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PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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So far, therefore, as resistance is concerned the effect of it apparently would be that the crew would be treated as prisoners of war, while if no resistance were made it is possible that the captor might not enforce against the crew the consequences to which Hall refers on page 421 as follows:-

"Sailors on board enemy's trading vessels become prisoners of war because of their fitness for immediate use on ships of war."

No definite statement on the right of merchant vessels to carry arms for self defence can be found in the text books. But this would appear to follow as suggested by Admiral Custance from the right of defence, and in a Memorandum by Mr. Thomas, of the Admiralty, it is suggested that the point in practice would probably resolve itself into a question of expediency dependent upon how the enemy's ships would be likely to regard the status of a merchant ship so armed.

It might, perhaps, lead, especially if resistance were offered, to destruction of the prize on capture in circumstances which according to modern general practice would not be deemed to justify this course.

Assuming that private non-commissioned vessels have the right to resist capture and to be armed for that purpose, there is the further question whether they may render assistance to other merchant ships or ships of war which are attacked, as for instance, in cases where several armed merchantmen sailed together for mutual pro- tection.

The Law Officers are requested to advise whether Merchant non-commissioned

vessels:-

(1) may resist capture:

(2) may carry arms for this purpose:

may render assistance to ships of war engaged with, or to other merchant

vessels attacked by, the enemy:

(4) generally with reference to the legal consequences to ship or crew which

would ensue in any of the above cases.

Opinion.

(1.) and (2) We answer these questions in the affirmative.

(3.) Yes, if such assistance is a form of self defence; for instance, there may be circumstances which would justify her in helping the man-of-war convoying her, or other vessels sailing in company, as this might be for her own safety. But great caution should be exercised in laying down any general maxims on this head as it might end in the vessel becoming a cruiser of a very irregular description.

(4) The only legal consequence we at present apprehend is that it might lead to the forfeiture of neutral goods on board. (See Art. 147 of the Manual of Naval Law, and 1 Dods 448.)

Apart from legal consequences, however, any doubtful conduct in this respect might lead the hostile cruiser not only to destroy the vessel and insist on the exercise of the right to keep the sailors in captivity, but also conceivably to proceed to more vigorous measures based on the allegation of unauthorised belligerency.

Law Officers' Department, 14th March, 1902.

R. B. FINLAY.

EDWARD CARSON.

11931

GENTLEMEN,

No. 1368.

(TRINIDAD.)

FOREIGN OFFICE to LAW OFFICERS.

[Case of the Steam-ship “ Ban- Righ."]

Foreign Office, January 18, 1902. I HAVE the honour to transmit to you herewith, by direction of the Marquess of Lansdowne, the papers noted in the accompanying list which relate to the case of the steamship "Ban Righ."

The facts of this case briefly stated are as follows:--

In consequence of information having been furnished to the Commissioners of Customs and the Lords Commissioners of the Admiralty that a steamer named the "Ban Righ" was being fitted out in the Thames apparently for warlike purposes, the Lords Commissioners of the Admiralty gave orders on the 9th November last that the vessel should be detained, and she was detained accordingly by the Com- missioners of Customs, as it was considered that there was a primâ facie case for the detention of the vessel pending satisfactory explanations, on the ground that there was reasonable cause to suspect a breach of "The Foreign Enlistment Act, 1870" (Papers A, B, and C).

On the 14th November the Customs communicated to this Department a letter (Paper D) from the Consul-General for Colombia in London stating that the "Ban Righ" was "for the Colombian Government, and consigned to Colon"; and on the same day the Board of Admiralty informed the Foreign Office that, as the further steps to be taken in the matter must be determined by such facts as might be known to the Foreign Office, and by considerations of general policy, they trusted that the future conduct of the case would be undertaken by this Department (Paper E).

The matter was then informally referred to His Majesty's Attorney-General, who was of opinion that the vessel might be permitted to sail, provided assurances were obtained-

1. From the Colombian Minister at the Court that the vessel had actually been purchased by the Colombian Government.

2. From the Governments of Colombia and Venezuela respectively that each Government held that no state of war existed between the two Republics.

Lord Lansdowne consequently addressed a formal inquiry to the Colombian Minister on the first point, and received a note in reply stating, on the authority of an Agent of his Government who had just arrived in London, that the vessel was intended for the service of the Colombian Government, and requesting that she might be permitted to depart. He added that he was informed by the then registered owner (M. Rudolph de Paula), that his Agreement contemplated the delivery of the véssel at Colon, that she would sail under the British flag and under his ownership until the contract should be completed (Papers F and G).

With regard to the second point, telegraphic instructions were addressed to His Majesty's Ministers at Caracas and Bogotà (Paper H), from whom replies were received, in the case of the former to the effect that no state of war existed between Venezuela and Colombia, and in that of the latter that the Colombian Government did not consider that a state of war existed with Venezuela (Papers I and J).

On receipt from Caracas of the explicit reply above recorded, as it was known that communications with Bogotà were much retarded, and as the views of Venezuela. the country exposed to injury by the contemplated proceedings of the "Ban Righ.” were deemed to be of chief importance, it was decided to inform the Customs, and they were informed (Paper K) that the vessel might be released, and she accordingly was released on the 22nd November (Paper L).

Subsequent intelligence was received from His Majesty's Consul-General at Antwerp, and from the British Vice-Consul at Flushing (Papers M and N), to the effect that the "Ban Righ" had proceeded direct to Antwerp, where she took in a large supply of arms, ammunition and coal, and sailed out of the Scheldt on the 30th November bound, according to the master's statement, for the West Indies.

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