to their proximity to enemy ports, the danger of recapture, and the lack of a sufficient supply of coal, it was regarded as impossible to take them in for adjudication. In several cases the Supreme Court of Russia held that the prizes destroyed were not liable to condemnation, and compensation was awarded. 10 In one case, that of the Cilurmun, the cargo was jettisoned, and the ship spared from destruction.11 Why this procedure was not followed in the other cases does not appear.

The Russian naval prize regulations, prepared in 1895,12 authorize the destruction of prizes in certain cases. Article 21 reads as follows:

In exceptional cases, when the preservation of a captured vessel appears impossible on account of her bad condition or entire worthlessness, the danger of her recapture by the enemy or the great distance or blockade of ports, or else on account of the danger threatening the ship which has made the capture, or the success of her operations, it is permissible for the commander, on his own responsibility, to burn or sink the captured vessel, after he has taken off all persons on board, and as much of the cargo as possible, and arranged for the safety of the vessel's papers and any other objects which may be necessary for throwing light on the case at the inquiry to be instituted in accordance with the procedure in prize cases.

It will be noted that no distinction is made between enemy vessels and neutral vessels; both are liable to destruction under the same conditions. In consequence, however, of the protest of the English Government against the destruction of neutral vessels, the Russian Government in August, 1905, gave instructions to its naval commanders that in the future neutral merchantmen laden with contraband were not to be sunk "except in case of direst necessity."

The prize regulations of various other states likewise authorize destruction of prizes in exceptional cases, and some of them make no dis

10 Notably in the cases of the Ikhona and the Tetartos, the latter being destined to a neutral port and, therefore, not liable to capture, because Russia did not recognize the doctrine of continuous voyage.

"The facts concerning the destruction of neutral prizes by the Russians have been taken from the texts of the prize court decisions in each case, as printed in Hurst and Bray's Russian and Japanese Prize Cases, Vol. I (1912), and from Takahashi's International Law Applied to the Russo-Japanese War, pp. 310-33. There is also a summary in Baty's Britain and Sea Law, pp. 7-21.

12 The full text is printed in Hurst and Bray, op. cit., pp. 311-331.

tinction between enemy and neutral vessels. 13 Thus the American instructions to blockading vessels and cruisers in 1898 (Art. 28) provided that

If there are controlling reasons why the vessels may not be sent in for adjudication, as unseaworthiness, the existence of infectious disease, or the lack of a prize crew, they 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 was no doubt that the vessel was good 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 entered.

As was the case with the Russian regulations, no distinction was made between enemy and neutral prizes. Whether it was intended to authorize the destruction of neutral merchantmen in any case may be doubted. In fact, no merchant vessels, either enemy or neutral, were destroyed during the war with Spain.

The Japanese regulations of 1904 (Art. XCI) authorized the destruction of "captured" vessels when it was "unavoidable," or when the vessels were unseaworthy, when there was danger of recapture, or when the captor was unable to spare a prize crew without endangering his own safety. But before destroying the vessel, the commander was required to trans-ship all persons on board, and as far as possible, the cargo, and preserve all papers and documents. 14 No distinction was made in the Japanese regulations between enemy and neutral vessels, but in fact no neutral ships were destroyed by Japanese naval commanders. 15

The prize regulations of France in 1870 likewise authorized the destruction of neutral vessels "when their preservation endangers the safety or success" of the operations of the captor, but naval commanders were directed to use the right of destruction with the greatest reserve. The British Naval Prize Manual of 1888, however, advised the destruction of enemy vessels only, and directed naval commanders to release

16

13 For the texts of the prize regulations of the more important states governing the destruction of neutral prizes, see International Law Situations, 1905, pp. 64-68; 1907, pp. 77ff.

14 The Japanese regulations are printed in Takahashi, pp. 778-789.

15 See the list of vessels destroyed and captured during the Russo-Japanese War in Takahashi, pp. 75–283.

16 Snow, Cases on International Law, p. 577.

neutral prizes which, owing to their unseaworthiness or the inability of the captor to spare a prize crew, could not be sent in for adjudication.

In November, 1914, the British and French Governments signed a convention relating to the disposition of prizes taken by the naval forces of the allied governments, and accompanying the convention were certain instructions to British and French naval commanders in respect to the formalities to be observed in capturing prizes and the taking of them in, but nothing is said in regard to the right of destruction. 17

The French Government, by a decree of August 25, 1914, modified by a decree of November 6, 1914, put into effect the Declaration of London (Art. 49 of which allows the destruction of neutral prizes when they cannot be taken in without danger to the captor ship or to the success of the military operations in which it is engaged), with certain modifications and additions, none of which, however, relate to the disposition of prizes. 18 The British Government put the Declaration of London into operation with substantially the same additions and modifications. Great Britain and France, therefore, bound themselves not to destroy neutral prizes except in the cases authorized by the Declaration of London. In no case, it is believed, have the naval commanders of either belligerent deliberately destroyed a neutral merchantman during the present war for carrying contraband or for other reasons.

