RESISTANCE TO VISIT AND SEARCH.

As already indicated (y), the right to visit and search neutral vessels in time of hostilities is inseparable from the larger belligerent right to seize and confiscate contraband of war,— or, indeed, from that, where not waived by treaty, of the capture of enemy property generally. The circumstances and manner in which the right of visit and the attendant, but not necessarily consequent, right of search are to be exercised, having already been discussed, they need not now be further reviewed.

Belligerents having a right to visit and, if thought necessary, to search neutral vessels, neutrals lie under the corresponding obligation to permit such visit and search. The penalty attaching to breach of this neutral obligation is confiscation. In applying this penalty, no regard is to be paid to the national character of the vessel or of the cargo, and the latter has to share the condemnation of the former. "The right of visiting and searching merchant ships upon the high seas," said Sir W. Scott, in The Maria (2), “whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. . . . . And the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search." Resistance to search is regarded as amounting to a forfeiture of the vessel's neutrality, and the cargo follows the fate of the ship. If, however, the vessel prove to be the property of the enemy, the cargo is not involved unless the (z) 1 Rob. 340.

(y) P. 144, supra.

cargo-owner concurred in the act of the captain (a). There is nothing illegal in the resistance of a belligerent master. He has everything to gain and not much to lose by resisting; and in the American courts it was, in The Nereide (b), decided that his action did not bind neutral cargo not participating in it. Sir W. Scott, however, in The Fanny (c), asserted the directly contrary doctrine, declaring that the American prize courts are justly entitled to condemn property taken by an American cruiser from an armed vessel of the enemy. Three years later (in 1818), the American courts, in reviewing the judgment of The Nereide, affirmed the principle then laid down, and expressed the opinion that the British courts would eventually admit its justice (d).

If the neutral master be bonâ fide ignorant of the existence of hostilities, and, by consequence, that he has any neutral duties to perform, his resistance to search will not involve confiscation. This was decided by Sir W. Scott in the case of two Spanish vessels San Juan Baptista and La Purissima Conception (e), in which case, moreover, an award of compensation was made to the crews of these vessels, the captors having wrongfully handcuffed them.

Neutral Goods on Armed Belligerent Vessels.-The cases of The Nereide and The Fanny, just mentioned, afford instances of the shipment of neutral goods on board armed belligerent vessels. The American courts decided that it was no breach of neutrality to make such a shipment, and that neither the goods nor the neutral owner were to be chargeable with the consequences of the captain's resistance, unless the goods

(a) The Catharina Elizabeth, 5 Rob. 232.

(b) 9 Cranch, 388.

(c) 1 Dods. 443.

(d) The Atalanta, 3 Wheat. Rep. 409.

(e) 5 Rob. 34.

owner concurred in the act. The British courts decided just the other way. They decided that while a neutral is entitled to put his goods on the merchant vessel of a belligerent, he is not entitled to ship by an armed belligerent vessel. And that if he does so ship he must be deemed to have showed an intention to resist visit and search, thus placing himself under enemy protection and forfeiting his neutrality. Whether the Declaration of Paris is to be deemed, as between the signatories to it, to have wiped this offence off the slate, must be left to conjecture.

Neutral Goods shipped under Convoy.-The principle laid down by the British courts, that the shipment of neutral goods by an armed vessel of the enemy is to be regarded as evidence of an intention to resist visit and search, applies equally to the placing of neutral goods under protection of convoy. Whether the convoy be that of an enemy or of a neutral, the implication is that resistance to search is intended; and the neutrality of the goods is ipso facto forfeited. The presumed intention to resist may never be carried into effect, but this is not material (ƒ). This position may, of course, be affected by special treaty provisions, but in the absence of such provisions and unless, again, the Treaty of Paris is to be held to have sanctioned such neutral conduct-the law will be as laid down by Sir W. Scott, in 1799, in the celebrated case of the Swedish convoy, under protection of which The Maria (ƒ) and other vessels seized were sailing. The American Government, however, in 1810, denied the right of Denmark to seize American vessels which had sailed on the outward voyage under protection of British convoy, and after twenty years of negotiations Denmark agreed to compensate America for the seizure of the vessels. War was then prevailing between

(f) The Maria, 1 Rob. 340; The Elsabe, 4 Rob. 408.

Great Britain and Denmark, and several American vessels engaged in carrying naval stores between American and Russian ports had been seized by Denmark on the return voyage, in accordance with the above right, which right was maintained by Denmark as well as by this country.

Insurance.

If a vessel "warranted neutral" under the marine policy resist the right of search or sail under convoy or if neutral goods be shipped by an armed belligerent vessel; this is to be regarded as a breach of warranty which voids the policy (g). But such illegal acts might, perhaps, in some cases, be attributed to barratry on the part of the captain and so claimed against the underwriters.

It is the duty of a neutral to submit to lawful search, and if the result of such search be that the vessel is carried to a port for adjudication, it is equally the duty of the neutral master to submit. Resistance to search involves the ship, as has been seen, in condemnation; and any attempt to resist the carrying into port by rescuing the vessel from the captors also exposes the vessel to this sentence. This subjectAttempt at Rescue-may be next reviewed.

(9) Arnould, 5th ed. pp. 609, 763.

ATTEMPT AT RESCUE.

Rescue, as we have already seen (h), is technically distinct from what is termed Recapture; the one being the action of those on board the vessel rescued, the other the result of efforts from without. If a neutral vessel be seized and taken towards port for adjudication, and the master and crew rise and attempt to rescue her from her captors, such an attempt is a breach of neutral obligation, and involves confiscation. The Dispatch (i) was a Danish vessel recaptured after a rescue effected by her crew. The Court condemned the vessel "on the ground of the parties having declared themselves enemies by this act of hostile opposition to lawful inquiry."

If the vessel be enemy property, however, the master may look upon her as already condemned, and beyond the risk of harsh usage and personal inconvenience to himself and crew, he may be said to have nothing to lose by an attempt at escape, and there is nothing unlawful in the attempt (j). He is, at the same time, under no obligation to make such attempt, however meritorious such conduct might be. "Seamen," said Sir W. Scott, "are not bound by their general duty as mariners to attempt a rescue; nor would they have been guilty of a desertion of their duty in that capacity if they had declined it. It is a meritorious act to join in such attempts; but it is an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship in discharge of any official duty, either ordinary or extraordinary "(k).

(h) P. 126, supra.

(i) The Catharina Elizabeth, 5 Rob. 232; The Short Staple v. The United States, 9 Cranch, 55; The Dispatch, 3 Rob. 278; The Washington, 2 Act. 30, n.; The Franklin, 2 Act. 109.

Vide also sub (i) generally. Vide also p. 63, supra.

(j) The Catharina Elizabeth, 5 Rob. 232. (k) The Two Friends, 1 Rob. 271.