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price for the Edna, or to have substantial compensation for her use, contributed to delay of the trial about as much as did the action of the Crown.

And yet, whatever may have been the responsibility of the respective parties, it is none the less a fact that the Crown used the vessel for three years, and has been permitted so to do without payment of compensation in any form or guise. In my opinion, this result, whatever may be the state of prior decisions, is essentially unjust. It will be recalled that Lord Sumner, in delivering the opinion of the Privy Council, said that the allowance of damages and costs is largely a matter of discretion. . . . However, his Lordship proceeded to indicate very clearly that captors usually are the beneficiaries of the court's discretion. As he did so, he gave recognition to the fact that the result of the Edna case "may seem to be not without some suspicion of paradox in law". While it would seem that courts, and particularly those of last resort, in cases such as this, should have little difficulty in obviating all appearance of paradox in their decisions, they have not always hastened to do so. This appears to have been particularly true in prize matters. Consequently, in view of the harshness that has characterized this branch of jurisprudence, I am compelled to say that claimants have obtained a result which, however disappointing, would frequently be regarded in prize cases as an achievement of justice. But if the result be divorced from the rule of stare decisis, and be viewed in the light of fair and just dealings, claimants are entitled to some consideration. That they suffered grievous loss in being deprived of use of the Edna for more than three years must be admitted. Great Britain was the beneficiary of that loss for a period that was longer than her necessities and her rights as a belligerent reasonably required. While I fully recognize the immunity which has attached itself to sovereignty, and although I appreciate the respect which international tribunals have accorded such immunity, and the tolerance they have had for the rights of warring governments, I am convinced that, as an arbitrator, I am in duty bound to conclude that claimants, in part at least, have a just grievance.

Claimants, I think, are not entitled to compensation for use of the Edna for such period as reasonably was necessary for the Crown to obtain an adjudication upon the charges made against the Edna. Neither can they, as heretofore said, rightfully ask compensation for such use over the time that was consumed by their own laches, or such as resulted from their desire to obtain a good price from the British government. But, making full allowance for these considerations, I think it safe to say, although not with entire accuracy, that the dilatory course pursued by the Crown delayed the prize proceedings for one year beyond the date upon which they reasonably should have been brought to finality. Whatever may be the necessities of war, they ought not to be allowed to serve as excuses for beclouding, if not obliterating, the just rights of neutrals.

My finding, therefore, is that the claimants are entitled, in the nature of demurrage, to have upon the claim now before me, such sum of money (at the rate of exchange prevailing on May 8, 1919)

as will represent the amount they would have earned as charter hire had the Edna, as a neutral vessel within the Port of London, upon May 8, 1918, been requisitioned by the British government for a period of one year at the rate that, upon such date, was being paid as requisition hire by that government for steamers of the size and class of the Edna.

All other items for which indemnification is asked, saving interest, will be disallowed for the reasons that such items, in view of the probable cause which the Crown had in seizing the Edna, would necessarily have been borne by claimants in the normal and regular course of prize court events. These items are properly chargeable to the events giving rise to the probable cause that justified capture of the boat.

Coming now to the question of interest, the agreement reached between the United States and Great Britain on May 19, 1927, does not specifically contemplate that interest should be paid upon such claims thereunder as receive favorable recognition by this government. Whether interest shall attach to an allowance of a claim such as is here advanced, depends, very often, upon the action of the Congress. But, in this instance, the Congress has not acted. Having in mind, however, that the assumption of liability on this claim by the United States did not come about until May 19, 1927, and appreciating that only the sums saved to the United States by such agreement appear to be intended for the satisfaction of those claims of American nationals which fall within the scope of paragraph (2) of Article II, I should refrain from making an award of interest on the principal sum that I have decided should be received by claimants. . . . it is my thought that, if Congress determines that claims established under the agreement should carry interest, the calculation thereof should be from May 19, 1927. I think, too, that the rate of any such calculation, in consideration of conditions existing over the greater portion of the intervening period, should not exceed four percentum per annum.

