of his operations would be impeded. But in all such cases the right of destruction should be exercised with the greatest reserve and only after all papers had been preserved and provision made for the safety of the passengers and crew. The Russian proposal was defended at length by Admiral Ovtchinnikow. He admitted that in principle it was preferable to take in all prizes, enemy as well as neutral, but it was often impossible to do this, and in such cases the captor could not be expected to release them. Suppose, for example, he said, a captor should after taking a prize find himself in close proximity to a powerful enemy and his prize, flying a neutral flag, is laden entirely with contraband of war, such as cartridges, projectiles, powder and other explosives. Certainly it would be more profitable for the captor to preserve these articles for his own use, but the taking in of the prize might be impossible, by reason of the proximity of his more powerful enemy and the remoteness of his own ports which might, moreover, be effectively blockaded. In such a case, the captor should have the right to destroy. 56 His argument was reinforced by that of his colleague, Captain Behr, who contended that in certain cases the right of destruction was absolutely necessary, as where a neutral vessel laden with arms and munitions of war clearly intended for the enemy but which, for lack of coal, inability to spare a prize crew or the danger of recapture by the enemy, could not be taken in.57 The Russian proposal was also defended by the German delegate, Herr Kriege, who asserted that the right of destruction in exceptional cases was recognized by the existing rules and practice, and that it was indispensable from the point of view of military necessity. He cited the opinion of Holland (quoted above), and of Lord Stowell in the case of the Felicity (incorrectly it is believed) in favor of the right of destruction in exceptional cases.58

Count Tornielli of Italy sought to remove the necessity for destruction by a proposal allowing prizes to be taken into neutral ports pending sequestration by a prize court.59 This proposal, embodied in Article 23 of the Convention Respecting the Rights and Duties of Neutral Powers

56 Deuxième Conférence International de la Paix, actes et documents, p. 900. 57 Ibid., pp. 991-992.

58 Ibid., pp. 992-993.

59 Ibid., p. 903.

in Naval Warfare, represents the only achievement of the conference on the subject of destruction.60 Its purpose, as M. Renault pointed out, was "to render more rare or to prevent entirely the destruction of prizes." Sir Ernest Satow strongly opposed the adoption of this article, because it made no distinction between enemy and neutral prizes and allowed belligerents the right to make use of neutral ports to their peculiar advantage. The delegates of a number of the great Powers, including those of Great Britain, Japan and the United States, however, either voted against the proposal or abstained from voting, and their governments later reserved their assent to the article as adopted. Undoubtedly, if neutrals could be induced to allow belligerents this privilege, the excuse or necessity for destruction would in many cases be removed, but there is little disposition among neutrals to grant it.

The discussion of the question of the right to destroy neutral prizes was renewed at the International Naval Conference at London in 1908-09. Sir Edward Grey, in a letter of December 1, 1908, to Lord Desart, president of the British delegation, dwelt upon the desirability of an agreement which would place greater restrictions upon the right of belligerents to destroy neutral prizes. The discussions at the Hague Conference had evidently convinced the British Government of the necessity of making some concessions to those who defended the right of destruction in exceptional cases, and it did not therefore insist as in 1907 on absolute prohibition. Adverting to the fact that it was universally admitted that all prizes ought, if possible, to be taken into a prize court for adjudication, Sir Edward Grey admitted that the right to destroy enemy prizes in cases where the captor finds himself unable, without compromising his own safety or without endangering the success of his operations, or where, owing to the distance from a home port, the prize could not be taken in, was generally recognized. As to neutral prizes, Great Britain, he said, had always contended that if they could not be taken in they should be released, and that no military necessity could justify destruction. His Majesty's Government, he said, could not

60 The proceedings of the Second Hague Conference in respect to the destruction of prizes are reviewed and analyzed by Dupuis in Le Droit de la Guerre Maritime d'après Les Conférences de la Haye et de Londres, pp. 372–382; and Lémonon, La Seconde Conférence de la Paix, pp. 685-694. The memoranda submitted to the Conference are analyzed in International Law Situations for 1911, pp. 61-68.

admit the proposition that inability to spare a prize crew was sufficient justification to destroy a vessel, for such an admission would probably be held to authorize destruction in the majority of cases where the captor had no convenient port of his own. However, His Majesty's Government might be prepared, he said, to admit the right to sink neutral prizes in case of imperative military necessity, but it was not prepared to admit that inability to spare a prize crew or the mere remoteness of a convenient neutral port constituted a military necessity which would justify such a procedure.6

