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In instructions issued to war vessels upon the outbreak of wars,55 and in general naval regulations and instructions,57 methods of conducting visit and search and other duties of naval vessels toward neutral persons, required by treaty and international law, have been specifically enjoined.

The courts have held that the making of seizures without probable cause or proper authorization by law even when done under specific order of the president, as commander in chief of the navy, renders the captor liable to damages.58 A seizure in violation of international law, however, when specifically authorized by municipal law, is permissible so far as the captor is concerned. The only recourse in such cases is through diplomatic protest.

CARE AND TREATMENT OF PRIZES

A prize having been seized, five courses are open to the captor, (1) bringing in to home port for adjudication, (2) destruction, (3) ransom, (4) sequestration in a neutral port or sale in neutral territory, (5) release. The treatment which a neutral state has a right to expect under international law and the measures which the United States has taken to prevent its naval forces infringing those rights will now be considered.

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(1) A number of early treaties required the preservation of prizes intact until adjudication by a prize court, and the hospitable treatment of the officers and crew.

The Declaration of London1 requires prizes to be brought to port for adjudication and forbids the destruction of either vessel

55 Naval Instructions, Apr. 3, 1776, (Jour. Cong., Ford, ed., 4;253); Apr. 7, 1781, (Jour. Cong., Ford, ed., 19;361); Aug. 28, 1812, (2 Wheat. App. 80, Moore's Digest, 7;544); 1813, Special Instructions, (Am. St. Pap., Nav. Aff., 1;373, Moore's Digest, 7;516); May 14, 1846, (Br. and For. St. Pap., 34;1139); Dec. 24, 1846, (Moore's Digest, 7;790); May 14, 1862, (Upton, op. cit., p. 490); Aug. 18, 1862, (Rec. Union and Conf. Navies, Ser. 1, 1;417, Moore's Digest, 7;700); June 20, 1898, (For. Rel., 1898, p. 780).

56 Navy Regulations, 1913, sec. 1634.

57 Stockton's Naval War Code, 1900-1904, art. 30, 32, 33.

58 Little vs. Barreme, 2 Cranch 170, (1804); The Thompson, 3 Wall. 155; The Dashing Wave, 5 Wall. 170; see also Moore's Digest, 7;593-598. 59 La Maissonaire vs. Keating, 2 Gall. 334. See Upton, op. cit., p. 189. 60 As an example see treaty with France, 1800-1809, art. 20, 21, Malloy, P. 503.

61 Declaration of London, 1909, art. 48-54.

or cargo, unless the prize would be liable to condemnation and an attempt to bring it in for adjudication "would involve danger to the ship of war or to the success of the operation in which she is at the time engaged." If the prize is destroyed, persons on board and the ship's papers must be saved and the captor is declared liable to pay compensation if he cannot prove the existence of circumstances justifying destruction, irrespective of the validity of the capture. A decree of restitution of the vessel or part of its cargo in such a case involves compensation.

By the articles for the government of the navy,62 punishment by death or other sentence of court martial is authorized to anyone destroying or injuring prizes or maltreating persons on board of them, and in the instructions for the navy issued on the outbreak of war, as well as in permanent instructions, rules for the care of prizes and their crew have generally been specified and their prompt bringing in required.63

The courts have declared that it is the captor's duty to bring prizes in for adjudication as soon as possible and to deliver papers and necessary witnesses to the court.65 Failure to perform these duties will result in damages to the neutral owner but it is only for "gross misconduct without excuse or palliation" that they may be had. "Much indulgence is extended to errors and even improprieties of captors when no malignity or cruelty is justly chargeable."'

(2) Special instructions to privateers and warships in the war of 181267 particularly advised destruction of prizes and this

62 Resolution, Nov. 25, 1775, Journ. Cong., Ford, ed., 3;373; Act, Apr. 23, 1800, 2 stat. 52; July 17, 1862, 12 stat. 600; Rev. Stat. sec. 1624, art. 6, II, 12. See other statutory provisions relating to the administration of prizes, Act, March 3, 1800, 1 stat. 16; June 26, 1812, 2 stat. 760; June 27, 1813, 2 stat. 793; March 25, 1862, 12 stat. 375; March 3, 1863, 12 stat. 759; June 30, 1864, 13 stat. 306; Rev. stat. sec. 4615-4617.

