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MEMORANDUM BY THE FOReign Office,
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confiscated. Their capture, however, is not prohibited. Vessels captured in such circumstances may be sequestrated or, on payment of compensation, requisitioned. The same rule applies to enemy cargoes on board such vessels. These provisions will be seen to affect the decisions of the prize courts rather than the action of executive naval officers.
11. In any case, they do not apply to any war with Germany or Russia, as these Powers have expressly refused to be bound by article 3. It follows that there is uo obligation in the event of such a war to extend any leniency to enemy merchaut-ships found at sea any time after the outbreak of hostilities, and it is well to remember that both those countries claim the right to sink enemy merchant-vessels as a general rule, grounding themselves on the absence of a sufficient number of conveniently situated national ports to which such vessels could be taken as prizes.
III. ENEMY VESSELS ENJOYING SPECIAL IMMUNITY,
12. There are exceptional circumstances which may confer on an enemy merchant- ship the privilege of immunity from capture. This is the case as regards-
(a.) Hospital-ships, under the provisions of the Convention for the Adaptation of the Principles of the Geneva Convention to Naval War (see Command Paper 1175, p. 87); and (b.) French and Dutch mail-packets plying regularly between England and their respective countries. These are protected by the Postal Conventions of the 30th August, 1890, and the 14th October, 1843, respectively, under which, in case of war between the Contracting Powers, the vessels must be allowed to continue their navigation without impediment or molestation until either government gives notice that the service is to be discontinued, in which case the vessels are to be permitted to return freely, and under special protection, to their country.
IV.-CREWS oF CAPTURED MERCHANT-VESSELS,
13. In all cases where enemy merchant-ships are seized, whether within territorial waters, when days of grace have been withheld, or on the high seas, the treatment of the captured crews is governed by the rules laid down in the "Convention (The Hague, 1907) relative to certain Restrictions on the Exercise of the Rights of Capture in Maritime War" (see Command Paper 1175, p. 96), the provisions of which, so far as they deal with this question, are as follows :—
“CHAPTER III.—Regulations regarding the Crews of Enemy Merchant-ships captured by a Belligerent.
"Article 5.
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When an enemy merchant-ship is captured by a belligerent, such of its crew as are subjects or citizens of a neutral State are not made prisoners of war. The same principle applies in the case of the captain and officers, likewise subjects or citizens of a neutral State, if they give a formal undertaking in writing not to serve on an enemy ship while the war lasts.
"Article 6.
"The captain, officers, and members of the crew, if subjects or citizens of the enemy State, are not made prisoners of war, provided that they undertake, on the faith of a written promise, not to engage, while hostilities last, in any service connected with the operations of the war.
"Article 7.
"The names of the persons retaining their liberty under the conditions laid down in Article 5, in the second paragraph, and in Article 6, are notified by the belligerent captor to the other belligerent. The latter is forbidden knowingly to employ the said persons.
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