Decision of the arbitrator (Judge Knox), Dec. 20, 1934, MS. Department of State, file 341.115Su2/180; H. Doc. 164, 74th Cong., 1st sess.; 34 A.J.I.L. (1940) 737, 747-748, 749-751.

The Secretary of State recommended payment of the award; the Committee on Claims of the House of Representatives recommended its payment with interest; and Congress made the necessary appropriation. Payment with interest from May 19, 1927 was made to the claimants. Secretary Hull to President Roosevelt, Apr. 18, 1935, MS. Department of State, file 341.115Su2/199; H. Rept. 1358, 74th Cong., 1st sess.; 49 Stat. 2150. The General Accounting Office to the Department of State, Apr. 6, 1936, MS. Department of State, file 341.115Su2/220.

For the arrangement for arbitration of this claim, see the Legal Adviser of the Department of State (Hackworth) to Harvey D. Jacob, Dec. 9, 1932, MS. Department of State, file 341.115Su2/109; Mr. Jacob to Mr. Hackworth, Dec. 10 and 17, 1932, ibid. /110, /113; the Acting Secretary of State (Phillips) to Judge Knox, Jan. 20, 1934, ibid. /162.

CAPTURE IN NEUTRAL WATERS

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Article III of Hague Convention XIII of 1907 provides:

When a ship has been captured in the territorial waters of a neutral Power, this Power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew.

If the prize is not in the jurisdiction of the neutral Power, the captor Government, on the demand of that Power, must liberate the prize with its officers and crew.

2 Treaties, etc. (Malloy, 1910) 2352, 2359.

In giving its advice and consent to the adherence of the United States to this convention, the Senate resolved:

". . . That the United States adheres to this convention with the understanding that the last clause of Article III implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction." Ibid. 2366.

"... What is the legal effect of a capture made within the recognized territorial waters of a neutral power? . . . The prize tribunals and sometimes the prize regulations of states (for example, Germany and France) treat such captures as absolutely illegal irrespective of whether the neutral power in whose waters the capture was made, intervenes or not; others, notably those of Great Britain and the United States, consider them as being invalid not as regards the opposing belligerent, but only as against the neutral whose territorial sovereignty has been violated and then only when it has protested and demanded restitution of the ship and the payment of damages." Garner, Prize Law During the World War (1927) 227–228.

A Belgian vessel captured by a German warship near a Swedish island had been condemned by the Kiel Prize Court. The decision was reversed by the German Imperial Supreme Prize Court on the ground that the capture had taken place in neutral territorial waters, the court stating:

The condemnation of a captured vessel can only be decreed if the court has been able to convince itself that the capture took place outside of neutral waters. If it took place in the territorial waters of a neutral state, the captor state cannot derive any rights for itself therefrom

...

The Ambiorix (July 11, 1916), I Entscheidungen des Oberprisengerichts in Berlin (1918) 170; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 131, 133, translation.

In 1915 a neutral Norwegian vessel took on at Baltimore a cargo of coal and three persons connected with the German Government who set up their own wireless set. The vessel called at Montevideo and later entered the Strait of Magellan, where it was stopped by a British

cruiser. Certain wireless messages and other papers were destroyed at the time of seizure. The vessel was taken to the Falkland Islands, and prize-court proceedings for condemnation on the grounds of unneutral service were instituted there but were subsequently transferred to England. Counsel for the ship-owners claimed that the vessel was immune from capture because it was within the territorial waters of a neutral state at the time of seizure. Sir Samuel Evans, speaking for the Prize Court, said:

against

No proposition in international law is clearer, or more surely Capture established, than that a capture within the territorial waters of good as a neutral is, as between enemy belligerents, for all purposes right- enemy ful; and that it is only by the neutral State concerned that the legal validity of the capture can be questioned. It can only be declared void as to the neutral State, and not as to the enemy.

