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States and not between the peoples of States. The attack on private property, which was an essential part of war on the sea, has been considerably checked, but, at the same time, it remains the general rule, unlike the position in land warfare; and the restrictions which have been imposed upon the old license are narrowly interpreted. Private enemy ships may still be captured, together with the enemy cargo on them, whether it consist of goods useful or useless for war; and further enemy goods of any character may be captured on the ships of the belligerent and his allies; while contraband goods may be captured on any ships. Again, while privateering is formally abolished, the determination of belligerent nations to use all their possible force against the enemy has led to the creation of an auxiliary to the regular navy, in the form of converted merchantmen, i. e., ocean liners which, on the outbreak of hostilities, are transformed into warships. The institution has been legalized by one of the Hague conventions (No. VII), though no agreement has yet been reached upon whether the conversion may take place on the high seas or only in a port of the belligerent. The employment of armed merchantmen shows that the attempts to humanize war are hardly and doubtfully won, and the apparent advances made in times of peace are likely to be overthrown by the pressure of the actual conflict.
So much by way of prelude. To come now to the application and development of the law of maritime capture in the war, so far as it has been exemplified in the first few months of hostilities.
The subject may be divided into two main heads—the treatment of enemy ships and cargoes and the treatment of neutral ships and cargoes. Each heading will be separately treated, although certain questions fall within or between the two divisions.
The principal rule in regard to enemy ships, as has been stated, is that they may be captured by the belligerent's public ships, including his converted merchantmen, and either condemned as good prize to the captor or destroyed by them on capture. The crippling of the enemy's sea-borne commerce, which is a national asset as much as it is private wealth, is the justification of the belligerent right which falls directly upon private property. The desire, however, to reduce as far as possible the shock to international trade, which a full application of belligerent rights immediately on the outbreak of war would involve, led, during the 19th century to the habit of granting days of grace to enemy ships found in a belligerent's port when hostilities broke out. The period of grace varied in the different contests and was not always accorded; and the Hague Conference of 1907, which formulated a convention on the status of enemy merchantmen on the outbreak of war, likewise failed to make the practice a binding regulation. Article 1 of the Convention declares that it is desirable that a period shall be given to enemy vessels found in the belligerent's ports, or coming there in ignorance of hostilities, to leave freely for their own or a neutral country, and it does not fix any period for which this indulgence is to be granted. The convention, therefore, required for its completion some legislative or executive act of the belligerent country; and, accordingly, when hostilities broke out on August 4th between England and Germany, an Order in Council was issued by the English Crown, stating the manner in which it was proposed to apply the Hague agreement. The Order in Council reads as follows:
His Majesty being mindful, now that a state of war exists between this Country and Germany, of the recognition accorded to the practice of granting "days of grace" to enemy merchant ships by the Convention relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, signed at The Hague on the 18th October, 1907, and being desirous of lessening, so far as may be practicable, the injury caused by war to peaceful and unsuspecting commerce, is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:—
1. From and after the publication of this Order no enemy merchant ship shall be allowed to depart, except in accordance with the provisions of this Order, from any British port or from any ports in any Native State in India, or in any of His Majesty's Protectorates, or in any State under His Majesty's protection or in Cyprus.
2. In the event of one of His Majesty's Principal Secretaries of State being satisfied by information reaching him not later than midnight on Friday, the seventh day of August, that the treatment accorded to British merchant ships and their cargoes which at the date of the outbreak of hostilities were in the ports of the enemy or which subsequently entered them is not less favourable than the treatment accorded to enemy merchant ships by Articles 3 to 7 of this Order, he shall notify the Lords Commissioners of His Majesty's Treasury and the Lords Commissioners of the Admiralty accordingly, and public notice thereof shall forthwith be given in the "London Gazette," and Articles 3 to 8 of this Order shall thereupon come into full force and effect.
3. Subject to the provisions of this Order, enemy merchant ships which (i.) At the date of the outbreak of hostilities were in any port in
which this Order applies; or (ii.) Cleared from their last port before the declaration of war, and, after the outbreak of hostilities, enter a port to which this Order applies, with no knowledge of the war:
shall be allowed up till midnight (Greenwich mean time), on Friday, the
fourteenth day of August, for loading or unloading their cargoes, and for
departing from such port: Provided that such vessels shall not be allowed to ship any contraband
of war, and any contraband of war already shipped on such vessels must
4. Enemy merchant ships which cleared from their last port before the declaration of war, and which with no knowledge of the war arrive at a port to which this Order applies after the expiry of the time allowed by Article 3 for loading or unloading cargo and for departing, and are permitted to enter, may be required to depart either immediately, or within such time as may be considered necessary by the Customs Officer of the port for the unloading of such cargo as they may be required or specially permitted to discharge.
Provided that such vessels may, as a condition of being allowed to discharge cargo, be required to proceed to any other specified British port, and shall there be allowed such time for discharge as the Customs Officer of that port may consider to be necessary.
Provided also that, if any cargo on board such vessel is contraband of war or is requisitioned under Article 5 of this Order, she may be required before departure to discharge such cargo within such time as the Customs Officer of the port may consider to be necessary; or she may be required to proceed, if necessary under escort, to any other of the ports specified in Article 1 of this Order, and shall there discharge the contraband under the like conditions.
