CARTELS.

Cartel ships.

But cartel Ships are not allowed to abuse their privilege; the sacred character which is the cause of it must be religiously maintained, and their employment must be wholly unconnected with commercial or other objects. Therefore Cartel Ships have no right to trade or take in a cargo; and the doing so subjects, strictly speaking, the vessel, and always the cargo, to confiscation.

But it has been holden that a Cartel appointed in time of peace, but in contemplation of War, which, in accordance with the stipulations of the Cartel contract, took on board a cargo at an intermediate port after the breaking out of hostilities, had not forfeited her privileges of a Cartel thereby; and restitution of a ship and cargo was accordingly decreed, save as to some few articles subsequently taken on board, and as to which no proof of property was adduced.

A ship going to be employed as a Cartel Ship is not protected by mere intention on her way from one port to another of her own country, for the purpose of taking on herself the character when she arrives at the latter port. If such a necessity occurs, it is proper to apply to the Commissary of Prisoners in the enemy's country for a pass.

Lastly, it is to be remembered that persons put on board a Cartel Ship with their own consent by the Government of the enemy, to be carried to their own country, are bound to do no act of hostility. Therefore, a capture made by such persons of a vessel of their own country from the enemy, is not a recapture in contemplation of law; it gives them no title to salvage, and confers on the former owner no title to claim the vessel; and property so recovered has been decreed to be given up to the disposal of the Crown.

Phillimore, vol. III, pp. 182, 183.

Cartel ships.

The same interdiction of trade applies to ships of truce, or cartel ships, which are a species of navigation, intended for the recovery of the liberty of prisoners of war. Such a special and limited intercourse is dictated by policy and humanity, and it is indispensable that it be conducted with the most exact and exclusive attention to the original purpose, as being the only condition upon which the intercourse can be tolerated. All trade, therefore, by means of such vessels is unlawful, without the express consent of both the governments

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concerned. It is equally illegal for an ally of one of the belligerents. and who carries on the war conjointly, to have any commerce with the

enemy.

Kent, vol. I., p. 83; The Venus, 4 C. Rob. 55; The Carolina, 6 C. Rob. 336.

A cartel is an agreement between belligerents for the exchange or ransom of prisoners of war. The actual existence of a war is not essentially necessary to give effect to cartels, but it is sufficient if they are entered into prospectively and in expectation of approaching hostilities; for the occasions for them may just as naturally arise from a view of approaching events, and parties may contract to guard against the consequence of hostilities which they may foresee. Both belligerents are bound to faithfully observe such compacts, and a cartel party sent under a flag of truce to carry into execution the provisions of a cartel is equally under the protection of both. "Good faith and humanity," says Wheaton, "ought to preside over the execution of these compacts, which are designed to mitigate the evils of war, without defeating its legitimate purposes. By the modern usages of nations, commissaries are permitted to reside in the respective belligerent countries, to negotiate and carry into effect the arrangements necessary for this object. Breach of good faith in these transactions can be punished only by withholding from the party guilty of such violation the advantages stipulated by the cartel; or, in cases which may be supposed to warrant such a resort, by reprisals or vindictive retaliation." In the United States such compacts are not deemed treaties in the sense of the Constitution; a cartel for the exchange of prisoners, between the United States and Great Britain, in 1813, was ratified by the American Secretary of State (May 14).

Halleck, pp. 666, 667; Wheaton, pt. 4, ch. 2, sec. 3.

Cartel ships.

A cartel ship is a vessel commissioned for the exchange or ransom of prisoners of war, or to carry proposals from one belligerent to the other, under a flag of truce. Such commission and flag are considered to throw over the vessel, and the persons engaged in her navigation, the mantle of peace; she is, pro hoc vice, a neutral licensed vessel, and her crew are also neutrals; and so far as relates to the particular service in which she is employed, she is under the protection of both belligerents. But she can carry no cargo, and no ammunition or implements of war, except a single gun for firing signals. This is regarded as a species of navigation which, on every consideration of humanity and policy, should be conducted with the strictest regard to the original purpose, and to the rules which are built upon it, since, if this mode of intercourse be broken off, it will be followed by calamitous results to individuals of both belligerents. It is, therefore, said by

high authority, that cartel ships cannot be too narrowly watched; and that both parties should take care that the service should be conducted in such a manner as not to become a subject of jealousy and distrust between the two nations. The authority to commission a cartel ship is supposed to emanate from the supreme power of the State, but it may be issued by a subordinate officer, in the due execution of a public duty. When a cartel ship appears to have been employed in the public service, and for the purposes of humanity, it will be presumed that the commission under which she acts was issued by the sanction of the councils of the State, until renounced by the sovereignty from which it is supposed to emanate. Thus, a cartel, granted by the commander of the British forces, at Amboyna, to a Dutch vessel, was held by Sir William Scott to be valid for the protection of the vessel from capture and condemnation.

Halleck, p. 667; The Carolina, 6 C. Rob., 336; The Venus, 4 C. Rob., 355.

Cartel ships.

