Front Page Titles (by Subject) Convention No. 6. Relative to the status of enemy merchant-ships at the outbreak of hostilities 1 . - The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War
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Convention No. 6. Relative to the status of enemy merchant-ships at the outbreak of hostilities 1 . - A. Pearce Higgins, The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War 
The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War. Texts of Conventions with Commentaries, by A. Pearce Higgins, LL.D. (Cambridge University Press, 1909).
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Convention No. 6. Relative to the status of enemy merchant-ships at the outbreak of hostilities1 .
The third subject on the list of matters assigned to the Fourth Committee was that of “days of grace” (délai de faveur) to be granted to vessels to leave neutral or enemy ports after the commencement of hostilities.
Development of practice of “days of grace.”It is a well recognised rule of international law that private property belonging to the enemy on the sea is liable to capture. This rule applies to both ships and cargoes. At the beginning of the last century ships whether public or private in territorial waters of the enemy on the outbreak of war were also liable to capture, and it was no uncommon thing for a state to lay an embargo on ships belonging to the subjects of another state with which it was at variance in anticipation of the outbreak of war. This embargo was at first a civil embargo and equivocal in character, but if the dispute ended in war, its effect was retroactive and impressed a “hostile character on the original seizure2 .” This practice has however not been followed during the past half-century. A custom has arisen according to which states, on the commencement of war, issue proclamations allowing enemy ships in harbour to depart within a specified time, either after loading, or unloading, and to be free from capture under certain specified conditions. Such proclamations often made provision for the freedom from capture of enemy ships which had sailed from foreign ports before the proclamation. Turkey in 1853 on the outbreak of war with Russia allowed Russian merchant-ships to leave her ports. France and Great Britain in 1854 allowed Russian ships of commerce six weeks, and granted concessions to those bound for their ports for a similar period. Russia made analogous concessions to French and British ships. Six weeks were also allowed by Prussia to Austrian ships in 1866. In 1870 France allowed 30 days to German merchant vessels in French ports, or which entered the ports in ignorance of the war. The most liberal concessions were those of the United States to Spanish ships at the outbreak of the war in 1898. President McKinley’s Proclamation issued on the 26th April allowed Spanish merchant-ships in American ports until the 21st May for loading their cargoes and departing, and such vessels were not to be captured on their voyage if it appeared from their papers that the cargoes were taken on board within the time allowed. There was an express exclusion of vessels having on board military or naval enemy officers, contraband of war, or despatches to or from the Spanish Government1 . Spain was not so liberal in her concessions, and allowed only five days for American merchant-ships to leave her ports. The United States Proclamation received a liberal construction in the case of the Buena Ventura, a ship which had sailed before the outbreak of war and was captured the day before the issue of the Proclamation. Days of grace were also allowed by both Japan and Russia at the outbreak of the war of 1904 but the time allowed was very short. Japan allowed a week’s grace to Russian vessels in Japanese ports at the date of the Proclamation to enable them to discharge or load cargo and depart, and exempted such ships from capture, if they were provided with a certificate and proved that they were on their way back to the nearest Russian port or a leased port or their original destination2 . The Russian concessions were still less favourable to enemy merchantmen found in Russian ports at the outbreak of war. They were allowed to remain “for a period of 48 hours from the time of publication of the declaration by the local authorities.” Carriage of contraband of war was prohibited by both states.
The foregoing instances represent the mitigations of the severity of the rule of capture of enemy ships at the commencement of war which had been introduced by various states since the Crimean War. The periods allowed varied from the liberal concessions made by the United States, to the period of 48 hours allowed by Russia. The granting of days of grace in the latter case was merely a formal acknowledgment of the existence of the practice.
