may be appraised and sold, and if this can not 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 of the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered." 1903 U. S. Naval War College, Int. Law Discussions 53, 88. See also 1905 idem, Int. Law Topics and Discussions 62-76; 1907 idem, Int. Law Situations 75 et seq. A British warship captured a German trawler (not engaged in coast fishing) in the North Sea and then sank it because naval operations did not permit putting a prize crew on board. The Prize Court did not condemn the vessel but gave a declaration that it was properly sunk at sea. The Stoer, V Ll. Pr. Cas. 18 (1916). A German vessel left a German Pacific island in 1914 for Hawaii, apparently in order to avoid capture by taking shelter in a neutral port. When near its destination it was captured by a Japanese vessel and sunk. The Japanese Prize Court at Sasebo was of the opinion that "a belligerent power can capture any enemy merchantman which navigates in the public sea, knowing the outbreak of war; and it is also a well-established rule of the international law, recognized by the theory and precedents, that the captor can destroy the prize in case it hinders the military action to take the captured ship into the captor's port". The Eorus (Jan. 9, 1915), 1923 U.S. Naval War College, Int. Law Decisions and Notes 169, 170. The prize regulations of several countries on this subject are collected in 1925 U. S. Naval War College, Int. Law Docs. 72-81. The Italian Laws of War of 1938 provide: “ART. 194. A captured enemy vessel may be destroyed when the circumstances make it perilous or difficult to conserve it, especially in the following cases: "1. When the presence of an enemy naval force raises the probability "2. When the captured vessel cannot, by reason of shipwreck or other "3. When the captured vessel cannot be conducted to port without com- During the European War of 1914-18 it was held by German prize courts that when enemy merchant vessels were destroyed by German naval craft, the owners of neutral goods on board had no right to compensation. See § 611, ante. With respect to the safety of passengers and crews of vessels destroyed, see §641, ante. With respect to attack on merchant vessels, see §596, ante. The following rules regarding the destruction of neutral vessels were agreed upon in 1909 at the London Naval Conference: ARTICLE 48. A neutral vessel which has been captured may not be destroyed Neutral by the captor; she must be taken into such port as is proper for vessels the determination there of all questions concerning the validity of the capture. ARTICLE 49. As an exception, a neutral vessel which has been captured by a belligerent warship, and which would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the safety of the warship or to the success of the operations in which she is engaged at the time. 1909 For. Rel. 318, 328. The question of the destruction, in cases of force majeure, of neutral merchant vessels captured as prizes was considered at the Second Peace Conference at The Hague in 1907. The United States Delegation submitted the following proposal: "If for any reason whatever a captured neutral vessel cannot be brought to adjudication, such vessel must be released." Scott, Proceedings of the Hague Peace Conferences: The Conference of 1907 (1920), vol. III, p. 1153. For explanations of the American and similar British positions, see the remarks of Sir Ernest Satow in the Fourth Commission and Brigadier General Davis in the Fourth Commission, Committee of Examination, ibid. 892–895, 1032-1033. Russia took the position that destruction should be prohibited except in cases where preservation of a captured vessel might endanger the safety of the capturing vessel or the success of its operation, in which cases destruction would be permitted only if the most careful precautions were taken as to preservation of crew and papers. The Russian position was supported by several other delegations. Ibid. 1152. The destruction of prizes was linked in discussion with article XXIII of Hague Convention XIII permitting prizes to be brought into neutral ports for sequestration (see post §673). Ibid. 485-486. No agreement on the question was reached. For the report of the Fourth Commission to the Conference, see ibid., vol. I, p. 257. See also 1905 U. S. Naval War College, Int. Law Topics and Discussions 76, and 1907 idem, Int. Law Situations 75-108. The view presented by the United States at the London Conference corresponded with the Naval War Code of 1900, which did not relate particularly to neutral vessels. See pp. 254-255 ante, and 1903 U.S. Naval War College, Int. Law Discussions 87-88. The position taken by the American Delegation was in accord with the articles as adopted. 