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the right is unquestionable, and it appears to have been recognised as early as 1164 by the Christian and Mahommedan powers of the Mediterranean.1
But although the principle of the right of visit and search is conceded, the application of the principle has been the source of much friction between belligerents and neutrals. The "Armed Neutralities of 1780 and 1800" were the result of the arrogant pretensions of England in reference (inter alia) to the exercise of this right. It may in the first place be unequivocally stated that it is the duty of the naval officer of the visiting ship to cause as little inconvenience and delay as possible in the exercise of the right; indeed the English Admiralty rules provide as follows: "In exercising the right of visit, the commander should be careful not to occasion to the neutral any delay or deviation from her course that can be avoided, and generally to cause as little annoyance as possible."
Circumstances may exist which would prohibit expeditious search and involve prolonged detention of the suspected. vessel; obstruction by her crew, boisterous weather rendering the dispatch of an open boat from the warship hazardous; the proximity of enemy men-of-war,—are undoubtedly adequate reasons for what would otherwise be undue detention; in these or cognate cases, the commander of the naval ship may order the neutral vessel to lie to, to lower her flag and steer according to his directions, or to proceed to a named port. These constituted in former wars practically the only valid reason for detention of an innocent vessel beyond the time absolutely necessary for reasonable examination, but modern warfare has afforded another cause justifying prolonged detention, namely, the grave peril to which a warship is exposed from submarine attack in waters where such danger exists; under such
1 Twiss, Vol. II, 147, 2nd Edition.
circumstances the naval commander would naturally direct the neutral vessel to proceed to the most contiguous port where the right of search might with safety be exercised.
The extent to which the right of search or examination should proceed are as follows:-If upon examination the ship's papers appear to be in order and there are no extraneous circumstances to arouse suspicion, the visiting officer must immediately withdraw and the vessel must be allowed forthwith to proceed upon her course; but if, on the contrary, the ship's papers upon examination afford intrinsic evidence of mala fides; or if, from the failure of the vessel to reduce speed or shorten sail when signalled to do so, any opposition to the visitation, any attempted concealment, destruction or jettison of papers, any suspicious conduct of the master or of the crew, then the vessel may be subjected to a more minute examination either of documents, or of the officers or members of the crew, or other persons on board, or of the cargo.
Some jurists, including Dr. Martens1 and Massé, limit the right of search to the simple case where the papers are incomplete or irregular, and Hautefeuille would permit no further investigation than the papers, even where the visiting officer doubts or professes to doubt the genuineness of the papers, or the truth of their contents.
In view of the interchange of views between the governments of the United States of America and England of the alleged abuse by the latter power of the right of search, it is interesting to take notice of the instructions issued by the Navy Department of the former Government, on 20th June, 1898, which still remain in force; they are as follows:
12. The belligerent right of search may be exercised without previous notice upon all neutral vessels3 after the beginning of
1 Dep. de la Mer, Liv. III, c. VIII. 2 Droit Com., Liv. II, tit. II, c. II. 8 It is hardly necessary to state the vessels belonging to the Governments of neutral powers are not liable to visit.
the war to determine their nationality, the character of their cargo, and the ports between which they are trading.
13. The right should be exercised with tact and consideration, and in strict conformity with treaty provisions wherever they exist. . . . . The officer should first examine the vessel's papers to ascertain her nationality and her ports of departure and destination. If she is neutral and trading between neutral ports the examination goes no further. If she is neutral and bound to an enemy's port not blockaded, the papers which indicate the character of her cargo should be examined. If these show contraband of war the vessel should be seized; if not, she should be set free, unless by reason of strong grounds of suspicion a further search should seem to be requisite.
The provisions of the Declaration of London in relation to contraband have materially increased the risk of inconvenience and loss to neutrals resulting from visitation and search. Although the Declaration has not been ratified, and is therefore no part of the Law of Nations, all the chief maritime powers, including the United States, are signatories thereto, and England, subject to certain modifications and exceptions, has intimated her intention during the present war to be bound by its provisions.
Article 35 of the Declaration enacts that the ship's papers shall be proof of the destination of the ship, and this, as we have seen, was the old rule under which, with one or two remarkable exceptions, nations have acted in respect of visitation and search, a rule the general observance of which has secured pleasant relations between neutrals and belligerents; unfortunately M. Renault, the French representative at the Conference, imposed a gloss which has rendered this rule wholly illusory. The comment of M. Renault upon this article is :-"It must not be too literally interpreted, for that would make all frauds easy." The question arose, "Is this gloss to be treated as an authoritative exposition of the rule by which naval officers and Prize Courts may be guided in their conduct and
decision?" The English Foreign Secretary, Sir E. Grey, answers it in the affirmative: he says, "In accordance with the principles and practice of continental jurisprudence, such a report is considered an authoritative statement of the meaning and intention of the instrument which it explains, and consequently, Foreign Government and Courts, and no doubt also the International Prize Court, will continue to interpret the Declaration in the light of the commentary given in the report."
It cannot be doubted that by the light of this commentary a naval officer will interpret the rule, as he conceives, in the interest of the belligerent whom he represents rather than of the neutral, and vessels will be, and probably have been, detained for a protracted period, to the serious detriment of ship-owner and merchant, while the cargo is minutely overhauled, even if the greater evil of capture does not ensue. It should, however, be observed that the United States and the other Powers were signatories to the Declaration to which the commentary was attached, and have taken no exception to the interpretation placed upon it by Sir Edward Grey.
It is further to be observed that, as already stated, the test whether or no the ship is destined to an enemy territory no longer decides her guilt or innocence. Formerly, a ship carrying munitions of war to a neutral port could not be molested, even if it were obvious that they would thence be carried by land or water to the enemy, the sole test was the destination of the ship. By Art. 22 of the Declaration the destination of the cargo is the test, and "it is immaterial whether the carriage of the goods is direct or entails either transhipment or transport over land;" thus, a vessel bound for Rotterdam, in neutral territory, may be captured if the naval officer surmise it is the intention of the shippers that the goods will be sent into Germany. The English Government, in a memorandum drawn up for the use of the
London Conference, defines this process as constituting a "continuous voyage"; it is hardly necessary to observe that it is totally distinct from "continuous voyage" as defined by Lord Stowell, and as generally conceived by European Prize Courts. It is true that England so applied the doctrine in the case of The Bundesrath during the South African War, on suspicion that the cargo, although the ship was destined to the neutral port of Lorenço Marques, was intended for the Transvaal Government, but Germany induced England to restore and pay compensation. If this new rule be applied with the severity to be anticipated from naval officers, it will be difficult for a neutral State, whose territory adjoins that of a belligerent, to satisfy her own requirements of munition of war or even of civil supplies in goods which are at all suspicious.
Article 33 of the Declaration makes conditional contraband liable to capture if it is shown that it is "destined for the use of the armed forces or of a government department of the enemy State," and "this destination is to be presumed if the consignment is addressed to enemy authorities or to a trader (commerçant) established in the enemy country, where it is well known that this trader supplies articles and materials of this kind to the enemy. The presumption is the same if the consignment is destined to a fortified place of the enemy, or to another place serving as a base for the armed forces of the enemy."
In some respects, a ship carrying things which fall under the designation of conditional contraband is, under the Declaration, in a more favourable condition than one carrying things of absolute contraband: the doctrine of continuous voyage does not apply unless the enemy territory has no seaboard, nor would they apparently be liable. to capture if destined for the civil government of a colony of the belligerent. On the other hand, M. Renault's commentary would appear to apply, and the time-honoured rule