Proceedings in Committee.The motive for the concession was that of “conciliating the interests of commerce with the necessities of war” and “of protecting in as large a measure as possible operations entered into in good faith and in process of being carried out before the war3 .” The question to be considered by the Committee was formulated by M. de Martens: “Is it a rule of war (Est-il de bonne guerre) on the opening of hostilities to detain and confiscate enemy merchant-ships in the ports of one of the belligerent states? Should the vessels be recognised as having a right to leave freely, within a given fixed time, the ports in which they were at the commencement of war, with or without their cargoes?”Russian proposals. Russia proposed four Articles declaring the granting of a period of delay to merchantmen in an enemy port at the outbreak of war to be obligatory, and that they should be allowed to complete their commercial operations and be free from capture till they reached the nearest port of their own country or a neutral port (Art. 1). Ships which in consequence of force majeure were unable to avail themselves of this advantage should not be confiscated (Art. 2). Merchant-ships on the high seas having left their port of origin or another port before the commencement of war are not to be confiscated, but if military circumstances demand it, they may be detained by the enemy for such a time as might be required by the necessities of war (Art. 3). Ships mentioned in the foregoing Article arriving in an enemy port to enjoy the periods of grace and immunities previously mentioned (Art. 4)1 . Captain Qttley (Great Britain) contended that the allowance of time which Great Britain had accorded was only an act of grace, and must not be regarded as a right, and that it would be impossible to formulate any rule which would give satisfaction to every one under all circumstances. He put the case of a war between two Powers, one with a large mercantile navy, the other with but small commercial interests; the former would wish for as long a period as possible, the latter would be anxious to commence operations as soon as possible against the merchant-ships of its enemy2 . (This was the case in the Russo-Japanese War.),French proposal. The Japanese delegate re-echoed the words of Captain Ottley. M. Renault (France) proposed to maintain the existing optional system, but desired to exclude from capture ships whose exit had been prohibited, allowing them to be requisitioned and indemnities to be paid. Dutch proposal. The Dutch delegate wished to fix the delay at not less than five days and to exempt from the concession vessels obviously designed or capable of being converted into ships of war, vessels which M. Lammasch had termed “hermaphrodites.”
Swedish proposal.The Swedish delegate proposed as a compromise to combine the Russian and French propositions, limiting them to an expression of the desirability of granting a period of grace. Four different propositions were therefore before the Committee, Russian, French, Dutch and Swedish, but the preliminary discussions turned entirely on the question whether the concessions to be made to enemy shipping should be made obligatory or left optional. The Swedish proposition formed the starting-point for the Examining Committee, the obligatory character of the concessions to be made having failed to receive a unanimous acceptance chiefly owing to the opposition of Great Britain, France and Japan1 .British proposal. In the course of the examination of the Swedish draft the British Delegation presented a draft in five Articles. The draft Convention was adopted by the Committee, and subsequently by the Conference at its Seventh Plenary Meeting on the 27th September, 1907.
Article 1.The first Article states that it is desirable that merchant-ships belonging to one of the belligerents at the commencement of hostilities in an enemy port should be allowed to depart freely at once, or after a sufficient number of days of grace, and after being furnished with a pass to proceed direct to a port indicated. The words de faveur were added to délai at the request of the British delegate to show that the granting of the period of delay was not obligatory. By six to five, the Committee rejected the Swedish proposal to grant the days of grace for the purpose of allowing a ship to complete the unloading or loading of her cargo, other than contraband.
The practice of granting of days of grace remains therefore as it was before the Conference. The Powers have recognised its desirability, but no merchant-ship can demand it, nor will there be a legal ground of complaint if all enemy merchant-ships within a belligerent’s ports at the outbreak of war are ordered to leave immediately or after a “sufficient” period. Whether the expression “it is desirable” will be considered as equivalent to a command2 remains to be seen. States will probably act in the future as they have acted in the past. Captain Ottley stated that the British Government had every intention of adhering to the practice which it had observed during the past 50 years in granting days of grace, subject always to the reservation that the time allowed should not compromise its national interests3 . It was doubtless with a similar mental reservation that the other Powers accepted this Article. States will in the future as in the past consult their own interests in this matter, but their interests may not infrequently involve a consideration for the interests of neutrals. Each state will determine for itself whether the desire to injure its enemy by detaining his merchant-ships, which might be of the greatest value as auxiliary ships for the fleet, will “prevail over the fear of offending neutrals by causing a great dislocation of trade in which some of them are sure to be interested1 .”
The second paragraph of Article 1 recognises that it is desirable to allow days of grace to a ship which left its last port of departure before the commencement of the war and entered an enemy port in ignorance of the existence of hostilities. This has been the practice of states since the Crimean War. If such a ship has been visited by an enemy cruiser and an entry made in its log-book, that will be conclusive against its claim to any exemption from capture.
Article 2.Article 2 deals with the case of enemy ships of commerce unable to leave within the allotted time, or not permitted to leave. Such vessels would formerly have been liable to confiscation. Under this Article they cannot be confiscated, but are to be kept and handed back to the owners at the conclusion of the war, or if they are requisitioned, compensation is to be made.