63 Stockton's Naval War Code, 1900-1904, sec. 46, 47. Supra, note 57. 64 The Lively, 1 Gall. 318; The Nassau, 4 Wall. 634; Moore's Digest, 7;630.

65 The Diana, 2 Gall. 95; The Bothnea and the Jarnstoff, 2 Gall, 88. 66 See Upton, op. cit. p. 200, citing, The Lively and Cargo, 1 Gall. 29; The Anne, 3 Wheat. 435; The George, 1 Mason, 24. On liability of captor for damages, see also, Slocum vs. Mayberry, 2 Wheat. 1; The Apollon, 9 Wheat. 362; The Neustra Senora de Regla, 108 U. S. 92, 103, (1882), and Moore's Digest, 7;630. Declaration of London, 1909, art. 52, 53.

67 Special Instructions, 1813, Am. St. Pap., Navy Aff., 1;373; Moore's Digest, 7;516.

action was permitted by the instructions to blockading vessels in 1898,68 and in Stockton's Naval War Code.69 But in the last two cases bringing in was required unless there were "controlling reasons" for not doing so, such as "unseaworthiness, the existence of infectious diseases, lack of a prize crew," or imminent danger of recapture.

These provisions of statutes and executive orders indicate that the destruction of prizes is permitted under certain circumstances, but the practice has been discouraged except during the war of 1812. In discussions of the subject in the Naval War College in 1905 and 1907 the release of neutral prizes which could not be brought into port was recommended.70

(3) Ransom or the release of the prize by the captor on signature of a ransom bill generally accompanied by a hostage to insure payment is permitted by law in the United States. The 68 Instructions to Blockading Vessels and Cruisers, June 20, 1898, For. Rel. 1898, p. 780, Moore's Digest, 7;518.

69 Stockton's Naval War Code, art. 50; Moore's Digest, 7;526. 70Naval War College, International Law Discussions, 1905, pp. 62-76; 1907, p. 75. In these discussions a distinction is drawn between the destruction of neutral and enemy prizes, the former being forbidden. See also T. E. Holland, Neutral Duties in Maritime War, Proceedings British Academy, 2;12, quoted Moore's Digest, 7;521. International opinion generally condemns the destruction of neutral prizes and British courts have upheld this view. See The Zee Star, 4 Rob. 71; The Felicity, 2 Dods. 283; The Leucade, Spinks 221; W. E. Hall, International Law, 4th ed., p. 763; T. J. Lawrence, International Law, p. 405; L. Oppenheim, International Law, 2;469. Russian prize regulations of March 27, 1895, and Sept. 20, 1900, (For. Rel., 1904, pp. 735, 747, 752, Moore's Digest, 7;519) permitted destruction. A notable controversy arose from the destruction of the British vessel Knight Commander under these regulations in the Russo-Japanese War. The Russian prize court upheld this act. (Hurst and Bray, Russian and Japanese Prize Cases, 2 vol., London, 1912, 1;54; S. Takahashi, International Law applied to the Russo-Japanese War, N. Y. 1908, p. 310; Moore's Digest, 7;521). Destruction was permitted in exceptional cases by the Japanese Prize Regulations of March 15, 1904, art. 91 (Takahashi, op. cit. p. 788) and by the French Naval Instructions of July 25, 1870, (Snow cases, p. 577), and in certain cases of pressing necessity in the rules adopted by the Institute de Droit International. (Annuair de l'institut de droit international, 6;213, 221, 1882-1883, Moore's Digest, 7;526). The recent (1915) case of the William P. Frye, an American vessel destroyed by a German cruiser, was settled under the Prussian treaty of 1799, renewed in 1828, (art. 13, Malloy, p. 1490) which requires compensation to be made for all contraband goods destroyed.

prize money act of 186271 provided for the division of ransom money in the same manner as prize money, and in the case of Goodrich vs. Gordon72 in the supreme court of New York, ransom bills were held to be good contracts enforceable in court.

(4) The sequestration and sale of prizes in neutral ports are practices which the United States as a neutral permitted France in the wars following the French Revolution.73 Since that time the United States has opposed such practices, although according to treaties and international law it has permitted the temporary asylum of belligerent warships and their prizes.

