(b) He should send the prize in as good condition as possible, in general, to the nearest prize court of his home country. Sequestration is proposed by the Hague Convention of 1907.

(c) As the title to neutral prize does not pass till condemnation, he should show due respect to persons and property on board the prize.

(a) "To constitute in law a capture, some act should be done indicative of an intention to seize and to retain as prize; it is sufficient if such intention is fairly to be inferred from the conduct of the captor." 22

According to the British and Japanese rules: "If the captain of the man-of-war decides to capture a vessel, he shall inform her master of the reason, and shall take possession of the vessel by sending one officer and the required number of petty officers and men. If on account of bad weather or any other cause it is impossible to dispatch these officers and men, the captain of the man-of-war shall order the vessel to haul. down her colors and to steer according to his direction. If the vessel does not obey the orders of the captain of the man-ofwar, he may take any measures required for the occasion." 23

(b) The general rule is that the prize should be sent in the condition at the time of capture, if possible, to the nearest home port for adjudication. In recent years nearly all neutral states have by proclamation closed their ports to the entrance of belligerent vessels with prize.24 The Hague Convention of 1907 Concerning the Rights and Duties of Neutral Powers in Naval War makes the following provisions:

"Article XXI. A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions.

"It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral power must order it to leave at once; should it fail to obey, the neutral

22 The Grotius, 9 Cranch, 368, 3 L. Ed. 762.

23 Japanese Regulations Governing Captures at Sea, March 7, 1904, LXVII; British Manual Naval Prize Law, No. 238.

24 See neutrality proclamations. Foreign Relations U. S., 1898, pp. 841-904; Id. 1904, 14-35.

power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew.

"Article XXII. A neutral power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in article XXI.

"Article XXIII. A neutral power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports.

"If the prize is convoyed by a war ship, the prize crew may go on board the convoying ship.

"If the prize is not under convoy, the prize crew are left at liberty."

The United States adhered to this treaty, reserving and excluding article XXIII.25 There is much difference of opinion as to the expediency of returning to the practice of sequestration which was once permitted. The great change in means and methods of maritime commerce has made capture at sea a complicated problem involving many interests; e. g., the capture of an ocean liner, or even its delay for visit and search, when having a large passenger list, varied cargo, mails, etc.

(c) The prize regulations of most states make explicit provision for the treatment of captured neutral vessels and of the persons on board. Some treaties also have similar provisions.26 The commander of the vessel making the capture is usually held responsible for the treatment of the prize. Those on board are not, by the fact of capture of the vessel, prison

25 Appendix, p. 567.

26 "In order effectually to provide for the security of the citizens and subjects of the contracting parties, it is agreed between them that all commanders of ships of war of each party, respectively, shall be strictly enjoined to forbear from doing any damage to, or committing any outrage against, the citizens or subjects of the other, or against their vessels or property; and if the said commanders shall act contrary to this stipulation, they shall be severely punished, and made answerable in their persons and estates for the satisfaction and reparation of said damages, of whatever nature they may be." Article XX, Treaty between United States and Italy, Feb. 26, 1871, 17 Stat. 854.

ers of war, though they may be detained as witnesses. They should be treated with consideration, and when passengers are on board these should be delayed as little as possible.

DESTRUCTION OR APPROPRIATION OF PROPERTY AT SEA.

185. (a) As a general rule captured neutral vessels should not be destroyed before adjudication.

(b) "As an exception, a neutral vessel which has been captured by a belligerent war ship, and which would be liable to condemnation, may be destroyed,” if the sending in for adjudication "would involve danger to the safety of the war ship or to the success of the operations in which she is engaged at the time."

(c) Captured vessels or goods are sometimes, after appraisal and before adjudication, appropriated to public use. (d) Vessels or goods are sometimes similarly treated under the exercise of the right of angary.

