Volume Ii Part 27 (1/2)

[Footnote 394: Article 40 of the Naval Prize Bill of 1911 runs as follows:--

(1) His Majesty in Council may, in relation to any war, make such orders as may seem expedient according to circ.u.mstances for prohibiting or allowing, wholly or in certain cases or subject to any conditions or regulations or otherwise as may from time to time seem meet, the ransoming or the entering into any contract or agreement for the ransoming of any s.h.i.+p or goods belonging to any of His Majesty's subjects, and taken as prize by any of His Majesty's enemies.

(2) Any contract or agreement entered into, and any bill, bond, or other security given for ransom of any s.h.i.+p or goods, shall be under the exclusive jurisdiction of the High Court as a Prize Court (subject to appeal to the Supreme Prize Court) and if entered into or given in contravention to any such Order in Council shall be deemed to have been entered into or given for an illegal consideration.

(3) If any person ransoms or enters into any contract or agreement for ransoming any s.h.i.+p or goods, in contravention of any such Order in Council, he shall for every such offence be liable to be proceeded against in the High Court at the suit of His Majesty in his office of Admiralty, and on conviction to be fined, in the discretion of the Court, any sum not exceeding five hundred pounds.]

[Footnote 395: See Hall, -- 151, p. 479:--”The English Courts refuse to accept such arrangements (for ransom) from the effect of the rule that the character of an alien enemy carries with it a disability to sue, and compel payment of the debt indirectly through an action brought by the imprisoned hostage for the recovery of his freedom.” The American Courts, in contradistinction to the British, recognise ransom bills. See on the one hand, the case of _Cornu_ v. _Blackburne_ (1781), 2 Douglas, 640, _Anthon_ v. _Fisher_ (1782), 2 Douglas, 649 note, the _Hoop_, 1 C.

Rob. 201; and, on the other, _Goodrich_ and _De Forest_ v. _Gordon_ (1818), 15 Johnson, 6.]

[Footnote 396: The matter of ransom is treated with great lucidity by Twiss, II. ---- 180-183; Boeck, Nos. 257-267; Dupuis, Nos. 269-277.]

[Sidenote: Loss of Prize, especially Recapture.]

-- 196. A prize is lost--(1) when the captor intentionally abandons her, (2) when she escapes through being rescued by her own crew, or (3) when she is recaptured. Just as through capture the prize becomes, according to International Law, the property of the belligerent whose forces made the capture, provided a Prize Court confirms the capture, so such property is lost when the prize vessel becomes abandoned, or escapes, or is recaptured. And it seems to be obvious, and everywhere recognised by Munic.i.p.al Law, that as soon as a captured enemy merchantman succeeds in escaping, the proprietors.h.i.+p of the former owners revives _ipso facto_.

But the case is different when a captured vessel, whose crew has been taken on board the capturing vessel, is abandoned and afterwards met and taken possession of by a neutral vessel or by a vessel of her home State. It is certainly not for International Law to determine whether or not the original proprietors.h.i.+p revives through abandonment. This is a matter for Munic.i.p.al Law. The case of recapture is different from escape. Here too Munic.i.p.al Law has to determine whether or no the former proprietors.h.i.+p revives, since International Law lays down the rule only that recapture takes the vessel out of the property of the enemy and brings her into the property of the belligerent whose forces made the recapture. Munic.i.p.al Law of the individual States has settled the matter in different ways. Thus, Great Britain, by section 40 of the Naval Prize Act, 1864, enacted that the recaptured vessel, except when she has been used by the captor as a s.h.i.+p of war, shall be restored to her former owner on his paying one-eighth to one-fourth, as the Prize Court may award, of her value as prize salvage, no matter if the recapture was made before or after the enemy Prize Court had confirmed the capture.[397] Other States restore a recaptured vessel only when the recapture was made within twenty-four hours[398] after the capture occurred, or before the captured vessel was conducted into an enemy port, or before she was condemned by an enemy Prize Court.

[Footnote 397: Article 30 of the Naval Prize Bill introduced in 1911 simply enacts that British merchantmen or goods captured by the enemy and recaptured by a British man-of-war shall be restored to the owner by a decree of the Prize Court.]

[Footnote 398: So, for instance, France; see Dupuis, Nos. 278-279.]

[Sidenote: Fate of Prize.]

-- 197. Through being captured and afterwards condemned by a Prize Court, a captured enemy vessel and captured enemy goods become the property of the belligerent whose forces made the capture. What becomes of the prize after the condemnation is not for International, but for Munic.i.p.al Law to determine. A belligerent can hand the prize over to the officers and crew who made the capture, or can keep her altogether for himself, or can give a share to those who made the capture. As a rule, prizes are sold after they are condemned, and the whole or a part of the net proceeds is distributed among the officers and crew who made the capture. For Great Britain this distribution is regulated by the ”Royal Proclamation as to Distribution of Prize Money” of August 3, 1886.[399]

There is no doubt whatever that, if a neutral subject buys a captured s.h.i.+p after her condemnation, she may not be attacked and captured by the belligerent to whose subject she formerly belonged, although, if she is bought by an enemy subject and afterwards captured, she might be restored[400] to her former owner.

[Footnote 399: See Holland, _Prize Law_, pp. 142-150.]

[Footnote 400: See above, -- 196.]

[Sidenote: Vessels belonging to Subjects of Neutral States, but sailing under Enemy Flag.]

-- 198. It has been already stated above in -- 89 that merchantmen owned by subjects of neutral States but sailing under enemy flag are vested with enemy character. It is, therefore, evident that they may be captured and condemned. As at present no non-littoral State has a maritime flag, vessels belonging to subjects of such States are forced to navigate under the flag of another State,[401] and they are, therefore, in case of war exposed to capture.

[Footnote 401: See above, vol. I. -- 261.]

[Sidenote: Effect of Sale of Enemy Vessels during War.]

-- 199. Since enemy vessels are liable to capture, the question must be taken into consideration whether the fact that an enemy vessel has been sold during the war to a subject of a neutral or to a subject of the belligerent State whose forces seized her, has the effect of excluding her appropriation. It is obvious that, if the question is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property captured by selling their vessels. The question of transfer of enemy vessels must, therefore, be regarded as forming part of the larger questions of enemy character and has consequently been treated in detail above, -- 91.

[Sidenote: Goods sold by and to Enemy Subjects during War.]

-- 200. If a captured enemy vessel carries goods consigned by enemy subjects to subjects of neutral States, or to subjects of the belligerent whose forces captured the vessel, they may not be appropriated, provided the consignee can prove that he is the owner. As regards such goods found on captured enemy merchantmen as are consigned to enemy subjects but have been sold _in transitu_ to subjects of neutral States, no unanimous practice of the different States is in existence. The subject of goods sold _in transitu_ must--in the same way as the question of transfer of enemy vessels--be considered as forming part of the larger question of enemy character. It has, for this reason, been treated above, -- 92.

IV

VIOLENCE AGAINST ENEMY PERSONS

See the literature quoted above at the commencement of -- 107. See also Bonfils, Nos. 1273-1273'3.