5. His Majesty reserves the right recognised by the said Convention to requisition at any time subject to payment of compensation enemy cargo on board any vessel to which Articles 3 and 4 of this Order apply.
6. The privileges accorded by Articles 3 and 4 are not to extend to cable ships, or to sea-going ships designed to carry oil fuel, or to ships whose tonnage exceeds 5,000 tons gross, or whose speed is 14 knots or over, regarding which the entries in Lloyd's Register shall be conclusive for the purposes of this Article. Such vessels will remain liable on adjudication by the Prize Court to detention during the period of the war, or to requisition, in accordance, in either case, with the Convention aforesaid. The said privileges will also not extend to merchant ships which show by their build that they are intended for conversion into warships, as such vessels are outside the scope of the said Convention, and are liable on adjudication by the Prize Court to condemnation as prize.
7. Enemy merchant ships allowed to depart under Articles 3 and 4 will be provided vith a pass indicating the port to which they are to proceed, and the route they are to follow.
8. A merchant ship which, after receipt of such a pass, does not follow the course indicated therein will be liable to capture.
9. If no information reaches one of His Majesty's Principal Secretaries of State by the day and hour aforementioned to the effect that the treatment accorded to British merchant ships and their cargoes which were in the ports of the enemy at the date of the outbreak of hostilities, or which subsequently entered them, is, in his opinion, not less favourable than that accorded to enemy merchant ships by Articles 3 to 8 of this Order, every enemy merchant ship which, on the outbreak of hostilities, was in any port to which this Order applies, and also every enemy merchant ship which cleared from its last port before the declaration of war, but which, with no knowledge of the war, enters a port to which this Order applies, shall, together with the cargo on board thereof, be liable to capture, and shall be brought before the Prize Court forthwith for adjudication.
10. In the event of information reaching one of His Majesty's Principal Secretaries of State that British merchant ships which cleared from their last port before the declaration of war, but are met with by the enemy at sea after the outbreak of hostilities, are allowed to continue their voyage without interference with either the ship or the cargo, or after capture are released with or without proceedings for adjudication in the Prize Court, or are to be detained during the war or requisitioned in lieu of condemnation as prize, he shall notify the Lords Commissioners of the Admiralty accordingly, and shall publish a notification thereof in the "London Gazette," and in that event, but not otherwise, enemy merchant ships which cleared from their last port before the declaration of war, and are captured after the outbreak of hostilities and brought before the Prize Courts for adjudication, shall be released or detained or requisitioned in such cases and upon such terms as may be directed in the said notification in the "London Gazette."
11. Neutral cargo, other than contraband of war, on board an enemy merchant ship which is not allowed to depart from a port to which this Order applies, shall be released.
12. In accordance with the provisions of Chapter III of the Convention relative to certain Restrictions on the Exercise of the Right of Capture in Maritime War, signed at The Hague on the 18th October, 1907, an undertaking must, whether the merchant ship is allowed to depart or not, be given in writing by each of the officers and members of the crew of such vessel, who is of enemy nationality, that he will not, after the conclusion of the voyage for which the pass is issued, engage while hostilities last in any service connected with the operation of the war. If any such officer is of neutral nationality, an undertaking must be given in writing that he will not serve, after the conclusion of the voyage for which the pass is issued, on any enemy ship while hostilities last. No undertaking is to be required from members of the crew who are of neutral nationality.
Officers or members of the crew declining to give the undertakings required by this Article will be detained as prisoners of war.
And the Lords Commissioners of His Majesty's Treasury, the Lords Commissioners of the Admiralty, and each of His Majesty's Principal Secretaries of State, and all Governors, Officers, and Authorities whom it may concern are to give the necessary directions herein as to them may respectively appertain.
The main scheme of the Order in Council is to carry out the provisions of the Hague convention, but it is notable that in Article 6 it excepts from the privilege of days of grace not only cable ships and oil tank ships, but also vessels of more than 5,000 tons or capable of a speed of more than fourteen knots an hour. No such category of vessels is referred to in the convention, which excepts only from its scope vessels which show by their build (French: construction) that they are intended to be converted into cruisers. But it is reasonable that a belligerent should retain in its ports any ships which might be of use as transports or auxiliaries of the regular navy, even though they are not themselves fitted for conversion into warships. As between England and Germany, however, the rules of the Order in Council did not become operative, because the British Government failed to receive within the time fixed by the Order satisfactory assurances upon the proposed treatment of English vessels seized in German ports. As the official statement indicates, there appears to have been some confusion in the interchange of messages through a minister of a neutral country.
On the night of August 4th 1914, the Secretary of State received the following notice from the German Ambassador:—
"The Imperial Government will keep merchant vessels flying the British flag interned in German harbours, but will liberate them if the Imperial Government receive a counter undertaking from the British Government within forty-eight hours." On August 5th a copy of the Order in Council issued on August 4th as to the treatment of enemy merchant vessels in British ports at the date of the outbreak of hostilities was communicated to the Ambassador of the United States in London, who was then in charge of German interests in this country, with a request that he would be so good as to cause