61

Nevertheless, the memorandum submitted by the British delegation, and also that of Japan, proposed that the destruction of neutral vessels be prohibited in all cases whatsoever.62 The proposals submitted by the other delegations, while admitting the general principle that neutral ships ought to be taken in for adjudication, nevertheless affirmed the right of a belligerent to destroy in exceptional cases. The German memorandum proposed to recognize the right in cases where the taking in would compromise the safety of the captor or the success of his operations.63 The memorandum of the American delegation proposed the rules of the Naval Code of 1900, Article 50 of which permitted destruction where there were controlling reasons why vessels should not be sent in for adjudication, such as unseaworthiness, the existence of infectious diseases, or the lack of a prize crew or imminent danger of recapture.64 The Austro-Hungarian memorandum stated that absolute prohibition was desirable; that belligerents should be allowed to take their prizes into neutral ports pending sequestration, and that they should be required to do this in all cases except where it would compromise the safety of the captor or the success of his operations.65 The French memorandum proposed to authorize destruction only when the taking of the prize in would compromise the safety of the captor or the success of his operations, as, for example, where he could not spare a prize crew, but in every such case the right of destruction should be exercised

61 Proceedings of the International Naval Conference, House of Commons Sessional Papers, Misc. No. 4, Vol. 54 (1909), p. 28.

62 Ibid., No. 5, p. 38.

63 Ibid., p. 6.

64 Ibid., pp. 8-16.

65 Ibid., p. 21.

with the greatest reserve. The memorandums submitted by the delegations of the other Powers proposed to recognize the right of destruction under essentially similar conditions.6 67

The discussion of the question was very full, especially by the delegates having technical knowledge of the methods of naval warfare. The British delegation reaffirmed the views of the British Government in 1907; but, realizing that if any agreement was reached the right to destroy in exceptional cases would have to be admitted, they directed their efforts toward obtaining adequate safeguards against the abuse of the right and provision for due reparation to injured neutrals.68 The Russian and German delegates defended the right of destruction, as in 1907. The American delegates admitted that in certain cases it might be impossible for a captor to take a prize in, and that imperative military necessity might require destruction. But Admiral Stockton expressed the fear that unless the conditions under which the right of destruction was admitted were strictly defined, the practice of destroying prizes would become the rule instead of the exception.

The rule finally adopted by the Conference affirmed the general principle that a neutral vessel cannot be destroyed, but must be taken in for adjudication by a prize court. Nevertheless, by way of exception, the right of destruction was admitted in cases where conveyance of the prize ship to port would involve danger to the captor or to the success of the military operations in which he was at the time engaged (Art. 49).69 The effort of the British delegation to obtain express recognition of the rule that mere inability to spare a prize crew did not constitute a sufficient justification for destruction failed to receive the approval of the Conference, it being regarded as unwise to undertake the enumeration of any particular contingencies which should constitute an element of danger. But, according to the Declaration, only neutral vessels which are liable to condemnation by a prize court may be destroyed. Not every ship,

66 Proceedings of the International Naval Conference, House of Commons Sessional Papers, Misc. No. 4, Vol. 54 (1909), p. 30.

67 The memorandums of the several delegations are analyzed by Dupuis, op. cit., pp. 383 ff. See also, Int. Law. Sits., 1911, pp. 73–77.

68 See the letter of the British delegates to Lord Desart, March 1, 1909, House of Commons Sessional Papers, Misc., No. 4 (1909), p. 98.

69 See the analysis and comment in Bentwich, The Declaration of London, pp. 94-95.

therefore, guilty of violating the rules in respect to contraband and blockade, is liable to destruction; for, according to Article 40 of the Declaration, a vessel carrying contraband is liable to condemnation only when more than half its cargo consists of contraband goods. In cases where contraband is carried in smaller proportions, the right of condemnation, and consequently of destruction, is not recognized. The burden of proving that he acted in the face of "exceptional necessity" was placed upon the captor, and in case he fails to produce such proof, he is bound to indemnify the parties interested (Art. 51). In case the capture is subsequently declared invalid, though the act of destruction has been held to be justifiable, the captor must pay compensation in place of the restitution to which the interested parties would have been entitled (Art. 52).

Article 50 of the Declaration took care, however, to provide that before destruction in any case all persons on board must be placed in safety and all the ship's papers likely to be of value in determining the validity of the capture must be preserved.

While the rules adopted by the Conference represented a compromise between two conflicting views, they undoubtedly provided some safeguards against arbitrary destruction, and if they were strictly observed by belligerents the cases in which neutrals would be exposed to injury would probably be few. It is, of course, true that the Declaration has never been ratified in accordance with its own provisions, and is not therefore legally obligatory upon the belligerents in the present war. They have, nevertheless, put it into effect with certain modifications and additions, none of which affect substantially its rules in respect to destruction of neutral prizes, except that, as already stated, the German prize regulations expressly enumerate the contingencies which shall constitute danger to the captor or which might impede his operations, among which are inability to spare a prize crew, shortage of coal, proximity to the enemy's coasts, etc.

The right of a belligerent to destroy neutral prizes in the exceptional cases and subject to the conditions mentioned above being generally recognized, and provided for in the Declaration of London we may now inquire whether the practice during the present war has been in conformity with these rules. In most of the cases in which neutral ships have