1911 idem, Int. Law Situations 79. In its report the American Delegation made the following comments: "... While some proclaimed the right to destroy neutral prizes, no one admitted that this could be done except for grave reasons. While some denied the right to destroy, all were inclined to admit that there might be exceptional circumstances under which destruction must be permitted. "All admitted that in general a neutral prize ought not to be destroyed, but should be taken to a prize court; but under exceptional circumstances a vessel otherwise liable to confiscation might be destroyed, though it would be necessary to care for persons and papers on board.” The American Delegates to Secretary Bacon, Mar. 2, 1909, 1909 For. Rel. 304, 309. For instructions to the British Delegation, see Correspondence and Documents Respecting the International Naval Conference, Held in Lon don, December 1908-February 1909, Miscellaneous, No. 4 (1909), Cd. 4554, pp. 28-30. See also the report of the British Delegates, ibid. 98-99. For discussions during the Conference, see Proceedings of the International Naval Conference, Held in London, December 1908-February 1909, Miscellaneous, No. 5 (1909), Cd. 4555, pp. 271-278. See also 1911 U.S. Naval War College, Int. Law Situations 77-81. A collection of prize regulations of various countries dealing with the destruction of neutral merchant vessels is printed in 1925 U.S. Naval War College, Int. Law Docs. 74-77. The German Prize Ordinance of 1909 stated (art. 113) that inability of the capturing vessel to spare a prize crew was an example of a situation in which "the success of the operations in which she is engaged is thereby imperiled". As to this point, however, the arbitral tribunal, passing on Portuguese claims against Germany under the annex to articles 297 and 298 of the Treaty of Versailles, while holding Germany liable for the destruction of a Portuguese vessel, pointed out that liability did not arise from the simple fact that the vessel had been destroyed in lieu of being brought into port. The rule of article 49 of the Declaration of London was recited, and the tribunal said that when, in view of the type of the capturing craft, it was obvious that the captor could not conduct the vessel to port or spare a prize crew, it was not necessary to produce further proof that the safety of the vessel or the success of its operations was involved, and that this was true of the type of German submarines then operating in the English Channel. The Cysne (Portugal v. Germany, June 30, 1930) Annual Digest, 1929-30, Case No. 287. Article 73 of the German Prize Law Code of Aug. 1939 provides: "(1) Captured neutral vessels may be destroyed if: "1. They were captured because of proceeding under enemy convoy, forcible resistance, or aid to the enemy and "2. It appears to be inexpedient or unsafe to bring them to port. "(2) By way of exception neutral vessels which were captured for reasons other than those named in par. 1 No. 1 may likewise be destroyed if: "1. Their condemnation would be expected as a certainty and "2. To bring them to port would expose the vessel which captured them to danger or might prejudice the success of the enterprises on which it is engaged." Reichsgesetzblatt (1939) 1585, 1592; Department of Commerce, III Comparative Law Series (1940, no. 1) 35. The Italian Laws of War of July 1938 provide in article 195: "A captured neutral vessel which is subject to confiscation may be destroyed only if the capturing vessel, for reasons of security or the success of the operations [in which it is engaged], cannot conduct it into port, nor be certain that the captured vessel goes to the designated port." Gazzetta ufficiale, Sept. 15, 1938, no. 211, p. 20, translation. The William P. Frye, an American vessel en route from the United States with a cargo of wheat consigned to Queenstown, Falmouth, or Plymouth to order, was stopped at sea by a German cruiser. According to the German account the commander of the cruiser first tried to remove the cargo but later took the ship's papers and her crew on board and sank the American ship. Germany concluded in a note to the United States that the action was in accordance with the principles of international law as laid down in the Declaration of London and the German Prize Ordinance of 1909, since the alternative British ports of destination were regarded by her as fortified places and cargoes of conditional contraband consigned to them were presumed by her to have a hostile destination in the absence of proof to the contrary. Such proof, she stated, could not be adduced at sea since the consignments were to order. It was furthermore said that the German cruiser could not bring the vessel in without peril to itself or the success of its operations. Germany admitted, however, that she was bound to pay compensation for the loss of ship and cargo by virtue of article 13 of the treaty of July 11, 1799 between the United States and Prussia, providing with reference to articles usually regarded as contraband that— "no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors." 2 Treaties, etc. (Malloy, 1910) 1486, 1490. (This treaty remained in force by virtue of article 12 of the treaty of commerce and navigation between the two countries