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fortunately is less liberal than recent practice. Article 3 is as follows:
Enemy merchant ships which left their last port of departure before the commencement of the war and are encountered on the high seas while still ignorant of the outbreak of hostilities can not be confiscated. They are only liable to detention on the understanding that they shall be restored after the war without compensation, or to be requisitioned, or even destroyed, on payment of compensation, but in such case provision must be made for the safety of the persons on board, as well as the security of the ship’s papers.
After touching at a port in their own country, or at a neutral port, these ships are subject to the laws and customs of maritime war.
The seeming exemption is rather illusory, for the exemption from capture is based upon the fact that at the time of seizure the enemy merchant ships were still ignorant of the outbreak of hostilities. If they had been informed of the existence of hostilities they would seem to be liable to capture, for the merchant vessels of to-day have discarded canvas for steam, and it rarely happens that a vessel is provided on the outbound voyage with sufficient coal for the return. It would seem, therefore, that the vessel is exposed to capture because it could not safely continue its voyage to the belligerent port, and, if it seeks to return to the home port, the vessel is liable to capture, with little chance of escape by reason of the lack of means to continue its voyage. If the merchant vessel is ignorant of the outbreak of hostilities it may not be captured, but it may be detained subject to restoration at the end of the war without compensation. The value of the vessel may be seriously depreciated in case of a long war. If requisitioned, it is unlikely that the transaction will be profitable to the original owner, and if destroyed it is improbable that the compensation will at all be adequate. The article in question, therefore, can not be considered an advance; it is a distinct limitation of customary rights. Article 4 of the convention is as follows:
Enemy cargo on board the vessels referred to in articles 1 and 2 is likewise liable to be detained and restored after the termination of the war without payment of compensation, or to be requisitioned on payment of compensation, with or without the ship.
The same rule applies in the case of cargo on board the vessels referred to in article 3.
The Sublime Porte does not consider it just that, agreeable to ancient usage, an embargo should be laid upon Russian merchant vessels. Accordingly, they will be warned to proceed within a period to be fixed hereafter to the Black Sea or to the Mediterranean, as they choose.
The Christian governments did not lag behind the followers of Mahomet, for the Russian Government granted full liberty to Turkish vessels in its ports to return to their destination till the 10th (22d) of November. For example, on March 27, 1854, France issued the following declaration:
ARTICLE 1. Six weeks from the present date are granted to Russian ships of commerce to quit the ports of France. Those Russian ships which are not actually in our ports, or which may have left the ports of Russia previously to the declaration of war, may enter into French ports and remain there for the completion of their cargoes until the 9th of May, inclusive.
Great Britain issued a similar declaration on March 29, 1854. Further indulgences were afterward allowed to Russian vessels which had sailed for English and French ports prior to May 15, 1854, and Russia on its part allowed English and French vessels six weeks from April 25, 1854, to load their cargoes and sail from Russian ports in the Black Sea, the Sea of Azof, and the Baltic, and six weeks from the opening of navigation to leave the ports of the White Sea.?
We thus see that the right of capture and confiscation was recognized in the Crimean war, but following the initiative of the Turkish Government, the great maritime States of Great Britain, France, and Russia, while recognizing the right, limited it in such a way as to free from capture and confiscation enemy merchant ships found in their respective ports and to give them a certain time within which to unload their cargo and proceed to their port of destination. Capture is always a harsh measure, but it seems peculiarly harsh to capture and confiscate merchant vessels whose owners did not or could not know of the outbreak of war and who in no way either directly or remotely influenced or were concerned in the outbreak of war.
An enemy vessel found upon the high seas or in an enemy
2 Halleck, Inter. Law (3d ed., by Baker), Vol. I, 552, 533, note.
port after such warning or after the various dates prescribed might be treated as having voluntarily assumed the risk of capture, and therefore properly exposed to it. The precedent of 1854 was followed in the Prussian-Austrian war of 1866. For example, the Prussian ministerial declaration, June 21, 1866, provided :
Austrian merchant vessels which are now in Prussian ports, or whose masters, unaware of the breaking out of the war, may enter Prussian ports, shall, on condition of reciprocity, have six weeks reckoned from the day of their entry into port to land their cargo and to go away with a new cargo, contraband of war excepted. On the expiration of this term they must leave port. Austrian merchant vessels whose masters are aware of the breaking out of the war are not permitted to enter a Prussian port.