Article 3.Article 3 exempts from capture enemy merchantmen met on the high seas which left their last port of departure before the outbreak of war and are in ignorance of its existence. They may be requisitioned or even destroyed subject to indemnities being paid. If they are aware of the outbreak of war, they can still be confiscated. This Article encountered considerable opposition from Germany and Russia, and at the Seventh Plenary Meeting of the Conference Baron Marschall von Bieberstein said: “The German Delegation is of opinion that these provisions establish an inequality between states in imposing financial burdens on those Powers which, in default of naval stations in different parts of the world, are not in a position to take vessels which they have seized into a port, but find themselves compelled to destroy them2 .” Germany and Russia made a reservation of this Article in signing the Convention.
The German delegate (Dr Kriege) had previously explained the views of his Government in Committee. Only the Powers, he said, which possess naval stations in different parts of the world can regularly exercise this right of seizure. Other Powers will often be unable to take ships they detain into port, and will have to destroy them, and therefore to bear the cost of such vessels; they will therefore have their financial burdens unduly increased as against Powers able to take such vessels into port and retain them till the end of the war3 . It would appear that Germany and Russia by not accepting this Article retain the right to capture enemy merchantships on the high seas which have left their last port before the outbreak of war, subject to any modifications which they may make by proclamation at the commencement of war. Furthermore German and Russian merchantships will under similar circumstances also remain liable to be captured subject to a like modification by the other belligerent (see Article 6).
The Article is an amelioration of the strict rules of existing law, though it falls short of recent practice. The exemption from capture provided by it will probably be found however not to be of much value in practice, as it will not often happen under modern conditions that ships will long remain in ignorance of the existence of war in any part of the world. The permission to destroy vessels ignorant of the existence of war was inserted on the suggestion of the Italian delegate to meet the case of states unable to take such vessels into their own ports for detention. Provision must be made for the safety of the persons and papers on board such ships.
Article 4.Article 4 provides that enemy cargo on the vessels mentioned in Articles 1, 2 and 3 is subject to the same treatment as the vessel. Germany and Russia made reservations on the second paragraph of the Article relating to cargoes on board the enemy merchantmen referred to in Article 3. The provision relating to cargo must be read subject to the Declaration of Paris.
Article 5.Article 5 imposes an important limitation on the foregoing Articles which it declares are inapplicable to merchant-ships whose construction indicates that they are destined for conversion into war-ships. This Article was inserted at the instance of the British delegate Lord Reay. The words originally proposed were, “navires marchands ennemis susceptibles d’être transformés en vaisseaux de combat.” This was altered by the Comité de rédaction to “navires marchands qui ont été désignés d’avance pour être transformés en bâtiments de guerre.” This phraseology was objected to by the German delegate who contended that all steamships, not only the great ocean-liners but smaller craft, might be of use in war for purpose of mine-laying and other subsidiary operations. He moved the rejection of the whole Article1 . This was opposed by the British and Japanese delegates. The French and Swedish delegates contended that ships of the class intended were always constructed under special orders of a Government, but the Belgium delegate denied this and desired to modify the phrase by substituting “susceptibles d’après leur état pour d’être” etc., but this was rejected and the motion of the German delegate for the rejection of the Article was carried by 8 votes to 5 with 2 abstentions. At a subsequent meeting, on the proposition of the Swedish delegate the Article was restored in the form in which it now appears. Russia and Germany have accepted this Article. The discussion, however, brought out the difficulties that may be expected to arise in construing the language in which the Article is framed, “dont la construction indique qu’ils sont destinés à être transformés en bâtiments de guerre1 .” The terms of this Article recall those of the Treaty of Washington whereby Great Britain and the United States agreed to use due diligence to prevent the fitting out, arming or equipping within the jurisdiction of either of the Powers of any vessel “which it has reasonable ground to believe is intended to cruise or to carry on war” against a Power with which it is at peace2 . The two Governments could not agree as to the meaning of this language; is there a likelihood of agreement on the meaning of the words “merchant-ships whose construction indicates that they are intended for conversion to war-ships”? “Experts are perfectly able to distinguish vessels built primarily for warlike use,” says Mr Hall, writing of the words cited from the Treaty of Washington, “but it is otherwise with many vessels primarily fitted for commerce. Perhaps few fast ships are altogether incapable of being so used as to inflict damage to trade....Mail steamers of large size are fitted by their strength and build to receive, without much special adaptation, one or two guns of sufficient calibre to render the ships carrying them dangerous cruisers against merchantmen3 .” Subsidised liners were the ships the Committee appear to have had in view; in the case of other vessels M. Fromageot states “the build (construction) of ships must serve to indicate the eventual destination.” The vessels referred to in the Article are not “primarily built for warlike use” but for commerce; will it be equally easy for experts to distinguish such of these as were built with a view to their eventual conversion into ships of war? Furthermore, what is a ship of war4 ?
