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 because 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 vessels 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 enemy's property. In passing judgment Lord Stowell said:

This was the state of the first seizure. It was at first equivocal; and if the matter in dispute had terminated in reconcilation, the seizure would have been converted into a mere civil embargo. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impressed the hostile character upon the original seizure. It is declared to be no embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus, by which it was done, that it was done hostili animo, and is to be considered as an hostile measure ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries, which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities. No such convention is set up on either side, and the State, by directing proceedings against this property for condemnation, has signified a contrary intention. Accordingly, the general mass of Dutch property has been condemned on this retroactive effect; and this property stands upon the same footing.

However artificial, illogical, or unjust we may consider the reasons advanced by Lord Stowell, the case of the Boedes Lust was unquestioned law and actual practice. As late as 1854 Dr. Lushington could say:

With regard to an enemy's property coming to any part of the Kingdom, or being found there, being seizable, I confess I am astonished that doubt should exist on the subject. I apprehend the law has been this, that it is competent for any person to take possession of such property, unless it had any protection by license, or by some declaration emanating by the authority of the Crown, and to assist the Crown to proceed against it to adjudication. (Johanna Emilie, 1854, Spinks, 14).

As Professor John Basset Moore says, in his monumental International Law Digest:

It was formerly the practice not only to seize enemy vessels in port at the outbreak of war, but also to lay an embargo upon them in expectation of war, so that if war should come they might be confiscated. A rule of precisely the opposite effect has been enforced in recent wars.1

The innovation came from a quarter in which it was least expected, for on October 4, 1853, Turkey said, in its declaration of war against Russia:

1 Moore, Digest of Inter. Law, sec. 1196.

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.2

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.