In the great war of 1870 France granted a leave of thirty days, as appears from the following:
Merchant vessels belonging to the enemy which were actually in the French ports, or which entered the ports in ignorance of the war, were allowed a delay of thirty days for leaving, and safe-conducts were given them to return to their port of despatch or of destination. Vessels which took in cargoes for France, or on French account, in enemies' or neutral ports before the declaration of war, were not subject to capture, but were allowed to disembark their freights in the French ports, and afterwards received safe-conducts to return to their ports of despatch.
These European precedents were followed by the United States in the Spanish-American war of 1898. In the President's proclamation, dated April 25, 1898, for the government of the officers of the United States during the war with Spain the fourth rule read as follows:
4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, That nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any despatch of or to the Spanish Government.
3 Moore, Inter. Law Digest, sec. 1196. • Halleck, Inter. Law (3d ed., by Baker), Vol. I, 532, note.
The Spanish Government issued a royal decree, dated April 23, 1898, which permitted, five days from the date of publication, the departure of American ships from Spanish ports. It was not so liberal as the American proclamation, for the Spanish decree did not in terms prohibit the capture of the American merchantmen after their departure nor did it provide for the entrance and discharge of American ships sailing for Spanish ports before the war. captures were made by Spain, the exact nature and extent of the immunity were not tested before a prize court. The President's proclamation, however, was passed upon by the courts of the United States, and the interpretation thereof was liberal, in accordance with its spirit. The leading case on the subject is the Buena Ventura (1899, 175 U. S., 384). The vessel in question was a Spanish merchant ship captured on the morning of April 22, 1898, soine eight or nine miles off the Florida coast. At the time of capture the vessel was on a voyage from Ship Island, Mississippi, to Rotterdam, by way of Norfolk, Va., with a cargo of lumber. She arrived at Ship Island March 31, 1898, and sailed for Rotterdam April 19, with a permit, obtained in accordance with the laws of the United States, to call at Norfolk for supply of bunker coal. When captured on April 22 she made no resistance, had on board no military or naval officer, and carried no arms or munitions of war. The question at issue was therefore whether the vessel could be brought within the exemption of the fourth rule of the proclamation of 1898 as to
Spanish merchant vessels, in any ports or places within the United States.” In delivering the opinion of the Supreme Court, Mr. Justice Peckham observed, to quote the language of Professor Moore that the vessel in question, as a merchant vessel of the enemy carrying on an innocent commercial enterprise at or just prior to the time when hostilities began, belonged to a class which the United States had always desired to treat with great liberality, and which civilized nations had in their later practice in fact so treated. The President's proclamation
5 Digest of Inter. Law, sec. 1196.
should therefore receive the most liberal and extensive interpretation of which it was capable, and where two or more interpretations were possible the one most favorable to the belligerent in favor of whom the proclamation was issued. The provision that “Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing” might, said the learned justice, be held to include (1) only vessels in port on the day when the proclamation was issued, namely, April 26, or (2) those in port on April 21, the day on which war was declared by Congress to have begun, or (3) not only those then in port, but also any that had sailed therefrom on or before May 21, whether before or after the commencement of the war or the issuing of the proclamation. The court adopted the last interpretation. While the proclamation did not in so many words include vessels which had sailed from the United States before the commencement of the war, such vessels were, said Mr. Justice Peckham, clearly within its “intention,” under the liberal construction which the court felt bound to give it. In view of the fact, however, that at the time of the capture the proclamation of April 25, without which the vessel would have been liable to condemnation, had not been issued restitution was awarded without damages or costs.
The recent Russo-Japanese war likewise followed the enlightened practice dating from the Crimean war. For example, the Imperial Japanese ordinance of February 9, 1904, provided that
ARTICLE 1. Russian merchant ships which happen to be moored in any Japanese port at the time of the issue of the present rules may discharge or load their cargo and leave the country not later than February 16. ART. 2.
Russian merchant ships which have left Japan in accordance with the foregoing article and which are provided with a special certificate from the Japanese authorities shall not be captured if they can prove that they are steaming back direct to the nearest Russian port, or a leased port, or to their original destination; this measure shall, however, not apply in case such Russian merchant ships have once touched at a Russian port or a leased port.
And the Imperial Russian order of February 14, 1904, provided
Japanese trading vessels which were in Russian ports or havens at the time of the declaration of the war are authorized to remain in such ports before putting out to sea with goods which do not constitute articles of contraband during the delay required in proportion to the cargo of the vessel
, but which in any case must not exceed forty-eight hours from the time of the publication of the present declaration by the local authorities.