dated May 1, 1828, ibid. 1496, but it has since been abrogated.) Germany stated that prize proceedings would be held to determine the amount of the indemnity. The view of the United States was that the destruction of the vessel constituted a violation of the treaty and that the question of damages was one for diplomatic settlement. To the German answer that under the treaty it had the right to detain the vessel, the United States replied by referring to a subsequent provision in the same article permitting the commander of the captured vessel to deliver up the contraband goods, in which case the vessel was not to be detained. The United States further contended that if the goods were contraband this action should have been taken and if noncontraband neither the destruction of the cargo nor that of the vessel could be justified under international law. The discussion between the two countries continued at considerable length. For further material on the case, see post, §646; 1915 For. Rel. Supp. 357, 360-361, 376-377, 435-436, 450-453, 493-495. In other cases involving the destruction of neutral American vessels, usually by submarines and without warning, Germany admitted liability, claiming that the action was the result of mistake. See also correspondence concerning the Gulflight and the Nebraskan, the Ambassador to Germany (Gerard) to the Secretary of State (Bryan), no. 992, June 1, 1915, MS. Department of State, file 763.72/1864; Mr. Gerard to Mr. Lansing, telegram 2573, July 12, 1915, ibid. 300.115N27/17; 1915 For. Rel. Supp. 439, 468. In a protest to Germany concerning the destruction of the Netherlands vessel Medea the Netherlands Government contended that there was no right under international law to destroy neutral vessels. It said that the Declaration of London had not been ratified and that, in any case, Germany had not complied with its terms. Germany maintained that the terms of the declaration had been complied with. See XXIV Revue générale de droit international public (1917), Documents, 90 et seq. See also The Medea, I Entscheidungen des Oberprisengerichts in Berlin (1918) 131, Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 111, and ante, pp. 75-76; vol. VI, pp. 469-470; and The Maria, I Entscheidungen des Oberprisengerichts in Berlin (1918) 45, Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 34. See also II Garner, International Law and the World War (1920) 271-273. For discussion of German practice involving vessels of various nationalities, see ibid. 269-282. Wooden bobbins on a Norwegian ship bound from Norway to England were lost when the ship was sunk by a German vessel on the ground that the larger part of the cargo was contraband. The German Imperial Supreme Prize Court refused to allow indemnity to the owners of the vessel or of the non-contraband goods lost, stating that the vessel was "lawfully sunk". The Mineral (Apr. 26, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 292, Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 221. A Norwegian vessel bound from a Norwegian port to the French port of Nantes was captured and destroyed by a German warship. The non-contraband cargo on board greatly exceeded the contraband cargo (26 times in value, 13 times in freight, and 31 times in weight). The German Imperial Supreme Prize Court held that the ship and the majority of the cargo were not liable to seizure and awarded damages for the destruction of the ship and of the neutral-owned non-contraband cargo. But under the German Prize Ordinance of 1909 the court held that no compensation should be made for the destruction of enemy-owned non-contraband goods lost in the wrongful sinking of the ship. The Papelera (June 29, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 334, Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 231. service The Instructions for the Navy of the United States Governing Mari- Unneutral time Warfare (June 1917) stated: 95. Engaging in unneutral service as defined in paragraph 39 stamps a neutral vessel with hostile character, and such a neutral vessel made prize may be destroyed by the capturing officer in the case of military necessity, when the vessel can not be sent or brought in for adjudication. 96. Owing to the serious responsibility involved, a neutral vessel not engaged in unneutral service as defined in paragraph 39, must not be destroyed by the capturing officer save in case of the gravest military emergency which would not justify him in releasing the vessel or sending it in for adjudication. If circumstances permit, it is preferable to appraise and sell the prize, as provided in section 4615, Revised Statutes [34 U.S.C. § 1133] rather than to destroy it. With respect to unneutral service, see §622, ante. ... The neutral Greek vessel Kyma, chartered to the French Government, while carrying a cargo of munitions from France to a French colony, was torpedoed and sunk on the high seas by a German submarine. The Mixed Arbitral Tribunal hearing Greek claims against 440083-43-vol. VII-18 |