In the Hague conventions of 19077 special provision was made for the sequestration of prizes in neutral ports pending adjudication in the belligerent's prize court, apparently with the hope of somewhat limiting the necessity of destroying prizes at sea. The United States did not ratify this section, thus maintaining its opposition to the principle of sequestration of prizes, which the American delegation spoke of as an "ancient abuse.""" The Naval War College in a discussion of the subject in 190878 recommended against sequestration. Nevertheless the United States has resorted to sequestration in wars in which she has been a belligerent, and the courts have not hesitated to uphold their jurisdiction over prizes in neutral ports," as well as over prizes

71 Act, July 17, 1862, 12 stat. 600.

72Goodrich vs. Gordon, 15 Johns, 6, (1818) N. Y.

73 Moore's Digest, 7;935-938.

74Treaties with France, 1778-1798, art. 17, Malloy, p. 474; 1800-1809, art. 24, p. 504; Great Britain, 1794-1807, art. 25, p. 604; Prussia, 17851796, art. 19, p. 1483; 1799-1810, revived 1828, p. 1493; Sweden, 1783-1799, revived 1816, 1827, art. 17, 19, p. 1732; Tripoli, 1805, art. 17, p. 1792; Algiers, 1795-1815, art. 10, p. 3; 1815-1830, art. 18, p. 8; Netherlands, 1782-1795, art. 5, p. 1245.

75 Att. Gen. Cushing, 7 op. 122, (1855), Moore's Digest, 7:982-985. This applies at least to war vessels and their prizes. The privilege was often denied to privateers. See Cushing, 7 op. 122, (1855), Moore's Digest, 7;546. For opinion during the Revolutionary war see Allen, Naval History of the American Revolution, 1;255-257, 274; 2;537-538.

76 Hague Conventions, 1907, xiii, art. 23.

77 Report of United States Delegation, see Naval War College, International Law Situations, 1908, p. 76.

78 Naval War College, International Law Situations, 1908, pp. 58-78. 79 Jecker vs. Montgomery, 13 How. 512; The Arabella and The Madeira, 2 Gall. 368; Hudson vs. Guestier, 4 Cranch 293; Naval War College, International Law Situations. 1908, pp. 60-62.

which had been sold or destroyed.81 The sequestration of prizes in neutral ports seems to be permitted to naval vessels by law of the United States, although not looked upon with favor.

(5) Release of neutral prizes in preference to destruction was recommended by the naval war college in a discussion of 1907,82 but this course would probably not be pursued except as a last resort.

The permission to accept ransom and sequestrate vessels in neutral ports, together with the strict injunction to bring prizes in for adjudication if possible, tends to prevent injury to neutral owners. The permission to destroy prizes, however, would have an opposite effect. The criminal penalties provided for illegal treatment of prizes as well as the rule giving action for damages in such cases are also measures directed toward the duties of prevention encumbent upon the country.

ADJUDICATION OF PRIZES

One of the most important measures taken by the United States to prevent infractions of neutral rights by its naval forces, is the establishment of prize courts with jurisdiction over all seizures by naval vessels. This means of prevention is regarded as so essential that it has become a rule of international law. The establishment of prize courts and the adjudication of prizes are duties which international law requires of belligerent states.

(1) In a large number of its treaties83 the United States has reciprocally agreed as a belligerent to adjudicate prizes seized from the other contracting party, when neutral, in its prize court,

80 Williams vs. Amroyd, 7 Cranch 423.

81 The Edward Barnard, Blatch. 122; The Schooner Zavalla, Blatch. 173. See Naval War Col., Int. Law Sit., 1908, p. 63.

82 Naval War College, International Law Discussions, 1907, p. 75. Release, where the prize can not be brought in for adjudication, is recommended by Lawrence, op. cit., p. 405; Hall, op. cit., p. 763. British courts have favored this rule in dicta, see The Zee Star, 4 Rob. 71; The Felicity, 2 Dods. 381; The Leucade, Spinks, 221, Bentwich 157, Moore's Digest, 7;522. Release of neutral prizes in certain cases was prescribed in the Japanese prize law of 1894, (art. 20, 22), but destruction was permitted in similar cases by the law of 1904, art. 91. See S. Takahashi, International Law applied to the Russo-Japanese War, New York, 1908, pp. 333-788, Moore's Digest, 7;525.

88 Adjudication of prizes has been required in twenty treaties with fourteen countries, of which those with Bolivia (1858, art. 24, Malloy, p. 121) and Colombia (1846, art. 24, p. 309) are in force.

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