The German prize code of 1909, first made public on August 3, 1914, recognizes the right to destroy neutral vessels for carrying contraband, for breach of blockade or for unneutral service, if the taking of the ship into port would subject the capturing ship to danger or impede the success of its operations; for example, if the captured vessel is unseaworthy, or unable to follow the captor, lacks a sufficient supply of coal or is near the enemy's coast, or if the captor is unable to provide a prize crew (Art. 113). In all such contingencies it is assumed that the taking of the prize in would interfere with the success of the naval operations of the captor or would expose his ship to danger. 19 The right of destruction recognized by the German code is, therefore, somewhat broader than

17 See the text of the convention and the instructions in the Rev. Gén. de Droit Int. Pub., Jan.-June, 1915, pp. 35-38.

18 See, ibid., pp. 23-35, for the text of the French decrees.

19 Huberich, The Prize Code of the German Empire as in Force July 1, 1915, p. 66.

that allowed by the Declaration of London, since the latter does not admit the right of destruction for inability to spare a prize crew, or for lack of a sufficient coal supply or because of proximity to the enemy's coasts. Nevertheless, they might all be brought by a liberal interpretation within the purview of the Declaration, since it could fairly be claimed that the existence of these circumstances in any case would either involve danger to the captor or impede his operations were an attempt made to take the ship into a home port. Article 116 of the German prize code provides, however, that before destroying a prize the commander shall take off the papers and crew and that full provision shall be made for the safety of all persons on board. This humane requirement, found in all the prize regulations which allow destruction, has, of course, been often disregarded by the commanders of German submarines during the present war, and apparently with the approval of the German Government.

The destruction of British merchantmen by Russian cruisers during the Russo-Japanese War aroused considerable indignation in England, and the legality of the destruction of the Knight Commander, in particular, was vigorously attacked by English publicists. The Marquis of Lansdowne, in the House of Lords, referred to the act as "a very serious breach of international law" and as an outrage against which it was necessary to protest. Mr. Balfour, speaking in the House of Commons, described it as "entirely contrary to the accepted practice of civilized nations." Similar language was used by Mr. Thomas Gibson Bowles. 20 In a note of August 19, 1904, addressed to the British Ambassador at St. Petersburg, Lord Lansdowne said:

We understand that this right of destroying a prize is claimed in a number of cases; among others, when the conveyance of the prize to a prize court is inconvenient because of the distance of the port to which the vessel should be brought, or when her conveyance to such a port would take too much time or entail too great a consumption of coal. It is, we understand, even asserted that such a destruction is justifiable when the captor has not at his disposal a sufficient number of men from whom to provide a crew for the captured vessel. It is unnecessary to point out to your excellency the effects of a consistent application of

20 Holland, Letters on War and Neutrality, p. 161; Baty, Britain and Sea Law, p. 10; and International Law Situations, 1907, p. 82, and 1911, p. 57.

these principles. They would justify the wholesale destruction of neutral ships taken by a vessel at war at a distance from her own base upon the ground that such prizes had not on board a sufficient amount of coal to carry them to a remote foreign port—an amount of coal with which such ships would probably in no circumstances have been supplied. They would similarly justify the destruction of every neutral ship taken by a belligerent vessel which started on a voyage with a crew sufficient for her own requirements only, and therefore unable to furnish prize crews for her captures. The adoption of such measures by the Russian Government could not fail to occasion a complete paralysis of all neutral commerce.21

Professor Holland stood almost alone among English publicists in maintaining that the destruction of neutral prizes was not absolutely prohibited by international law, under any and all circumstances. In a letter of June 29, 1905, to the London Times, he declared that "a consensus gentium to this effect will hardly be alleged by those who are aware that such sinking is permitted by the most recent prize regulations of France, Russia, Japan, and the United States" although he readily admitted that the practice should by further international agreement be absolutely forbidden. 22 While it is most desirable, he said, that neutral property should not be exposed to destruction without inquiry, cases might occasionally occur in which a belligerent could hardly be expected to permit the escape of such property, though he is unable to send it in for adjudication. 23 At the time, however, the great preponderance of English opinion was against the right of destruction. Lawrence, speaking of the sinking of the Knight Commander, declared that it was not lawful to sink a neutral prize before taking it in. 24 Baty, in a review of

21 The text of the note may be found in International Law Situations, 1905, p. 74. 22 The text of his letter is printed in his Letters on War and Neutrality, p. 168. Professor Holland's position was strongly attacked by Thomas Gibson Bowles in several letters to the Times.

23 Neutral Duties in Maritime War, Proceedings of the British Academy, Vol. II, pp. 12-13, quoted by Moore, Digest, VII, 520.

24 War and Neutrality in the East, p. 255. Lawrence maintains that a "broad line of distinction" must be drawn between the destruction of enemy property and the destruction of neutral property; in the latter case the owners have a right to insist that an adjudication upon their claims shall precede any further dealings with it and that it is far better for a captor to release a neutral ship or goods than to risk personal loss and international complications by destroying innocent property. Principles of International Law, 4th ed., p. 484. This distinction is obviously well