1110
THE NEW ZEALAND GAZETTE.
[No. 51

(B.) If the merchant-vessel does not obey this first intimation, and either refuses to hoist her flag or does not lay-to, a second gun will be fired, this time loaded, care being taken that the shot does not strike the vessel, though going sufficiently close to her bows for the vessel to be duly warned; and if this second intimation be disregarded, a third shot will be fired at the vessel, so as to damage her, if possible, without sinking her. Whatever be the damage caused to the merchant-vessel by this third shot, the commanding officer of the man-of-war, or captain of the privateer, cannot be made responsible.

Nevertheless, in view of special circumstances, and in proportion to the suspicion excited by the merchantman, the auxiliary vessel of war or privateer may delay resorting to the last extremity until some other measure has been taken, such as not aiming the third discharge at the vessel, but approaching it and making a fresh notification by word of mouth; but, if this last conciliatory measure prove fruitless, force will immediately be resorted to.

(C.) The visiting vessel will place herself at such distance as her commander or captain may think convenient from the vessel to be visited, according to circumstances of wind, sea, current, or the suspicion inspired by the said vessel; and if these circumstances make it advisable for the boat about to make visit to approach on the windward side and go to leeward on returning, there is no reason why she should not do so.

But if, by existing treaties between the nations to which the vessels respectively belong, the distance to be kept is specified, such a clause of conventional law shall be respected, if the circumstances of wind, sea, or current above-mentioned permit.

(D.) The visiting vessel will send to the merchant-vessel a boat with an officer, who will effect the visit in question under a verbal commission from his commanding officer. Said officer may board the merchant-vessel in company with two or three of the crew of the boat, but it will be left to his discretion whether he shall do so or go alone.

(E.) The visiting officer will inform the captain of the merchant-vessel that, under commission from the commander of the Spanish ship of war or of the auxiliary cruiser (here follows name of ship of war or auxiliary cruiser), or from the captain of the privateer (here follows name of vessel), he intends to effect a visit, and will request him to produce his sailing-papers, or official document which takes their place, in proof of the nationality of the vessel therein stated being that of the flag which he has hoisted, and to show the port to which the vessel is proceeding.

Should the first point be satisfactorily proved, and should the port of destiny prove to be a neutral one, the visit is thereby concluded.

But should the vessel be proceeding to a port belonging to the enemy of the nation to which the visiting vessel belongs, the officer will ask the captain of the merchant-vessel for the documents in which the nature of the cargo is stated, in order to ascertain if there be contraband of war. Should there be none the visit is definitely concluded, and the neutral vessel is at liberty to proceed on its voyage; but should there be contraband its capture is proceeded with. But no search may, in these circumstances, be made.

5. The visiting officer should have instructions from his commanding officer authorising the visited vessel to continue her voyage if the visit has presented no difficulties, in order that the delay may not be longer than is absolutely indispensable.

6. If the captain of the visited vessel asks to have the visit certified, the visiting officer will accede to his request, and will insert a note in the sheet for the day in the ship's books in the following form:—

"The undersigned (rank in the navy), sailing on the (gunboat, cruiser, &c., of His Catholic Majesty, named “ ,” or the auxiliary cruiser or privateer), whose commanding officer is (rank and name), certifies that, this day, at (hour of morning or evening), under a verbal commission from the said commanding officer, he has carried out the visit of the (class of vessel, name, and nationality of merchant service), Captain (name of captain), and ascertained from the papers shown to him the legitimacy of the flag which she flies, and the neutrality of her cargo.

"[Date.]

"[Signature of visiting officer.]

"[Seal of visiting vessel.]"

7. The visit will likewise be recorded in the books of the visiting vessel, the following circumstances being stated:—

(A.) Details of the intimation or intimations given to the visited vessel.

(B.) Hour of its laying-to.

(C.) Name and nationality of visited vessel and captain thereof.

(D.) Manner in which visit was effected, and its result, stating name of officer who executed it.

