conference that in principle a neutral prize ought not to be destroyed but should be taken to a prize-court; but under the stress of necessity, military necessity bordering upon selfpreservation, a vessel otherwise liable to be condemned might be destroyed, subject to indemnity in an unjustifiable case, and provided that the papers and the persons on board be properly cared for. "Art. 48. A neutral vessel which has been captured may not be destroyed by the captor; she must be taken into such port as is proper for the determination there of all questions concerning the validity of the capture."1 This establishes the principle as to destruction. "Art. 49. As an exception, a neutral vessel which has been captured by a belligerent war-ship, and which would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the safety of the war-ship or to the success of the operations in which she is engaged at the time. "Art. 50. Before the vessel is destroyed all persons on board must be placed in safety and all the ship's papers and other documents which the parties interested consider relevant for the purpose of deciding on the validity of the capture must be taken on board the war-ship. "Art. 51. A captor who has destroyed a neutral vessel must, prior to any decision respecting the validity of the prize, establish that he only acted in the face of an exceptional necessity of the nature contemplated in Article 49. If he fails to do this, he must compensate the parties interested, and no examination shall be made of the question whether the capture was valid or not. "Art. 52. If the capture of a neutral vessel is subsequently held to be invalid, though the act of destruction has been held to have been justifiable, the captor must pay compensation to the parties interested, in place of the restitution to which they would have been entitled. 1 See Appendix IV, declaration of London. "Art. 53. If neutral goods not liable to condemnation have been destroyed with the vessel, the owner of such goods is entitled to compensation. "Art. 54. The captor has the right to demand the handing over, or to proceed himself to the destruction of, any goods liable to condemnation found on board a vessel not herself liable to condemnation, provided that the circumstances are such as would, under Article 49, justify the destruction of a vessel herself liable to condemnation. The captor must enter the goods surrendered or destroyed in the log-book of the vessel stopped, and must obtain duly certified copies of all relevant papers. When the goods have been handed over or destroyed, and the formalities duly carried out, the master must be allowed to continue his voyage. "The provisions of Articles 51 and 52 respecting the obligations of a captor who has destroyed a neutral vessel are applicable."1 Article 50 of the laws and usages of war at sea, known as United States Naval War Code, makes no discrimination between the destruction of enemy and neutral merchant prizes when necessity requires it. This code was embodied in the instructions of the United States to the American delegation at London. The question of the destruction of neutral prizes at sea occasioned very considerable discussion in England, to an extent arising from the destruction of the British ship Knight-Commander and some others during the Russo-Japanese War. An English author in a book treating of the subject of the declaration of London sums up upon this particular question as follows: "The articles of the declaration, though they are not as deterrent as might have been desired, are at least calculated to secure more respect for the neutral and to place a larger measure of responsibility on the belligerent than was witnessed in 1 See Appendix IV, declaration of London. the American Civil and the Russo-Japanese Wars. Of course there is no reason why Great Britain should depart from her present custom of not sinking neutral prizes, save in very exceptional circumstances; and our abundance of ports in every ocean makes it more feasible for our cruisers than for those of other nations to bring their prizes in for adjudication. We are thus enabled to gain by adding the captured vessels to our marine and confiscating their cargo; and with the new limitation on the right to destroy, our traders will be able to secure compensation in any case where their captured vessels would not have been liable to condemnation if they had been brought in for adjudication instead of being destroyed. The outcry against destruction of prizes is largely founded upon the fact that neutral vessels have been sunk by their captors which should not by the law of nations have been condemned at all. Now, the circumstances in which a neutral vessel is liable to condemnation are quite clearly laid down by the declaration and the obligation of the belligerent to pay full compensation to the neutral ship owner and cargo owner where a prize is sunk which is not legally liable to condemnation, and, lastly, the power which the neutral will have, if the declaration and the prize-court are ratified, of taking the question of the validity of the destruction to an international tribunal which will have no prejudice in favor of the belligerent, form together a combination of safeguards which should prevent outrages upon neutral commerce such as the Russo-Japanese War produced, and should make the right of sinking prizes in future wars exceptional in fact as well as in theory."1 1 Norman Bentwich, "Declaration of London," p. 98. TOPICS AND REFERENCES 1. The Carriage of Persons and Despatches for the Enemy Hall, "International Law," 6th ed., 674-685. Moore's "Digest," vol. VII, 752-768. Higgins, "Peace Conferences," 593-7. 2. The Case of the Trent Harris, "The Trent Affair." Dana, note 228 to Wheaton, 8th ed., 664. Atherley-Jones, "Commerce in War," 311-315. 3. The Opening to Neutrals of a Trade Closed in Peace Higgins, "War and the Private Citizen," part V. Moore's "Digest," vol. VII, 1104-9. Hall, 6th ed., 631-2. Mahan, "Some Neglected Aspects of War," 191. 4. Rescue of Shipwrecked Belligerents by Neutral VesselsHiggins, "Hague Conferences," Convention X, 367-389. Naval War College, "Topics," etc., 1904, 117-128. Oppenheim, 2d ed., vol. II, 252-262. 5. Destruction of Neutral Prizes Hershey, "Essentials," 520-2. Naval War College, "International 200. CHAPTER XXVIII TRANSFER OF FLAG. ENEMY CHARACTER. PRIZE-COURTS Transfer to a Neutral Flag.-The freedom of a neutral vessel from the capture to which an enemy merchant vessel is subject has led in the past to an evasion of capture by the transfer of an enemy vessel to the flag of a neutral state. Consequently, one of the duties of a belligerent cruiser is to ascertain whether such a transfer has been made and, if so, whether it has been legitimate or only for the purpose of evading a capture. Fortunately, this question was taken up by the London naval conference with a resultant agreement as to the treatment of the subject which seems to meet the occasions so far as possible when we consider the diversity of interests involved. The matter is found in the various articles in Chapter V of the declaration, the first of which is numbered 55 and reads as follows: "Art. 55. The transfer of an enemy vessel to a neutral flag effected before the outbreak of hostilities is valid, unless it is proved that such transfer was made in order to evade the consequences to which an enemy vessel, as such, is exposed. There is, however, a presumption, if the bill of sale is not on board a vessel which has lost her belligerent nationality less than sixty days before the outbreak of hostilities, that the transfer is void. This presumption may be rebutted. "Where the transfer was effected more than thirty days before the outbreak of hostilities, there is an absolute presumption that it is valid if it is unconditional, complete, and in conformity with the laws of the countries concerned, and if its |