act.

These reasons do not apply to an insurance upon the innocent goods of an innocent shipper, which is, doubtless, valid. He was no party to the illegal transaction, had no power to prevent it, and, it must be presumed, had no knowledge of its existence. It is, however, doubtful whether the insurer is liable even to the owner of innocent goods for a loss arising from condemnation or detention, by his own government, of the carrier ship.' These views are contested by some of the Continental publicists.'

The carriage by a neutral of despatches, or of persons in the naval or military service of a belligerent, will be discussed in chapter xxviii., §§ 17 and 18.

'Arnould, On Insurance, vol. i. p. 740; Duer, On Insurance, vol. i. pp. 642, 643; Bedarride, Droit Maritime, § 1095 et seq.

The English law seems to have omitted to enact that contraband must be specified in the policy of insurance. But the assurer would not be liable unless aware of the risk. According to the French law, contraband of war must be specially and specifically described in the policy of insurance, unless the assured be ignorant of the nature of the goods. (Ord. de la Marine, liv. iii. t. vi. art. 31.)

Although it is not a breach of neutrality to carry enemy's goods, not contraband, from a neutral to an enemy's country, no insurance can be effected in the belligerent country; but query whether since the Declaration of Paris, 1856, such an insurance might not be valid.

239

CHAPTER XXVII

RIGHT OF VISITATION AND SEARCH

1. General exemption of merchant vessels on the high seas-2. Right of search a belligerent right-3. British claim of a right of visit in time of peace-4. Denied by the United States-5. Opinions of American publicists-6. Of Continental writers-7. Of Lord Stowell -8. Distinction between pirates and slavers-9. Great Britain finally renounces her claim of right of visit-10. Visit and search in time of war-11. English views as to extent of this right-12. Views of American writers-13. Limitations imposed by Continental publicists--14. Force may be used in the exercise of this right-15. But must be exercised in a lawful manner-16. Penalty for contravention of this right-17. English decision as to effect of convoy-18. Ships of war exempt from search-19. Merchant ships under their convoy -20. Treaties respecting neutral convoy-21. Opinions of publicists -22. Neutral vessels under enemy's convoy-23. Resistance of master on cargo-24. Neutral property in armed enemy vessel-25. Documents requisite to prove neutral character-26. Concealment of papers-27. Spoliation of papers-28. Use of false papers-29. Impressment of seamen from neutral vessels-30. American rule as defined by Webster.

of mer

on the

§ I. IT has been stated in chapter vii. that every merchant General vessel on the high seas is regarded, in international law, as a exemption part of the territory of the State to which it belongs. To enter chant into such vessel, or to interrupt its course, by a foreign power vessels in time of peace, or (it being neutral) by a belligerent in time high seas of war, is an act of force, and is, primâ facie, a wrong, a trespass, which can be justified only when done for some purpose, allowed to form a sufficient justification by the law of nations. The right of a vessel of one State to visit and search a vessel of another State on the high seas, in any case, is therefore an exception to the general rights of property, jurisdiction, equality, and independence of sovereign States; to justify such an act it must be shown that the particular case comes clearly within the exceptions to this rule, which have been established by the positive law of nations, or by treaty stipulations between the parties.'

1 Webster, Dip. and Off. Papers, p. 143; Wildman, Int. Law, vol. ii. p. 40; Lawrence, Visitation and Search, p. 4; Hubner, Saisie de Bâti

Right of search a

belligerent right

Claim of

to visit

in time of peace

§ 2. The right of search upon the high seas is now universally regarded as a belligerent right which cannot be exercised in time of peace, except when it has been conceded by treaty or where there is suspicion of piracy or crime. Whatever difference of opinion may formerly have existed on this point, this right of search in time of peace has been disclaimed by the British Government-the only maritime power which was supposed to advocate it as a principle of the law of nations. This general rule with respect to vessels on the high seas does not, of course, apply to the execution of revenue laws or other municipal regulations in the ports and bays, or within one marine league of the coast.1

§ 3. The British Government at one time attempted to England draw a distinction between the right of visit and the right of search, and while it distinctly disavowed any claim to exercise the latter in time of peace, it insisted upon the right of visit for the purpose of ascertaining whether a merchant vessel is justly entitled to the protection of the flag which she may happen to have hoisted, such vessel being in circumstances which render her liable to suspicion; the right 'to know whether the vessel pretending to be American, and hoisting the American flag, be bonâ fide American;' and yet, says Lord Aberdeen, 'if, in the exercise of this right, either from involuntary error, or in spite of every precaution, loss or injury should be sustained, a prompt reparation would be afforded.'"

ments, pt. ii. ch. iii.; Kluber, Droit des Gens Mod., § 293, a; Jouffroy, Droit Maritime, p. 213; Heffter, Droit Int., § 167; Hautefeuille, Des Nations Neutres, tit. xi. ch. i.; the 'Antelope,' 10 Wheat. R., 66.

Ortolan, Dip. de la Mer, tome ii. ch. vii.; Lord Aberdeen to Mr. Everett, December 20, 1841.

