International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
History
International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 189. Instances have occurred when enemy vessels which were forced by
stress of weather to seek refuge in a belligerent's harbour were granted
exemption from seizure.[376] Thus, when in 1746, during war with Spain,
the _Elisabeth_, a British man-of-war, was forced to take refuge in the
port of Havanna, she was not seized, but was offered facility for
repairing damages, and furnished with a safe-conduct as far as the
Bermudas. Thus, further, when in 1799, during war with France, the
_Diana_, a Prussian merchantman, was forced to take refuge in the port
of Dunkirk and seized, she was restored by the French Prize Court. But
these and other cases have not created any rule of International Law
whereby immunity from attack and seizure is granted to vessels in
distress, and no such rule is likely to grow up, especially not as
regards men-of-war and such merchantmen as are easily convertible into
cruisers.
[Footnote 376: See Ortolan, II. pp. 286-291; Kleen, II. § 210, pp.
492-494.]
[Sidenote: Immunity of Hospital and Cartel Ships.]
§ 190. According to the Hague Convention, which adapted the principles
of the Geneva Convention to warfare on sea, hospital ships are
inviolable, and therefore may be neither attacked nor seized; see below
in §§ 204-209. Concerning the immunity of cartel ships, see below in §
225.
[Sidenote: Immunity of Mail-boats and of Mail-bags.]
§ 191. No general rule of International Law exists granting enemy
mail-boats immunity from attack and seizure, but the several States have
frequently stipulated such immunity in the case of war by special
treaties.[377] Thus, for instance, Great Britain and France by article 9
of the Postal Convention of August 30, 1860, and Great Britain and
Holland by article 7 of the Postal Convention of October 14, 1843,
stipulated that all mail-boats navigating between the countries of the
parties shall continue to navigate in time of war between these
countries without impediment or molestation until special notice be
given by either party that the service is to be discontinued.
[Footnote 377: See Kleen, II. § 210, pp. 505-507.]
Whereas there is no general rule granting immunity from capture to enemy
mail-boats, enemy _mail-bags_ do, according to article 1 of Convention
XI., enjoy the privilege of such immunity, for it is there enacted that
the postal correspondence of neutrals or belligerents, whether official
or private in character, which may be found on board a neutral[378] or
enemy ship at sea, is inviolable, and that, in case the ship is
detained, the correspondence is to be forwarded by the captor with the
least possible delay. There is only one exception to this rule of
article 1, for correspondence destined to or proceeding from a blockaded
port does not enjoy the privilege of immunity.
[Footnote 378: See below, §§ 319 and 411.]
It must be specially observed that postal correspondence, and not
parcels sent by parcel post, are immune from capture.
III
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