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CONTENTS

SUPPLEMENT No supplement appears with this number in view of the

double number appearing with the issue of January, 1908.

STATUS OF ENEMY MERCHANT SHIPS

When no distinction was made in theory and practice between the status of private property of the enemy upon land and upon sea it necessarily followed that such property was liable to seizure and confiscation wherever found. If upon land it would naturally fall prey to an invading army and be appropriated to a public use or claimed as the booty of the commander or camp follower. If the private property of the enemy were within the jurisdiction or control of the other belligerent it could easily be confiscated by actual seizure or legislative enactment. The gradual immunity extended to private property of the enemy upon land, reserving always the right to subject it to requisition or to contribution, creates a distinction between the rights of capture and confiscation unless the principle of immunity be equally extended to unoffending private property of the enemy upon the high seas. As the immunity in the latter case, however acceptable in theory, has not been recognized in practice it follows that, whether logical or illogical, the distinction exists and must be borne in mind in discussing the status of the enemy and enemy property.

It may be stated that international law recognizes as a general principle that private property of the enemy upon land is, within certain limitations, not necessary for the present discussion, exempt from capture and confiscation. It is equally true that private property of the enemy upon the high seas is subject to capture, and the determination of the situation of the property determines at once its liability to or its exemption from capture. An enemy merchant ship is therefore liable to capture if found within the zone of naval operations, unless special rules and regulations exempt it from the treatment recognized and permitted by international law. The situation of the merchant vessel would seem in theory to be unimportant be cause the right of capture is recognized, but as a matter of fact custom, which is the very life of the law, treats differently, property situated in an enemy port at the outbreak of hostilities and private property of the enemy upon the high seas. Therefore, it is advisable, in discussing the general subject, to consider, first, the status of enemy merchant vessels found in port upon the breaking out of hostilities, and, second, to discuss the status of enemy merchant ressels found upon the high seas upon the breaking out of war.

If an enemy merchant vessel moored to the wharf or found within the territorial waters of the other belligerent were regarded not only within the jurisdiction of the belligerent but as thoroughly subject to his jurisdiction as other private property of the enemy found upon the land, there could be in theory no rational distinction between the property and the treatment to be accorded to it. Merchant ships of the enemy are not, however, assimilated to private property upon land, but the tendency of custom is to give to them greater rights and privileges than other property found elsewhere upon the outbreak of hostilities. In former times enemy merchant vessels found in the harbor or within the territorial waters were subject to capture, and when hostilities seemed imminent an embargo was placed upon such property so that departure would be illegal and would subject it to seizure or confiscation. The result would be that upon the outbreak of war the property would be seized and passed before a court as legitimate prize. The older law is briefly stated in the case of Lindo v. Rodney (1781, Douglas, 615), in which Lord Mansfield said:

Ships not knowing of hostilities come in by mistake; upon the declaration of war or hostilities, all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made.

The policy and reasoning by which it was sought to support seizure and confiscation are set forth in the case of the Boedes Lust (1803, 5 C. Robinson, 245), tried and condemned before the great Lord Stowell, then Sir William Scott. A Dutch ship on a voyage from Demerara to Batavia, embargoed at the Cape of Good Hope by a British squadron before the actual declaration of war against Holland in 1803, was afterwards condemned as enerny's property. In passing judgment Lord Stowell said:

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