessels, made public on April 27, 1916, included the following paragraphs:

(1) Innocent neutral property on the high seas can not legally be confiscated, but is subject to inspection by a belligerent. Resistance to inspection removes this immunity and subjects the property to condemnation by a prize court, which is charged with the preservation of the legal rights of the owners of neutral property.

(6) A belligerent warship has, incidental to the right of seizure, the right to visit and search all vessels on the high seas for the purpose of determining the hostile or innocent character of the vessels and their cargoes. If the hostile character of the property is known, however, the belligerent warship may seize the property without exercising the right of visit and search

Mail-ships

which is solely for the purpose of obtaining knowledge as to the character of the property. The attacking vessel must display its colors before exercising belligerent rights.

MS. Department of State, file 763.72/26342; 1916 For. Rel. Supp. 244, 247.

55. The inviolability of certain postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war as to neutral merchant ships in general.

Instructions for the Navy of the United States Governing Maritime Warfare (June 1917).

With respect to the treatment of the mails in wartime, see vol. VI, §607, of this Digest.

MODE OF EXERCISE

§631

The Instructions issued to the United States Navy on June 30, 1917, in treating of the method by which the right of visit and search should be exercised, provided:

43. The right should be exercised with tact and consideration, and in strict conformity with treaty provisions, where they exist. 44. Subject to any special treaty provisions the following procedure is directed: Before summoning a vessel to lie to, a ship of war must hoist her own national flag. The summons shall be made by firing a blank charge (coup de semonce), by other international signal, or by both. The summoned vessel, if a neutral, is bound to stop and lie to, and she should also display her colors; if an enemy vessel, she is not so bound, and may legally even resist by force, but she thereby assumes all risks of resulting damage.

45. If the summoned vessel resists or takes to flight she may be pursued and brought to, by forcible measures, if necessary.

46. When the summoned vessel has brought to, the ship of war shall send a boat with an officer to conduct the visit and search. If practicable, a second officer should accompany the officer charged with the examination. There may be arms in the boat, but the boat's crew shall not have any on their persons. The officer (or officers), wearing side arms, may be accompanied on board by not more than two unarmed men of the boat's crew.

47. The boarding officer shall first examine the ship's papers in order to ascertain her nationality, ports of departure and destination, character of cargo, and other facts deemed essential. If the papers furnish conclusive evidence of the innocent character of vessel, cargo, and voyage, the vessel shall be released; if they furnish probable cause for capture she shall be seized and sent in for adjudication.

48. If the papers do not furnish conclusive evidence of the innocent character of the vessel, the cargo, and voyage, or probable cause for capture, the boarding officer shall continue the

examination by questioning the personnel or by searching the vessel or by examining her cargo. If such further examination furnishes satisfactory evidence of innocency, the vessel shall be released; otherwise she shall be seized and sent in for adjudication. 49. The boarding officer must record the facts concerning the visit and search upon the log-book of the vessel visited, including the date when and the position where the visit occurred. This entry in the log must be made whether the vessel is held or not.

The French Naval Instructions of Mar. 8, 1934, on the application of international law in case of war, provide:

"ART. 94.-If sea conditions prevent you from sending a boat to board the ship that is stopped, and if you think that ship is able to send you a boat to take the party to make the visit, you shall ask it by signal to do

"ART. 95.-If the captain of the stopped ship proposes to you that he come on board your vessel with the papers for an examination, you may accept that suggestion."

Recueil général périodique et critique des décisions, conventions et lois relatives au droit international public et privé (1935), pt. VI, p. 6, translation.

and Japanese modifi

The British Ambassador, in March 1916, notified the Department of State that the practice of German raiding cruisers in disguising British themselves as neutral merchant vessels and firing on approaching enemy war vessels, had necessitated the adoption by British war ves- cations, 1916 sels of the following procedure in exercising the right of visit and search:

When it is the intention of the commander of a warship to send an officer on board a merchant ship by day, the following procedure will be adopted. A long pennant will be hoisted by the warship exercising the right of visit and search. The hoisting of this pennant will be accompanied by the firing of a rocket. This will signify that the merchant ship is to close the boat lowered by the warship, whether the warship remains near the boat or not. The procedure to be followed by night will be the same as that by day, except that two red Very's lights will be the signal for the merchant ship to close the boat, which, where possible, will be illuminated by a searchlight. When the weather precludes boarding, the ship of war will fire two green Very's lights, which will be the signal for the merchant ship to lie to until daylight.

Notification in similar terms was made to certain United States collectors of customs by British Consuls. The Department of State informed the Treasury Department that it "has deemed it wise not to agree to or acquiesce in any departure from or change in the established rules or customs in regard to the procedure to be followed by belligerent men-of-war in exercising the right of visit and search at sea".