private individual from the fortunes of war seems difficult when their countries are engaged in hostilities. This is especially and very closely the case in land warfare.1 156. Exemptions and Restrictions in Capture in Maritime Warfare. Convention No. VII of the second Hague conference in regard to the treatment of enemy merchant vessels at the outbreak of hostilities, so far as days of grace are concerned, was not signed by the United States on the ground that it was an unsatisfactory compromise. Our own practice in the matters treated in this convention is much more liberal and, as a rule, we may be considered to be in accord with the principles stated that, at the outbreak of war, vessels should be allowed to depart at once or after a sufficient term of grace and to proceed without molestation to their destination. "During the Spanish-American War we allowed by proclamation, issued April 26, 1898, Spanish merchantmen until May 21 for loading their cargoes and departing, and such cargoes were not to be captured on their voyage if it appeared from their papers that the cargoes were taken on board within the time allowed. Exception was made of vessels having on board military or naval officers of the enemy, contraband of war, or despatches to or from the Spanish Government. Generally the period of days of grace allowed for a stay or departure from port by other countries is very short." In some cases it is refused unless granted reciprocally. "Vessels employed exclusively in coast fisheries or small boats employed in local trade are exempt from capture, together with their appliances, rigging, tackle, and cargo. This exemption ceases as soon as they take any part whatever in hostilities." This article (3 of Convention XII of the second Hague conference) is binding upon the United States and was in accordance with the decision of the United States Supreme Court in the Spanish-American War. In the last clause of 1 Higgins, “War and the Private Citizen,” pp. 66–70. 2 Stockton, "Manual of Int. Law for Naval Officers," p. 167. this article, "the contracting powers bind themselves not to take advantage of the harmless character of the said vessels in order to use them for military purposes while preserving their peaceful character. "The postal correspondence of neutrals or belligerents, whether official or private in character, which may be found on board a neutral or enemy ship at sea is inviolable. If the ship is detained, the correspondence is forwarded by the captors with the least possible delay. "The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for or proceeding from the blockaded port. "The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and customs of naval war respecting neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible." 1 Articles 5, 6, 7, and 8 of the same convention state that when an enemy merchant ship is captured by a belligerent such of its crew as are nationals of a neutral state are not made prisoners of war. The same rule applies in the case of the captain and officers, likewise nationals of a neutral state, if they give a formal promise in writing not to serve on an enemy ship while the war lasts. The captain, officers, and members of the crew, when nationals of the enemy state, are not made prisoners of war, provided that they undertake on the faith of a formal written promise not to engage, while hostilities last, in any service connected with the operations of the war. The names of the persons retaining their liberty under the conditions laid down above are notified by the belligerent captor to the other belligerent. The latter is forbidden know 'Higgins, "Hague Peace Conferences," p. 396. ingly to employ the said persons. The provisions of these articles do not apply to ships taking part in hostilities.1 Hospital ships, as mentioned, if applied to military uses are not allowed exemption by the Geneva convention. A case of a violation of the restriction from hostile purposes and the consequent capture of the hospital ship was that of the Orel in the Russo-Japanese War. "The Aryol or Orel was a hospital ship of the Russian Red Cross Society. She was fitted out and employed in accordance with the provisions of The Hague convention of 1899 for the adaptation to maritime warfare of the principles of the Geneva convention of 1864. She was attached to the second Pacific Russian squadron and joined it at Tangier. She was captured by the Japanese man-of-war Sadu Maru during the naval engagement near Okino Shima, and taken into Miura Bay for condemnation. The case came before the prize-court of Sasebo, and the result is reported in the Japanese official Gazette of August 1, 1905. "The Aryol was condemned as good prize on the following grounds: (1) She had communicated the orders of the commander-in-chief of the Russian Pacific second squadron to other vessels during her eastward voyage with this squadron; (2) she was carrying, by order of the commander-in-chief of the squadron, the master and three members of the crew of the British steamship Oldhamia, which had been captured by the Oleg, a war-ship of that squadron, with a view of taking them to Vladivostok, although they were in good health; (3) she had been instructed to purchase in Capetown, or its neighborhood, eleven thousand feet of conducting wire of good insulation; (4) when the Russian squadron was proceeding toward Tsushima Channel, she and another hospital ship, the Kostroma, navigated at the head of the squadron in the position usually occupied by reconnoitring ships." 2 1 Higgins, "Hague Conferences," pp. 397, 398. 2 Higgins, "War and the Private Citizen," pp. 74, 75. The condemnation of this vessel, the facts having been proven, was fully justified upon all of the points named. If for humanitarian or other reasons use is made of a hospital ship as a refuge for the passengers or crews of ships sunk by orders of a commander of a naval force, the hospital ship is liable to capture and condemnation as a lawful prize for violation of the rules of the Geneva convention. In regard to the power given in Article XII of the Geneva convention, the purport of which was quoted in an earlier paragraph, it can be said to justify the contention of the United States in the matter of the Deerhound, which vessel, a yacht under the English flag, rescued Captain Semmes of the Alabama and declined to surrender him to the Kearsarge. Not only was he landed upon neutral soil but he took part in hostilities at a later date. The English delegates, while accepting this article at the second Hague conference, declared their understanding that it applied only to the case of combatants rescued during or after a naval engagement in which they have taken part.1 157. Enemy Character in Maritime Warfare. In the declaration of Paris it is established that the neutral flag covers enemy's goods with the exception of contraband of war and that neutral goods, with the same exception, are not liable to capture under the flag of an enemy. Besides this the following general rules were incorporated in the declaration of London for the determination of the character of a merchant vessel with its consequent liability to cap ture: "Subject to the provisions respecting the transfer of flag, the neutral or enemy character of a vessel is determined by the flag which she has a right to fly. "The neutral or enemy character of goods found on board an enemy's vessel is determined by the neutral or enemy character of the owner. "If the neutral character of goods found on board an enemy vessel is not proven they are presumed to be enemy goods. 'Higgins, "Hague Conferences," p. 389. "The enemy character of goods on board an enemy vessel continues until they reach their destination, notwithstanding an intervening transfer after the opening of hostilities while the goods are being forwarded. "If, however, prior to the capture, a former neutral owner exercises, on the bankruptcy of a present enemy owner, a legal right to recover the goods, they regain their neutral character.”1 The conditions referred to as the transfer of an enemy vessel to a neutral flag are found in the Articles 55 and 56 of the declaration of London, in Appendix IV of this book. As to the tests of enemy character so far as the merchantman is concerned, that, on account of the divergent views, has been left open in the declaration of London. The AngloAmerican school makes the enemy character in warfare at sea depend upon the commercial domicile of the owner, while the Franco-German systems apply the test of the individual nationality of the owner. 158. The Procedure of the Capture and Sending in of a Merchantman. Before the capture of a merchant vessel of an enemy it is necessary to determine its nationality. If this is shown to be that of an enemy by the display of the colors, she is at once taken possession of upon her surrender after being brought to by signal or a summoning gun. If neither should be sufficient to cause the vessel to lie to or stop, a projectile is fired across her bows, and in case of continued flight or of resistance force can be used to compel her to stop or surrender. In case no colors are shown, or any other colors than those of the enemy, the intercepting vessel proceeds to exercise the war right of visit and search. If the papers of the vessel show her to be an enemy, or carrying contraband of war, or engaged in the violation of a blockade or in unneutral service, the vessel should be seized; otherwise she should be released unless circumstances make necessary a further search and con1 See Appendix IV, Declaration of London, Arts. 57, 58, 59, and 60. |