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PUBLIC RECORD OFFICE

Reference :-

C.O. 8

885

15 PUBLIC RECORD OFFICE, LONDON

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the military operations of the enemy are being assisted. A person in the civil employ- ment of the enemy may be so associated with the conduct of the war as to render his carriage an unneutral act. Whether he is so associated is a question of fact which must be decided according to the circumstances in each case, and it is impossible to lay down any general rule. Ordinarily speaking, it is the carriage of military persons

which is obnoxious.

Of course, if the vessel itself has been taken into the enemy's service, it may be liable to seizure upon this ground, even though the purpose was the carriage of merely civil functionaries.

2. The number of persons carried on board the vessel does not per se make any difference in the guilt of the carrying vessel, but it may be a most important element in determining whether the vessel should or should not be forfeited. The carriage of say 1,000 men in the military service of the enemy would raise an almost irresistible presumption that those responsible for the conduct of the ship knew what they were doing. On the other hand, one General may be of more importance to the enemy than 10,000 or 20,000 men. But, of course, it is quite nossible in the case of one individual that the ship-owner and his agents were ignorant of the errand for which he had taken his passage.

3 If a vessel has been taken into the service of the enemy, it seems to us that Lord Stowell's doctrine, that she has been so taken by force or fraud makes no difference, is sound. She is an enemy vessel, and, as such, subject to seizure. But, if the facts stop short of showing that the vessel was in the enemy's service, we think that the fact that the shipowner and his agents were ignorant of the character of the persons they were carrying has a most material bearing on the question whether the ship should be forfeited.

The owners of a mail steamship are in no way to blame if a person in the military service of the enemy has, without their knowledge, taken a ticket as an ordinary passenger, and we think it impossible to maintain the view that such a circumstance would render the vessel liable to be condemned.

4. We are of opinion that military persons in actual service cannot, in the present state of international law, be taken out of neutral vessels without the institution of proceedings against these vessels. It would be extremely reasonable that such a practice should be established, but if this is to be done it must be effected by Con-

vention.

5. The situation of both the port of departure and the port of destination may be important upon this question. The real point to be determined is whether the des- tination of the persons in the service of the enemy'is such as to enable them to render service in the course of the military operations. If their destination is hostile, it is immaterial that their port of departure was neutral. If their port of destination is that ordinarily employed to obtain access to the belligerent forces of the enemy, it is, in our opinion, immaterial that it is a neutral port.

In the case of an inland State which has access to the sea only by a particular port, we think that military persons on their way to that port may be treated for this purpose as having a hostile destination, even though that port be neutral. The question, however, is one of degree, and to justify seizure such a neutral port must, in our opinion, be proximately connected with the belligerent for instance, we do not think that if Russia were at war with the United States a packet-boat running between Dover and Ostend could be properly stopped on the ground that she had on board some Russian officers who intended to proceed from Ostend to Russia by rail. As the question is one of degree, no attempt should be made to lay down a rigid rule, but the matter should be dealt with by special instructions, having regard to the circumstances of each particular war.

6. We think it is not necessary that such persons should be in the actual military employment of the belligerent State, but that it is sufficient that they should be on their way to join its forces, if it may reasonably be expected that their services will be ac- cepted on arrival. No sound distinction can be drawn between the case of persons actually enrolled as recruits and the case of persons on their way to join the enemy, knowing that they will be accepted as recruits as soon as they arrive.

7. In answer to this question we beg to refer to our Report of the 25th January last.* In order to be taken into account the carriage of such persons must be made a head of charge against the vessel in Prize Court proceedings.

• No. 13.

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8. By way of general observation, we have only to add the following:-There is great difficulty in laying down positively the rule of international law upon the subject now under discussion, owing to the fact that the circumstances of the carriage of passengers at sea are now quite different from what they were when the principles of international law upon this subject are supposed to have been established. During the great war with France, when soldiers or officers were to be conveyed by sea it was generally necessary to engage a vessel specially to perform the service. At the present day the seas are covered by fleets of liners carrying on an enormous passenger traffic. and, even in the most recent Treaties, the vast difference which this change must inake in the practical application of the rules of international law is hardly adequately recognised.

In some works of authority, for instance in Dr. Geffcken's contribution to Holt- zendorff's Collection, it is laid down that the carriage of military persons as ordinary passengers is in no way obnoxious to the rules of international law upon this head; and Hall would appear to share the same view. This view appears to us to be unsound in principle. It cannot be that impunity is extended to the carriage of military persons for the enemy merely on the ground that they are conveyed as ordinary passengers, though this may form an important element in determining whether the penalty of confiscation is to be visited on the vessel. On the other hand, it must be recognized that great inconvenience will be occasioned if a liner is to be brought into port merely because, among her passengers, there are one or two persons in the military employ- ment of the enemy, and this inconvenience is intensified in the case of mail steam-ships, the claim of which to favourable treatment was emphatically asserted by this country in one passage of the despatch sent by Earl Russell in the case of the "Trent." Unless some agreement be arrived at by Convention, the point is one on which no rigid rule ought to be laid down. A good deal must be left to special instructions in the case of each war, and to the exercise of tact and forbearance by the visiting officers.

Royal Courts of Justice,

March 26, 1900.

RICHARD E. WEBSTER. ROBERT B. FINLAY.

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