countries the log is legal evidence of the matters which it contains and in the English law courts it is treated as of very great weight in all disputes arising out of or in connection with the voyage. In the Prize Courts the importance attached to the log was especially great. It had become a common practice for vessels to keep a separate signal log and this duty was especially incumbent upon a hospital ship. If only innocent signals were made by the Ophelia, as was contended, the signal log was the very document of all others which should have been preserved instead of being thrown overboard. The Judicial Committee then dwelt upon the serious consequences resulting from the spoliation of documents which had been committed by the officers of the Ophelia,. first, in throwing overboard when the vessel was about to be searched various documents including the signal log which contained the messages sent, and second, in destroying after capture the records relating to the stock and consumption of signal lights. If, as the Captain of the Ophelia contended, the signal book contained only innocent messages there was no reason for destroying it. It was reasonable to conclude, therefore, that it was destroyed because something wrong had been done which would. have been disclosed by its preservation. The same conclusion, their Lordships added, must be drawn from the destruction of the stock book of signal lights. They were therefore of the opinion that the evidence disclosed facts of which no satisfactory explanation was or could have been given and that the president of the Prize Court was fully justified in finding that the Ophelia was not constructed, adapted or used for the special and sole purpose of affording aid and relief to the wounded, sick and shipwrecked; that on the contrary she was adapted and used as a signalling ship for military purposes and must therefore be condemned as lawful prize.1

Sec. 180. Italian Case of the "Oceania." The only other reported case involving the status of a hospital ship was that of the Oceania decided by the Italian Prize Commission on November 12, 1918.2 The Oceania was an Austro-Hungarian vessel which had been fitted out as a hospital ship by the AustroHungarian government and notified as such to the Italian govern

'The German government issued a white book entitled Denkschrift der Deutschen Regierung im Sachen der Beschlagname des Hilfslazarettschiffs "Ophelia" durch Britische Seestreits-Krafte, in which it denounced the condemnation of the Ophelia as being contrary to the Hague Convention and asserted that she was a bona fide hospital ship which had never been used for military purposes.

Fauchille et Basdevant, Jurispr. Ital., p. 468.

ment on July 1, 1918. On the 29th of October, 1918, two days before her capture, the Italian government was notified that the vessel was no longer employed as a hospital ship. At the time of her capture the vessel was, moreover, in a state of abandonment. In these circumstances the Prize Commission condemned the ship as lawful prize. Although the nationality of the vessel was Austro-Hungarian, by reason of the flag which she was entitled to fly the owners were an Italian Company established at Trieste. Under the terms of the decree of June 24, 1915,1 the Prize Commission was authorized whenever it found that the owners of enemy ships or goods captured and confiscated as good prize, were persons of Italian nationality, originaires of regions subject to Austro-Hungarian domination, it might suspend the sale of such ships and goods and inform the Italian government thereof, which might if it chose, restore the condemned property to the Italian owners. Counsel for the owners of the Oceania appealed to the Prize Commission to adopt this procedure but it declined to do so and held that the claimants were not entitled to the benefits of the decree, apparently because the flag which the vessel was entitled to fly and which she actually flew was conclusive as to the nationality of the ship and, being an enemy flag, she must be confiscated.

These were the only cases involving the immunity of hospital ships which came before the Prize Courts, although there were a good many instances of the illegal destruction of such vessels, for the most part by German submarines.2

IV

SMALL BOATS EMPLOYED IN LOCAL TRADE

Sec. 181. Case of the "Maria." No Immunity According to Customary Law. Article 3 of the Eleventh Hague Conven

1 Text, ibid., Annexe, p. XIII.

As to the details see my International Law and the World War, vol. I, pp. 506 ff., and the sources there cited. In two of these cases, the Dover Castle and the Llandovery Castle, the criminal responsibility of the commanders of the submarines which sunk them was passed upon by the German Imperial Court at Leipzig. In the first case it was held that Commander Neumann, who was charged with having torpedoed the Dover Castle without warning and with exceptional brutality, was not liable to punishment because he acted in obedience to superior orders. In the second case, two officers of the submarine which sank the Llandovery Castle were condemned to four years imprisonment for firing upon the survivors while they were trying to escape in the life boats. See texts of the decisions in 16 Amer. Jour. of Int. Law, pp. 704 and 709.

tion exempts from capture "small boats employed in local trade." In the case of fishing vessels, their immunity from capture was recognized by the Prize Courts as being an established rule of customary law and existed independently of conventional agreements. In the case of the Maria1 the Prize Court for Egypt was called upon to decide whether the immunity established by the Convention could be invoked by an enemy owner who was the national of a State (Turkey) which had not ratified the Convention. The claimant admitted that the Convention as such was not applicable because of non-ratification by his government but he maintained that the rule embodied in Article 3 was merely declaratory of a practice and rule of law which had become established before the Convention was signed and was therefore binding upon the Court as a rule of customary law, irrespective of the status of the Convention in which it was embodied. In support of this proposition the claimant relied upon the decisions in the cases of the Berlin, the Paquête Habana and the Lola which, although they involved fishing vessels, covered equally small vessels like the Maria engaged in the coasting trade. Judge Grain, however, was of the opinion that Sir Samuel Evans' "dictum" in the case of the Berlin to the effect that the immunity of coast fishing vessels had become a settled doctrine and practice of the law of nations, applied only to "small fishing boats belonging to men who are earning their livelihood and supplying the food of small communities on the coasts," and not to general trading vessels like the Maria which was a ship of 27 tons engaged in the general coasting trade. It was, therefore, liable to capture and confiscation and must be condemned. Unlike the immunity of fishing vessels, that of small boats engaged in local trade, had no existence apart from the Hague Convention.

