that she cleared from Havana April 22, a day after the war began; that she had then no cargo for any port of the United States, but only for an enemy port, namely, Santiago and Cienfuegos. It could not therefore be said that she had left a foreign port in ignorance of the "perilous condition of affairs;" that it must be assumed that she either knew of hostilities or had been advised that hostilities were imminent. She was not bringing a cargo to the United States for the increase of its resources and the convenience of its citizens, but she was an enemy vessel trading with an enemy port. The Supreme Court therefore affirmed the condemnation of the District Court and held squarely that the contract to proceed ultimately to a port of the United States did not bring the vessel within the exemption of the fifth rule. While the decision of the Supreme Court is technically correct, it would seem that it was illiberal both in its interpretation and application of the exemption meant to be confererd by the fifth rule, as was pointed out by Mr. Justice White in a strong dissenting opinion, in which Justices Brewer, Shiras, and Peckham concurred. While it is true that a statute in derogation of the common law should be strictly construed, this principle clearly should not apply to an exception in the common law of nations made in the interest of innocent enemy subjects engaged in innocent

commerce.

In the recent Russo-Japanese war an indemnity of a like nature was extended by article 3 of the Imperial Japanese ordinance of February 9, 1904, the exact text of which is as follows:

Russian steamers which may have left for a Japanese port before February 16 may enter our ports, discharge their cargoes at once, and leave the country. The Russian steamers coming under the above category shall be treated in accordance with article 2 [previously quoted].

It will be seen, therefore, that recent enlightened practice permits enemy merchant ships which have left their last port of departure before the commencement of the war, or within a certain fixed period, to continue their journey unmolested to the port or place within the territory of the other belligerent, to unload their cargoes and to return to the home port without danger of capture during the voyage. The convention concerning the status of enemy merchant ships un

fortunately is less liberal than recent practice. follows:

Article 3 is as

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 provisions depending upon articles 1 and 3, already quoted, would seem to require no special explanation or comment.

The convention as a whole was a compromise between those who believed in the existence of a right and those who refused to recognize the legal validity of the custom which has grown up in recent years. As in most compromises the result is unsatisfactory. The convention can not be called progressive, for it questions a custom which seems generally established and its adoption would seem to sanction less liberal and enlightened practice. The United States delegation therefore refused to sign the convention and its acceptance has not been recommended by the Department of State.

JAMES BROWN SCOTT.

CONVERSION OF MERCHANT SHIPS INTO WAR SHIPS

The seventh of the Hague conventions bears the title, "Convention relative à la Transformation des Navires de Commerce en Bâtiments de Guerre." The convention really relates to vessels which have already been converted into war ships rather than to their conversion. The articles bearing on the subject are as follows:

ARTICLE 1.

A merchant ship converted into a war ship can not have the rights and duties accruing to such vessels unless it is placed under the direct authority, immediate control, and responsibility of the power whose flag it flies.

ARTICLE 2.

Merchant ships converted into war ships must bear the external marks which distinguish the war ships of their nationality.

ARTICLE 3.

The commander must be in the service of the state and duly commissioned by the competent authorities. His name must figure on the list of the officers of the fighting fleet.

ARTICLE 4.

The crew must be subject to military discipline.

ARTICLE 5.

Every merchant ship converted into a war ship must observe in its operations the laws and customs of war.

ARTICLE 6.

A belligerent who converts a merchant ship into a war ship must, as soon as possible, announce such conversion in the list of war ships.

ARTICLE 7.

The provisions of the present convention do not apply except between contracting powers, and then only if all the belligerents are parties to the convention.

These articles provide that war status will be conceded to merchant vessels only when under state authority, bearing the flag and distinguishing marks of belligerent nationality, subject to the command of a duly commissioned officer, with crew under military discipline, and observing the rules of war.

These articles take the converted merchant vessel out of the category of privateers and thus respect the first clause of the Declaration of Paris of 1856 by which "privateering is and remains abolished." The converted merchant vessels become a part of the navy.

This had already been provided for in the Regulations for the Naval Auxiliary Service of the United States in effect April 1, 1907. In Chapter I, 2, of these regulations it is provided that "these vessels shall be governed by the laws of the United States, by the Navy regulations as far as they may be applicable, and by these regulations."

This seventh convention provides for the responsible control of merchant vessels converted into war vessels. It is accepted as a general proposition that a belligerent under proper regulations will be allowed to use his resources upon the sea as well as upon the land. The fundamental objection to the use of converted merchant vessels has previously been the lack of government control and responsibility. Such control and responsibility is now secured. This convention might properly have the title, "A Convention to Secure the Observance of the Declaration of Paris in regard to Privateering."

According to the preamble itself of the seventh convention, it does not make provision for the subject proposed in the program of the Czar, viz., "conversion of merchant vessels into war ships." preamble of the convention is as follows:

The

Whereas it is desirable, in view of the incorporation in time of war of merchant ships in the fighting fleet, to define the conditions subject to which this operation may be effected;

Whereas, however, the contracting powers have been unable to come to an agreement on the question whether the conversion of a merchant ship into a war ship may take place upon the high seas, it is understood that the question of the place where such conversion is effected remains outside the scope of this agreement and is in no way affected by the following rules.