2 Phillimore, On Int. Law, vol. iii. § 326; Riquelme, Derecho Púb. Int., lib. i. tit. ii. cap. vii.; British and Foreign State Papers, vol. xxx. p. 1165.

But maritime States have always claimed a right of visitation and enquiry, within those parts of the ocean adjoining to their shores, which the common courtesy of nations has, for their common convenience, allowed to be considered as parts of their dominions for various domestic purposes; this has nothing in common with a right of visitation and search upon the unappropriated parts of the ocean in time of peace. (And see Le Louis,' 2 Dods., 246.)

Extract from the 'Black Book of the Admiralty,' No. B, 8:-'Item, if any of our ships or vessels do meet upon the sea or in ports any other vessels, which do make any resistance or defence against those of our ships or vessels, then it is lawful for our men to assail the other as

denied

by the

States

§ 4 The Government of the United States, on the other Claim hand,' said Mr. Webster, maintains that there is no such well-known and acknowledged, nor, indeed, any broad and United generic difference between what has been usually called visit, and what has been usually called search; that the right to visit, to be effectual, must come, in the end, to include search.' He thus describes the views of the United States on the means which a vessel of war may use in time of peace, to ascertain the character of any other vessel on the high seas :-'As we understand the general and settled rules of public law, in respect to ships of war sailing under the authority of their enemies, and by force to seize and bring them before the Admiral, entirely as they have taken them, without pillaging or indamaging them, and there to receive what the law and custom of the sea wills and requires.' Sir Travers Twiss, in a note to this paragraph, says that the law and custom on this point are set forth in a letter from Edward III. to Peter, King of Aragon.

An Ordinance of Parliament, November 1643, enabling certain persons to set forth ships for the guarding of the seas, directs that, if such persons or any ships by them employed shall happen, upon the seas or in any harbour or creek, to meet with any ships that shall not willingly yield themselves to be visited, but shall make resistance by force and violence, then they shall by all means possibly and with all force compel them to yield and submit themselves to reason and justice, although it doth fall out that, by fighting with them, one or more of them be maimed, hurt, or slain in the resistance.

A court martial was held in August 1812, in the Downs, on the Hon. Henry Blackwood, commander of his Majesty's ship 'Warspite,' upon a charge of having caused the death of a master of a merchant schooner in the Mediterranean, by ordering several guns to be fired into her. The merchant vessel had not obeyed the usual means taken to bring her to, but persisted in her course and made more sail. Captain Blackwood, considering it imperious on him to ascertain that she was not a privateer (for he knew that several were near), went in chase and fired at her, when, unfortunately, the master was killed. The mate of the schooner represented the circumstances to the Admiralty, and the court martial was accordingly held. No person belonging to the schooner appeared to substantiate the charge of murder, although they had received notice of the trial. The court martial not only acquitted Captain Blackwood, but adjudged his conduct to have been strictly correct, and that he could not have acted otherwise. (Ann. Reg., 1812, p. 110.)

·

In 1838 the British packet 'Express,' on her way from Vera Cruz to Sacrificios, was stopped by a French ship of war, and her pilot taken on board the French ship. The French Government apologised for the occurrence, stating that the officer who had given the order was not aware that the packet was an English vessel. (Parl. Papers of 1839.) In 1855 the El Dorado,' a United States mail vessel, was stopped upon the high seas by a Spanish frigate, and was boarded by a Spanish officer and required to produce papers. It appeared that the cruiser was only ordered to visit or search foreign vessels when within the maritime jurisdiction of Spain. The apology was considered to be *technically satisfactory' by the United States Government.

VOL. II.

R

Government, "to arrest pirates and other public offenders," there is no reason why they may not approach any vessel descried at sea, for the purpose of ascertaining its real character. Such a right of approach seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is clear that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage, in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. Her right to the free use of the ocean is as perfect as that of any other ship. An entire equality is presumed to exist. She has a right to consult her own safety, but, at the same time, she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers, either as to delay, or the progress or course of her voyage, but she is not at liberty to inflict injuries upon other innocent parties, simply because of her conjectural dangers. But if the vessel thus approached attempts to avoid the vessel approaching, or does not comply with her commander's order to send him her papers for his inspection, nor consent to be visited or detained, what is next to be done? Is force to be used? And if force be used, may that force be lawfully repelled? . . . Suppose that force be met by force, gun returned for gun, and the commander of the cruiser, or one of his seamen, be killed, what description of offence will have been committed? It may be said, in behalf of the commander of the cruiser, that he mistook the vessel for a vessel of England, Brazil, or Portugal; but does this mistake of his take away from the American vessel the right of self-defence? The writers of authority declare it to be a principle of natural law, that the principle of selfdefence exists against an assailant who mistakes the object of his attack for another whom he had the right to assail.' He also discussed the consequences of admitting the claim as a matter of right, for, if a right, it had its correlative duties.'

Webster, Dip. and Off. Papers, pp. 164, 165, 166, 167; Webster, Works, vol. vi. pp. 335, 336, 338, 339; Bello, Derecho Internacional, pt. ii. cap. viii. § 10; Wheaton, Hist. Law of Nations, pp. 706 et seq.