Sec. 182. Tugs, Lighters, and Motor Boats. In the case of the Floating Craft of the Deutsches Kohlen-Depôt, Port Said,2 Judge Grain held that certain tugs, motor boats and lighters belonging to a German firm and employed for the purpose of supplying coal to ships touching at Port Said did not come within the category of "small boats employed in local trade." Adverting to Hall's statement of the reason upon which the immunity of coastal fishing vessels is founded, namely, the injustice of inflicting hardship upon poor and inoffensive people who gain their livelihood by fishing, Judge Grain expressed the opinion

'I, Br. & Col. Pr. Cas., 259.

'VIII, Lloyd, 138; II, Br. & Col. Pr. Cas., 439.

that the foundation for the exemption of "small boats employed in local trade" was the same as in the case of fishing vessels. The trading boats which the Convention had in mind, he thought, were such as passed to and from small villages and ports on the coast and which belonged to poor men engaged in earning their living by carrying food to such places. The owners of the tugs, motor boats and lighters in this case, however, were not men of this class or occupation; they were a rich and powerful company engaged in serving extensively the maritime commerce of Germany; their tugs and lighters did not therefore fall within the category of such small boats as were protected by the Hague Convention. Sir Samuel Evans reached the same conclusion in the Vulcan Coal Company case1 which involved the status of tugs and lighters used for discharging colliers and bunkering steamships at Port Said. The opinion of Judge Grain in the Deutsches Kohlen Depôt case on this point was affirmed on appeal to the Judicial Committee. Lord Sumner adverting to the French text of the Eleventh Convention (Bateaux exclusivement afféctés... à des services de petite navigation locale) said:

"For some reason, which is not apparent, the French text makes the element of size a quality of the service in which the craft are engaged: in the English it is a quality of the craft themselves. In the present case it is difficult to describe either the craft or the navigation in which they engage as 'small.' As applied to the navigation the words evidently predicate of it a petty, local character. These craft are an integral and indispensable adjunct of most important ocean voyages, and without them voyages through the Suez Canal would be impracticable. Their service is the reverse of petty or local. Nor are the craft themselves truly small. The tugs must be of high power, and their mere tonnage and dimensions are therefore not decisive. Few of the barges are even of modest size; none are insignificant, and most of them are of ample burden. Their Lordships will not imitate the learned judge below in treating the penury or the opulence of those engaged in the traffic as determining the claim of the craft to protection, though this feature may not be without its importance, but they are satisfied that whatever be the precise limits of this Article, it was never contemplated that such craft as these should fall within them, and they think the same of the argument that they can be assimilated to fishing boats, so as to entitle them to the tenderness which has often been extended to fishermen under international law."

VIII, Lloyd, 146, note, proceedings transferred from the Prize Court for Egypt to the English Prize Court.

VIII, Lloyd, 147; III, Br. & Col. Pr. Cas., 264. 8 See further as to this case, Sec. 381, infra.

Sec. 183. Other British Cases. The decision in the Deutsches Kohlen-Depôt case that tugs and lighters used for loading and unloading or supplying with coal trans-oceanic vessels in a particular port were not "small boats employed in local trade" and as such entitled to the benefit of the Eleventh Hague Convention was followed by Lord Sterndale in the case of the Anichab and Other Vessels and Craft.1 The only difference between the craft in this case and those in the Port Said case was that the latter were larger of tonnage. The former ranged in tonnage from seven to fifty tons in the case of the wooden lighters, and the iron lighters were of seventy-five tons. There were also some rafts of eighteen tons. They were all employed in connection with loading and unloading, and the removing of passengers and otherwise facilitating the operations of the steamers of a German line at Luderitz Bay and Swakopmund in German South-West Africa. Lord Sterndale did not think the smallness of their size was so much the test of their character, as the use to which they were being put, namely, the rendering of assistance to German trans-oceanic steamers which were engaged in trading to South Africa. On the authority of the Deutsche Kohlen Depôt Gesellschaft case he held therefore that they were not exempt from capture and condemnation.

2

In the case of the Atlas and Lighters the Supreme Court of Jamaica, sitting in prize, held that neither Article 1 of the Sixth Hague Convention, nor Article 3 of the Eleventh Convention, which respectively allow days of grace to belligerent merchant ships in an enemy port at the commencement of hostilities and which exempt from capture small boats employed in local trade, applies to tugs and lighters used exclusively in harbour work in a particular port. The Crown argued that "merchant ships"navires de commerce-referred to in the Hague Convention, meant sea-going vessels engaged in carrying merchandise from one port to another and not tugs and lighters employed in a particular port and that the term "merchant ship" used in the British merchant shipping act did not embrace such craft. Chief Justice Coll in making an order of condemnation said he was satisfied that neither the tug nor the lighters came within the category of vessels which the two Conventions intended to protect.

Sec. 184. Italian Cases. The "Cervignano" and "Friuli." The Italian Prize Commission held in the case of the Cervignano

'IX, Lloyd, 118; III, Br. & Col. Pr. Cas., 612. See also Secs 52 and 156, supra. 'IÍ, Br. & Col. Pr. Cas., 470.