by Lord Stowell in a series of judgments which constitute an authority on the subject. As he stated in The Washington, convenient is a large and general term, leaving a certain latitude of discretion to captors, but a discretion which they are bound to exercise cautiously." Conveniences are of different kinds, some of a slighter nature, others almost indispensable. Among the indispensable conditions must be considered that of bringing a ship to a port where she may lie in safety, and which also affords security and protection to the property carried on board. The second material ingredient of convenience is that the port should be of sufficient capacity to admit vessels to enter without unloading their cargoes, since it is a fundamental rule that bulk must not be broken. The third important consideration is that the port should be a place which holds ready communication with the tribunals which have to decide the question arising out of the capture, and which enables the parties to get the necessary advice as to the defence of their rights.1 On the other hand, there are conveniences of a subordinate nature in favour of captors which are also deserving of attention provided that they are not suffered to predominate over the interests. of other persons and more especially over those general purposes of public justice to which the judge is principally bound to attend." The privilege of electing their own ports is a con

66

9

9 (1806), 6 C. Rob. 275, 276. Cf. The Südmark (No. 2), [1918] A. C. 475, 480.

1 The Wilhelmsberg (1804), 5 C. Rob. 143, 144; The Topaz, supra.

venience which is thus allowed coeteris paribus to the captors, and it is one in which the Court will be disposed to support them when it does not become the cause of greater inconvenience to others.2

The port should be as near as possible to the place of seizure,3 and in the great majority of cases will be a port of the captor's nationality and where his Prize Courts are established.

If a belligerent captor's port is not convenient, then the prize may regularly be carried into an allied port. This practice is in harmony with the principle maintained by Lord Stowell in The Christopher, and has largely been resorted to by the Allies during the Great War.

4

The question arises whether the captor may bring his prize into a neutral port if his own ports or those of his ally are too distant and he is unable to reach them. Lord Stowell, in The Peacock, whilst laying down the general rule that captors should not take prizes into neutral ports, admitted that exceptional circumstances might occur where for some very particular reason it was necessary for the King's ships to depart from this principle." The Thirteenth Hague Convention of 1907 also contemplates this case, and provides that a neutral Power may allow access to its ports and roadsteads to prizes, whether escorted or not, when they have been brought there to be left in sequestration

2 The Washington, supra.

3 Lords Commissioners in The Catharina Elizabeth (1810), 1 Acton, 309, 313; The Südmark (No. 2), [1918] A. C. 475, 480. 4 (1799), 2 C. Rob. 207.

5 (1802), 4 ibid., 185, 189. Cf. The Südmark (No. 2), supra.

pending the decision of a Prize Court (Article 23). This provision does not establish, however, an obligation on the neutral State which remains free to accept or not, as it thinks fit, prizes into its ports. In default of such permission, and if the captor is unable to take the vessel into a port, can he destroy the prize?

A clear distinction must, in this respect, be drawn between enemy and neutral ships.

6

of prizes.

§ 235. Enemy merchant vessels may only be Destruction destroyed by the capturing officer in case of Enemy military necessity. It is solely on the ground of vessels. special circumstances and when the preservation English rule. of the prize is impossible that destruction is permissible. Holland's Prize Manual gives as examples of such justification the unseaworthiness of the prize or the commander's inability to spare a prize crew. On the other hand, the Oxford Manual of the Institute of International Law, 1913, provides that belligerents are not permitted to destroy seized enemy ships, except in so far as they are subject to confiscation and because of exceptional necessity, viz., when the safety of the capturing cruisers or the success of the war operations in which they are at that time engaged is seriously involved. Before the vessel is destroyed all persons on board must be placed in safety, and the ship's papers and other relevant documents must be taken on board the captor's ship."

7

The question of destruction of enemy vessels was also considered by Sir Samuel Evans in The

6 Cf. Lord Stowell in The Felicity (1819), 2 Dodson, 381, 386. 7 Article 104, Annuaire, vol. 26 (1913), p. 641.

French rule.

8

Stoer, and he there said that the law was clear that, under certain conditions, an enemy ship captured at sea could be sunk instead of being brought into port to be tried in the Prize Court. It was equally clear upon the facts of that case that in the circumstances the commander, who had made an affidavit, was justified in sinking the vessel because he was not able to spare a prize crew in order that she might be taken into port. Before such a destruction, however, takes place, there must be proof that the ship belonged to the enemy, and the commanding officer must remove her crew and, if possible, her cargo."

1

§ 236. The principle adopted by the French Prize Court was similarly that the destruction of an enemy ship is valid only when justified by imperative circumstances. Instances of such circumstances occurred in the following cases, all of which arose during the Great War: (i) when the preservation of the prize endangers the success of the operations in which the capturing cruiser is engaged; (ii) when it is impossible, owing to the unfavourable state of the sea and the stress of the weather, to tow or convoy the seized vessel; (iii) when the prize cannot be navigated on account of her unseaworthy condition and as being too old;3 (iv) generally by reason of urgent military necessities duly established to the satisfaction of the Court by the captors. In each case the crew was

8 [1916] 5 L. R. P. C. 18.

9 See also The Santa Isabel judgment of September 18, 1916, Off. Tr. Notes; and Lord Merrivale in The Walter Leonhardt, [1921] 7 Ll. L. R. 9.

1 The Mahrousseh, [1915] J. O., December 17, 1915, 9272. 2 The Jabr-el-Kavater, [1915] ibid., January 4, 1916, 79. 3 The Cheref, [1915] ibid., January 9, 1916, 231.

4 The Sélimié, [1916] ibid., March 13, 1916, 2018.

removed from the enemy vessel and placed in safety and the ship's papers preserved.

Such was also the practice followed by the Sebastopol Prize Court in The Evangelistri and The Fevzi Bari, and by the Sasebo Court in The Eors."

6

8

§ 237. The rule was repeatedly infringed by Germany. Enemy vessels were flagrantly sunk with their crews by German submarines. A justification for this illegal practice was attempted by the German Prize Courts, and the ground was advanced that the campaign in which the submarines were engaged rendered it impossible for them to take the ships into port, and that the destruction was necessary in order to avoid recapture by the enemy. Such an argument clearly amounted to a breach of the existing principles of international law, which allow the sinking of enemy vessels solely for reasons of urgent military necessity. Circumstances which can be foreseen and are within the power or control of belligerents do not afford any justification. Germany was at all times aware of the inability of her submarines either to carry a prize crew or else conduct the captured vessels in for adjudication, and therefore the use of the submarines was unlawful unless they were able to conform to the established laws of naval warfare. The action of the German captors constituted, further, an infringement of the German Prize Ordinance, which enacted that before the destruction of a prize "the safety of all persons on board, and so far as possible their effects and the ship's papers, should be provided for" (Art. 116).

5 Judgment of August 5, 1915, Rep. Fry Libr.

6 Judgment of August 12, 1915; and The Aios Nikolaos of even

date, ibid.

7 [1915] Japanese Official Gazette of February 3, 1915, No. 750. 8 The Glitra, [1915]; The Indrani, [1916] J. A. P., 25, 74. 9 The existing rule on the subject was adopted by Article 1 of the treaty signed at Washington on February 6, 1922, between the British Empire, the United States of America, France, Italy and Japan, A. J. I. L., vol. 16 (1922), 57 (supplement).

German and

Austrian rules, a

violation of existing principles.