It was contended by counsel for the shipowners that this well-established rule of international law had been modified by Convention XIII. of the Hague Conference of 1907.

Assuming for the purpose of this judgment that Convention XIII. is binding, it is clear that the Convention was only directed to the relations between neutral Powers and belligerent Powers, and was only intended to apply to questions arising between neutral Powers and belligerent Powers as such. Its provisions were not intended to deal with any question between belligerents, and did not affect the rule relating to capture in territorial waters of a neutral State as between two belligerent Powers where the neutral State did not intervene.

For these reasons I decide that the objection made by the claimants to the validity of the capture, even if it took place in neutral territorial waters, is not well founded, and I disallow the claim with costs.

The Bangor, [1916] P. 181, 185-186, V Ll. Pr. Cas. 308, 314–316.

In upholding the condemnation of a German ship which had not departed from the Egyptian port of Alexandria at the outbreak of war between Great Britain and Germany in 1914, Lord Parker said for the Judicial Committee of the Privy Council:

Even if Alexandria could be regarded as a neutral port, the fact would be immaterial. The seizure of an enemy vessel in a neutral port, though a breach of neutrality, would not in a Court of Prize afford any ground for its release.

The Achaia, [1916] 2 A.C. 198n., V Ll. Pr. Cas. 63. With respect to this case, see also vol. VI, p. 568, of this Digest.

A British cruiser captured a German vessel barely within three Restitution miles of the Norwegian coast (there was some difficulty in determining the limit of territorial waters in that region because at high water part of the mainland appeared as two islands). The vessel and

cargo were requisitioned. Prize proceedings were brought for their condemnation, and the Norwegian Government claimed release of the vessel and cargo, with damages and costs, on the ground that the capture was made in territorial waters. The Prize Court released the vessel and cargo. It refused damages or costs upon finding that the British commander had no intention to violate Norwegian neutrality. On appeal the Judicial Committee of the Privy Council held that the Norwegian Government was entitled to such costs of the return voyage to Norway as were paid and borne by it, but not to other costs nor to any payment for the use of the vessel by the Crown while under requisition. Lord Sumner said:

On the high seas, if there is reasonable ground for detention, the risk of it is one which even a neutral must run, and the appropriate remedy is the release of the ship in this country. In neutral waters, on the other hand, no capture should be made at all, and rules applicable to the high seas are not in pari materia. Simple release of the ship in this country to the claimant sovereign may be an inadequate redress. The fact that the Court has duly received into its charge and jurisdiction a ship, which ought not to have been seized at all, leads to the conclusion that the true claim of the appellant is for a restitutio in integrum, so far as the Government of Norway is concerned.

They are therefore entitled to costs of the voyage to Norway paid and borne by them.

The claim for repayment of the Marshal's fees and other similar sums rests on a different footing. Here the important points are that the ship came regularly into the custody of the officers of the Court, and, but for the requisitioning, which also was a regular proceeding, would have remained throughout in its charge, and so would have had the benefit of care and protection, which would enure to enhance the vessel's value or avert depreciation. Even in the hands of the Admiralty, she has necessarily had the benefit of a certain amount of upkeep in the ordinary course of user, and there is no suggestion of ill-usage, neglect or wilful deterioration. Although, as now appears, the captors had no legal right to possession, they were in fact in possession in all good faith, and, in placing the ship and cargo in the custody of the Marshal, they acted in discharge of an obligation of a very binding character, from the observance of which it would be most inexpedient to deter persons in their position.

The Düsseldorf, [1919] P. 245; [1920] A.C. 1034, 1038, 1041-1042; IX Ll. Pr. Cas. 1, 16, 20–21.

With respect to the German owners, Lord Sumner said: “... Indeed, as against them, the capture is good, being the capture of enemy property; and the 'claim of territory,' as it is called, is one which is available to the territorial sovereign only, and not to the private shipowner." [1920] A.C. 1037, IX Ll. Pr. Cas. 14-15.

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