(a) While it is the general rule that captured neutral vessels should not be destroyed before adjudication, certain regulations issued during recent years have in their wording made no distinction as to the nationality of vessels liable to destruction. The instructions issued by the United States Navy Department in 1898 made no distinction:

"If there are controlling reasons why vessels may not be sent in for adjudication, as unseaworthiness, the existence of infectious disease, or the lack of a prize crew, they may be appraised and sold; and if this cannot be done they may be destroyed. The imminent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. But, in all such cases, all the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered.” 27

The destruction of a neutral ship must be clearly distinguished from the destruction of a belligerent ship, even under the principles at present generally accepted. If the belligerent's

27 General Order 492, June 20, 1898, No. 28. Similar instructions were issued by Russia and Japan in 1904, though the Japanese regulations of 1894 applied to "enemy's vessels." See Takahashi, Int. Law during Chino-Japanese War, p. 183.

vessel is good prize, it may be lost to that belligerent from the time when his opponent captures it. This is not always and necessarily the case, because it may be recaptured, or a court for some reason may not condemn the vessel. Such vessels may also have neutral cargo, which may be in no way involved in the hostilities. The principle of the Declaration of Paris that "neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag," may be involved in such manner as to make great caution necessary in destroying vessels of the enemy before adjudication. Much greater care should be taken before destroying a neutral vessel itself.

Where a vessel is destroyed, as was said in the British case of The Leucade, "the claimants are, as against the captor, entitled to costs and damages." 28 By treaty provisions in some instances more severe penalties are prescribed. The question of destruction of vessels before adjudication was brought into prominence in the Russo-Japanese War in 1904, and vigorous protests were made against Russian action in destroying neutral vessels.20 There is much difference of opinion among

28 Spinks, 217.

29 British Parliamentary Papers, Russia, No. 1 (1905); Foreign Relations U. S., 1904, p. 734; Hershey, Int. Law and Diplomacy during Russo-Japanese War, p. 136; Lawrence, War and Neutrality in the Far East, p. 250; Smith & Sibley, Int. Law during Russo-Japanese War, pp. 186, 465; Takahashi, Int. Law during Russo-Japanese War, p. 310; Int. Law Situations, U. S. Naval War College, 1905, p. 62. The Russian regulations in regard to destruction were:

"40. In the following and other similar extraordinary cases the commander of the imperial cruiser has the right to burn or sink a detained vessel after having previously taken therefrom the crew, and, as far as possible, all or part of the cargo thereon, as well as all documents and objects that may be essential in elucidating the matter in the prize court:

"(1) When it is impossible to preserve the detained vessel on account of its bad condition.

"(2) When the danger is imminent that the vessel will be recaptured by the enemy.

"(3) When the detained vessel is of extremely little value, and its conduct into port requires too much waste of time and coal.

"(4) When the conducting of the vessel into port appears difficult, owing to the remoteness of the port or a blockade thereof.

"(5) When the conducting of the detained vessel might interfere

writers as to the propriety of the destruction of prize before adjudication.30 This difference of opinion was also evident at the Hague Conference in 1907.

The Declaration of London in 1907 provided:

"Article 48. A captured neutral vessel may not be destroyed by the captor, but must be taken into such port as is proper in order to determine there the rights as regards the validity of the capture."

(b) The same Declaration provided that:

"Article 49. As an exception, a neutral vessel, captured by a belligerent ship, and which would be liable to condemnation, may be destroyed if the observance of article 48 would involve danger to the safety of the ship of war or to the success of the operations in which she is at the time engaged."

To guard against arbitrary destruction of neutral vessels, the Declaration of London also provides that the one who has carried out the destruction must prove the existence of "exceptional necessity" before the question of whether the vessel would be good prize is opened. If he cannot prove "exceptional necessity" he must compensate the parties interested

with the success of the naval war operations of the imperial cruiser or threaten it with danger.

"The officer prepares a memorandum under his signature and that of all the officers concerning the circumstances which have led him to destroy the detained vessel, which memorandum he transmits to the authorities at the earliest possible moment.

"Note. Although article 21 of the Regulations on Maritime Prizes of 1895 permits a detained vessel to be burned or sunk ‘on the personal responsibility of the commander,' nevertheless the latter by no means assumes such responsibility when the detained vessel is actually subject to confiscation as a prize, and the extraordinary circumstances in which the imperial vessel finds itself absolutely demand the destruction of the detained vessel.

"41. If the detained vessel subject to destruction on the basis of the foregoing article is found to be better than the imperial vessel, owing to its condition or its seagoing qualities, the commander has the right to substitute the prize for his own vessel and burn or sink the latter." Foreign Relations U. S., 1904, p. 752.

To these a supplementary order was added on August 5, 1905: "Russian vessels were not to sink neutral merchantmen with contraband on board in the future, except in case of direst necessity, but in cases of emergency to send prizes into neutral ports."

30 Kleen, 2 La Neutralite, 531.