(E.) Hour at which vessel was authorised to proceed.

8. The record of the visit, which, as stated in Article 6, can be made at the wish of the captain of the visited vessel, will become an indispensable formality should the vessel contain wounded or sick soldiers, subjects of the enemy, for in such a case all such persons will, by the mere act of visit, be incapacitated from bearing arms again during the war, in accordance with the 1st paragraph of the Xth additional article of the Geneva Convention.

The visiting officer will therefore in such a case make a notification of the same to the chief of the expeditionary force, and will make a note in the books of the visited vessel in the form prescribed in Article 6, with the following addition:—

"This vessel contains (number of sick and wounded) individuals (of the army or navy or both) sick and wounded, subjects of the enemy, all of whom, by the fact of this visit, are incapacitated from bearing arms again during the war, according to paragraph 1 of the Xth additional article of the Geneva Convention, of which I have made notification to the commander of the expeditionary force, who stated that he was (here follow rank and name)."

9. The visit is not an act of jurisdiction on the part of the belligerent; it is a natural means of legitimate defence allowed by international law, lest fraud and bad faith should assist the enemy. This right should therefore be exercised with the greatest moderation by the belligerent, special care being taken to avoid causing the neutral any extortion, damage, or trouble that is not absolutely justifiable.

In consequence of this, the detention of the ship visited should always be as short as possible, and the proceedings restricted as far as they can be, their exclusive object being, as explained, for the belligerent to ascertain the neutrality of the ship, and, in case of its neutrality (if bound for a port of the enemy), the inoffensive and neutral description of its cargo.

It is not necessary, therefore, to demand during the visit any other documents than those proving these two conditions, for what the belligerent requires is to prevent any damage, favouring, or assisting the enemy; to prevent assistance and help being furnished to them that may contribute directly to the prolongation of the war; and not to be assured that all ships belonging to neutral Powers are provided with all the documents required by the laws of their country.

10. In consequence of the visit the vessel is captured in the following cases:—

(1.) If the nationality of the vessel proves to be that of the enemy, unless covered by the immunities established by the Geneva Convention by which Spain is bound.

(The said exceptions are given at the end of these instructions.)

(2.) If active resistance is offered to the visit—that is, if force is employed to escape it.

(3.) If a legal document to prove the nationality cannot be produced.

(4.) If, bound for the enemy's ports, the vessel cannot produce a document proving the nature of the cargo.

(5.) If the cargo is composed in whole or more than two-thirds of contraband of war.

In the case of the illicit part of the cargo being less than two-thirds, only the articles which are contraband of war will be confiscated, and to unload them the ship will be conducted to the nearest and most convenient Spanish port.

It must be understood that goods directly and immediately affecting the war are contraband only when destined for the enemy's ports, for when they are consigned to a neutral port these goods are munitions of war, but not contraband.

But if a vessel is despatched for a neutral port in proper form, but makes for a port of the enemy, then, if found near to one of these ports, or sailing in quite a different direction than the proper one shown in her papers, she shall be captured if the captain cannot prove that force majeure drove him from his proper course.

(6.) If she carries on behalf of the enemy officers, troops, or seamen.

(7.) If she carries letters and communications of the enemy, unless she belong to a marine mail-service, and these letters or communications are in bags, boxes, or parcels with the public correspondence, so that the captain may be ignorant of their contents.

(8.) If the vessel is employed in watching the operations of the war, either freighted by the other belligerent or paid to perform this service.

(9.) If the neutral vessel takes part in this employment, or assists in any way in such operations.

The vessel will also be captured when during the visit duplicate or false papers are found, since such cases fall under the regulations contained in clauses (3) and (4) or in both, since neither false nor duplicate papers can serve to justify the conditions referred to.

Neither an attempt at flight to escape visit, nor simple suspicion of fraud respecting the nationality of the vessel or the nature of its cargo, authorises the capture of the vessel.