The important alteration made in the rules of international law by the Convention is the abrogation of the rule of confiscation of enemy merchantships found in a belligerent port at the outbreak of war, unless they are “ships whose construction indicates that they are intended for conversion into warships,” but these can be requisitioned and must be paid for. Even if such ships are detained until the end of the war, and not used, immense loss will still be occasioned to their owners. The important qualification of Article 5 will probably considerably limit the application of this Convention.
Signatory Powers and reservations.The only Powers which have not signed this Convention are the United States, China and Nicaragua. The United States’ refusal is based on the ground that the Convention is an unsatisfactory compromise between those who believe in the existence of a right and those who refuse to recognise the legal validity of the custom which has grown up in recent years. “The Convention cannot be called progressive, for it questions a custom which seems generally established, and its adoption would seem to sanction less liberal and enlightened practice1 .” The reservations of Germany and Russia, the only two Powers making any, have already been dealt with2 .
Conversion of Merchant-ships into War-ships.
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 190-3, and No. 5 (1908); La Deux. Confér., etc. T. i. pp. 250-5; T. iii. pp. 825-830, 852-3, 884-3, 884-6; Livre Jaune, p. 96; Weissbuch, p. 9; Sir T. Barclay, Problems, etc. p. 67; N. Bentwich, War and private property, p. 82; A. Ernst, L’œuvre de la deux. Confér. p. 30; Halleck, Int. law (4th ed.), Vol. i. p. 587; A. S. Hershey, International law and diplomacy of the Russo-Japanese War, pp. 269, 281-2, 295-7; T. J. Lawrence, International Problems, etc. p. 110; Idem, War and Neutrality, etc. Chap. iii.; E. Lémonon, La seconde Conférence, etc. pp. 647-661; J. B. Moore, Digest of Int. Law, Sec. 1196; E. Nys, Le droit inter. Vol. iii. p. 140; J. B. Scott, Status of enemy merchant ships, Am. Journ. of Int. Law, Vol. ii. p. 259; S. Takahashi, International Law applied to the Russo-Japanese War, pp. 60-9; H. Taylor, Int. Law, Sec. 464; J. Westlake, War, pp. 39, 307; H. Wheaton, International Law (Atlay’s edition), Sec. 304.
[2 ]The Boedes Lust, 5 C. Robinson’s Reports, 245. See also the Johanna Emilie (1854), Spinks, p. 14; J. B. Scott, Leading Cases, Section 25 and note on p. 498.
[1 ]J. B. Scott, Am. Journ. of Int. Law, Vol. ii. p. 264; La Deux. Confér. T. iii. p. 826.
[2 ]S. Takahashi, op. cit. p. 64.
[3 ]Pistoye et Duverdy, Traité des prises maritimes, T. ii. p. 467 (quoted by M. Fromageot).
[1 ]La Deux. Confér. T. iii. p. 1150.
[2 ]Idem, T. iii. p. 828.
[1 ]The obligatory view was voted for by eight states, Germany, The United States, Austria-Hungary, Belgium, Norway, Holland, Russia and Servia. Four states voted against it, Great Britain, France, Japan and the Argentine Republic. Sweden did not vote. La Deux. Confér. T. iii. p. 936.
[2 ]J. B. Scott, Am. Journ. of Int. Law, Vol. ii. p. 266.
[3 ]La Deux. Confér. T. iii. p. 828.
[1 ]T. J. Lawrence, War and Neutrality, etc. (2nd ed.), p. 55.
[2 ]La Deux. Confér. T. i. p. 235.
[3 ]Idem, T. iii. p. 954.
[1 ]La Deux. Confér. T. iii. p. 1033.
[1 ]The German official translation is “deren Bau ersehen lässt, dass sie zur Umwandlung in Kriegschiffe bestimmt sind.”
[2 ]Treaty of Washington, Art. vi., De Martens, Nouv. Rec. Gén. Vol. xx. p. 702.
[3 ]Int. Law (5th ed.), p. 616. See also T. J. Lawrence, Int. Law, § 262.
[4 ]See also the discussion on the meaning of the expression bâtiments de guerre in the next Convention, post, p. 316.
[1 ]J. B. Scott, Am. Journ. of Int. Law, Vol. ii. p. 270.
[2 ]See supra, p. 304.
[P. 306, last line but one,]for “these” read “they.”