The rights, immunities, and duties of cartel ships have been matters of discussion and judicial decision in prize courts. Sir William Scott gave a very elaborate opinion on this subject, in the case of the Daifje. With respect to the character of the ships employed in such service, he says it is generally immaterial whether they are merchant ships or ships of war, but there may be extreme cases in which the nature of the ship might be material; "as, if a fire ship was to be sent on such service to Portsmouth, or Plymouth, though she had prisoners on board, she would undoubtedly be an unwelcome visitor to a naval arsenal, and her particular character might fairly justify a refusal to admit her." He was also of opinion that the cartel protected such ships, not only in trajectu, ad eundum et redeundum, but also in going from one port to another to be fitted up and to take prisoners on board, although the passage of ships from one port to another of an enemy is liable to suspicion. Moreover, that a vessel going to be employed as a cartel ship is not protected by mere intention, on her way, for the purpose of taking on herself that character when she arrives. When it is necessary to send to another port for vessels for such purpose, it is proper to apply to the enemy's commissary of prisoners for a pass or special safe-conduct. The principal question to be decided in such cases, is that of intention; if the vessel is actually commissioned and employed as a cartel ship. if she is fitted out and conducts herself, in every respect, as a cartel ship, she is protected as such; but if she is acting fraudulently, she is liable to condemnation. Imprudence and negligence do not constitute fraud.

Halleck, p. 668; The Daifjie, 3 C. Rob. 141.

There are certain compacts between nations which are concluded, not in virtue of any special authority, but in the exercise of a general implied power confided to certain public agents, as incidental to their official stations. Such are the official acts of generals and admirals. suspending or limiting the exercise of hostilities within the sphere of their respective military or naval commands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitulations for the surrender of a fortress, city, or province. These conventions do not, in general, require the ratification of the supreme power of the State, unless such a ratification be expressly reserved in the act itself.

Wheaton, p. 329.

Cartels for the mutual exchange of prisoners of war are regulated by special convention between the belligerent States, according to their respective interests and views of policy.

Wheaton, p. 430.

Cartels are a form of convention made in view of war or during its existence in order to regulate the mode in which such direct intercourse as may be permitted between the belligerent nations shall take place, or the degree and manner in which derogations from the extreme rights of hostility shall be carried out. They provide for postal and telegraphic communication, when such communication, is allowed to continue, for the mode of reception of bearers of flags of truce, for the treatment of the wounded and prisoners of war, for exchange and the formalities attendant on it, and for other like matters.

Hall, pp. 570, 571.

It was formerly the practice for the state to leave to each prisoner, at least during the war, the care of redeeming himself, and the captor had a lawful right to demand a ransom for the release of his prisoners. The present usage of civilized nations is, however, to exchange prisoners of war or to release them on their parole or word of honor not to serve against the captor again for a definite period, during the war, or till properly exchanged. An agreement between belligerents for the exchange (and formerly for the ransom) of prisoners of war is called a cartel, and a vessel commissioned for the exchange of prisoners of war or to carry proposals from one belligerent to the other under a flag of truce, is sometimes called a cartel ship.

As to the disability of an alien enemy to sue on a ransom bill, see Anthon vs. Fisher, 2 Douglas, 649.

Moore's Digest, vol. VII, p. 226.

The term "cartel" is most commonly employed to denote an arrangement entered into between the belligerents with reference to

the exchange, or treatment, of prisoners. This term is, however, of general application, and may be used with reference to agreements for other purposes.

Holland, p. 51.

Definition and purpose of cartels.

Cartels are conventions between belligerents concluded for the purpose of permitting certain kinds of nonhostile intercourse between one another such as would otherwise be prevented by the condition of war. Cartels may be concluded during peace in anticipation of war, or during the time of war, and they may provide for numerous purposes. Thus, communication by post, telegraph, telephone, and railway, which would otherwise not take place, can be arranged by cartels, as can also the exchange of prisoners, or a certain treatment of wounded, and the like. Thus, further, intercourse between each other's subjects through trade can, either with or without limits, be agreed upon by belligerents. All rights and duties originating from cartels must be complied with in the same manner and good faith as rights and duties arising from other treaties. Oppenheim, vol. II, pp. 282, 283.

Cartel ships.

Cartel ships are vessels of belligerents which are commissioned for the carriage by sea of exchanged prisoners from the enemy country to their own country, or for the carriage of official communications to and from the enemy. Custom has sanctioned the following rules regarding these cartel ships for the purpose of securing protection for them on the one hand, and, on the other, their exclusive employment as a means for the exchange of prisoners: Cartel ships must not do any trade or carry any cargo or despatches; they are especially not allowed to carry ammunition or instruments of war, except one gun for firing signals. They have to be furnished with a document from an official belonging to the home State of the prisoners and stationed in the country of the enemy declaring that they are commissioned as cartel ships. They are under the protection of both belligerents and may neither be seized nor appropriated. They enjoy this protection not only when actually carrying exchanged prisoners or official communications, but also on their way home after such carriage and on their way to fetch prisoners or official communications. They lose the protection at once, and may consequently be seized and eventually be appropriated, in case they do not comply, either with the general rules regarding cartel ships, or with the special conditions imposed upon them.

Oppenheim, vol. II, pp. 283, 284.