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Right of Search

Updated on August 27, 2010

In international law the right of search is the right of the lawfully commissioned cruisers and war ships of a belligerent power to stop and examine on the high seas the merchant vessels of neutral powers in order to determine whether they are carrying contraband goods, engaging in unneutral service, attempting to run a blockade and the like. It is ancillary to the right of capture, for the liability of ship or goods to capture often can be determined only after an inspection of its papers and an examination of its cargo. This right has long been recogconized as one which belligerents are lawfully entitled to exercise.

The right of visiting and searching merchant ships upon the high seas, said the great English admiralty judge, Sir William Scott, in the case of the Maria in 1799, "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 - this right is so clear in principle, that no man can deny it who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. The right, however, is one which belongs only to belligerents; it cannot be exercised by insurgents whose belligerency has not been recognized. Likewise, it is limited to merchant vessels and cannot be exercised against public vessels of neutral powers and of course it can be exercised only on the high seas.

Neutral vessels under convoy are exempt from search. Nor may it be exercised in time of peace except where the right has been granted by treaty, as it has been done to a limited extent for the purpose of putting an end to the slave trade. The assertion and exercise of such a claim by Great Britain during the early part of the 19th century was vigorously contested by the United States and in 1858 it was definitely abandoned by the British government. There are certain well-recognized rules governing the exercise of the right. The pursuing cruiser may, if it wishes, chase under false colors but before beginning the search the true flag must be hoisted. Resistance to the exercise of the right of search renders the vessel and its cargo liable to capture and condemnation. It is customary to summon the vessel to stop by firing a blank cartridge, as a signal to heave to. This is called the semonce or affirming gun.

A searching party then goes aboard, examines the ship's papers with a view to verifying its nationality, investigates the nature of the cargo and inquires into the ports of departure and destination. There are well-settled rules regarding the number of men who may constitute the searching party, the number and kind of arms they may take aboard, the manner in which the search shall be conducted, and the like. Nearly all prize regulations stipulate that the crew shall be treated courteously and that the vessel shall be subjected to as little delay and inconvenience as possible. If the search reveals the presence of contraband, evidence of an intention to violate a blockade, or the like, the vessel may be seized, taken into a home port and placed in the custody of a prize court in order that the validity of the capture may be judicially determined. Otherwise the searched vessel should be released without delay and allowed to proceed on its voyage.

Early in World War I the United States government protested against the action of British cruisers for taking American vessels into distant ports "on suspicion not amounting to evidence" and for detaining them for long periods of time for the purpose of discovering evidence of hostile destination. The United States government contended that the right of search could only be exercised on the high seas at the time and place of capture, and if the examination did not show the presence of contraband or intent to violate a blockade the vessel should be released.

To this protest the British government replied that effective searches at sea under modern conditions were impossible. Modern ships are so large and their cargoes so huge that if the right of search is to be effective it is necessary that the ships be taken into port and the cargoes removed in order that each parcel may be examined or weighed. The evidence in many cases showed that contraband articles like rubber and copper had been packed in bales of cotton and the presence of such articles could be determined only by a more thorough examination than was possible at sea. To take a ship into port, it was argued, was not the assertion of a new belligerent right but rather the adaptation of an existing right to modern conditions of commerce.

It has been suggested that the necessity of detention in such cases and with it the ruinous delays to which shippers are exposed might be removed by the adoption of a system of official certification whereby neutral vessels could carry, if they chose, satisfactory assurances that their cargoes consisted only of the goods described in their manifests. In some instances during the war such certificates were in fact issued by the United States customs officials and in other cases by British consuls under whose supervision the cargoes were laden on board, but the British government declined to recognize them as conclusive, on the ground that the certificates afforded no assurance against subsequent augmentation of the cargo at sea. In some cases, treaties have been concluded between the United States and foreign powers providing that certificates of this kind shall be accepted by the contracting parties, if one should be belligerent and the other neutral, as conclusive that the cargo is not contraband.

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