vessel

A German vessel was captured by a British warship in Norwegian Where territorial waters, the captors acting in the belief that they were on destroyed the high seas and without negligence. On the voyage to a British port the vessel was abandoned because of bad weather and was sunk by gunfire to prevent its becoming a danger to navigation. The Crown asked for condemnation of the vessel and cargo, and the Norwegian Government claimed restitution of the value. The Prize Court, and upon appeal the Judicial Committee of the Privy Council, held that, although it would have been necessary to restore the vessel had she remained in existence, under the circumstances there was no right to restitution of her value.

In dismissing the appeal, Lord Sumner said:

In the present case ... the only wrong that can be vindicated is the wrong to the sovereignty of His Majesty the King of Norway. Whether indemnity be an apt term or not in the case of captures, it is at any rate plain that it is a term which would preclude the appellant from recovering anything in respect of the proprietary interest in the ship. Restitution of the vessel is a restoration of the status quo, but payment of her value in money would either leave in the hands of the Norwegian Government a profit on the whole transaction, which is a contradiction of the whole idea of indemnity, or would constitute them agents or trustees for the German owners, who on receipt of the money would be recompensed for that which was no wrong to them, so that again the principle of indemnity would be departed from.

The Valeria, [1920] P. 81, 85-88; [1921] 1 A.C. 447, 485; IX Ll. Pr. Cas. 23, 24-25, 30, 35-38.

in neutral

waters

In the case of The Pellworm and Other Ships, discussed ante, § 636, Vessels lost during British warships had hailed four German vessels just outside of Nethrequisition erlands territorial waters and ordered them to stop. The vessels after capture hauled down their flags and stopped their engines but did not alter their course. They were carried within territorial waters by their headway, the wind, and the tide, and were there boarded and taken possession of by prize crews. After prize proceedings were begun for condemnation, the vessels were requisitioned by the British Crown and their appraised values were paid into court. While in the Government service two of them were sunk by German action. The Netherlands Government made claim for restitution of the vessels with costs and damages.

In delivering the opinion of the Judicial Committee of the Privy Council, Lord Sumner said

it is one thing to say that capture, effected within Dutch waters by boarding or otherwise, involves the restoration of the prize, and quite another to say, that to board within the territorial limits a prize honestly believed to have been captured outside them must

necessarily justify a claim for damages by the neutral sovereign concerned.

where there has been no intentional misconduct or affront on the part of the captors, and the loss of the vessel in question, without default on the part of those in control of her, has made her return in specie impossible, the payment of damages to the claimant is a wholly inappropriate remedy. A separate and much more difficult question, however, arises where prizes have been requisitioned on the terms of bringing, or of undertaking to bring, the appraised values into Court.

.. If a requisitioned ship is condemned, the undertaking to bring her appraised value into Court fails, since the Crown is not bound to pay for her; if she is not condemned, the money is brought into Court and paid to the party entitled to a release of the ship. If the Court were to refuse to release the appraised values in this case, when it would have released the ships, if they had remained in the Marshal's custody, the result would be, that the Dutch Government's right to restoration would be defeated merely as a consequence of the British Government's exercise of the right to requisition, and the British Government's obligation to bring the appraised values into Court would cease to be performable. As it is, though the ships are lost there is something to restore, viz., the money which represents them. In their Lordships' opinion this consideration must prevail.

Their Lordships disallowed damages but ordered that a decree should be entered for the restoration of the two surviving vessels, for the payment by way of restoration of the appraised values of the other two vessels, and for the payment of expenses, if any, falling upon the claimants in connection with the return of the two vessels to Netherlands territorial waters.

The Pellworm and Other Ships, [1920] P. 347; [1922] 1 A.C. 292, 304, 306, 307-308, 309, 310-311; ÌX Ll. Pr. Cas. 147, 178, 180, 182-183, 184,

185-186.

The French Prize Council upheld the seizure of German and Austro-Hungarian vessels in Greek ports on the ground that Greek waters could not be regarded as "neutral" in view of German operations permitted therein. It stated that "the succession of hostile acts committed by the enemy in the waters and territory of Greece has transformed it into a theatre of war and has deprived the enemy de facto of the advantages of a neutrality which the vessels of the enemy now vainly attempt to invoke”.

The Tinos and other ships (Nov. 29, 1917), Fauchille, Jurisprudence française en matière de prises maritimes (1919) 390; Scott and Jaeger, Cases on International Law (1937) 907, 908. On appeal the decision was upheld by the Conseil d'État with respect to the Austro-Hungarian vessels. The Korana and other ships, XXVII Revue générale de droit international public (1920), Jurisprudence en matière de prises maritimes, 10.

Suez Canal

Three German vessels arrived at the Suez Canal just before the out- Shelter in break of war between Great Britain and Germany in 1914. They were given passes to depart but remained. Egyptian authorities took them outside of Port Said and turned them over to British vessels. They were then brought back to Egyptian ports and condemned as prize. In approving the condemnation, Lord Sumner said that "the ships were using Port Said simply as a port of refuge, and therefore without any right or privilege arising out of the Suez Canal Convention, 1888".

The Pindos; The Helgoland; The Rostock, [1916] 2 A.C. 193, 196–197, V LI. Pr. Cas. 69, 76–77.

Under the Suez Canal convention of 1888, to which Great Britain and Germany were both parties, the stay of prizes of war at Suez was limited to 24 hours and the Egyptian Government was charged with the duty of taking necessary measures for the execution of the convention. On Aug. 15, 1914 a German vessel was captured in the Red Sea by a British cruiser and taken to Suez, where it remained for 32 hours. When proceeded against in the Prize Court for Egypt, the ship-owners contended that the breach of the Suez Canal convention was ground for release of the vessel. The Prize Court condemned it, and the Judicial Committee of the Privy Council dismissed an appeal on behalf of the vessel. Lord Parker said:

"If the neutral allow the prize to remain longer than is warranted by the circumstances it is no doubt guilty of an unneutral act, which may well be made the subject of diplomatic complaint. But their Lordships cannot think that the captor's Prize Court has any jurisdiction to entertain the question, or is bound, if it consider that there has been an unneutral act, to release the prize on that account." The Südmark, [1917] A.C. 620, 623-624, VI LI. Pr. Cas. 343, 350-351.

A German submarine captured the Swedish steamer Götaland on suspicion of carrying contraband and of attempting to ram the submarine. A prize crew was put on board and the German flag hoisted. While the Götaland was proceeding to a German port it met and stopped the Norwegian vessel Tello, which was carrying absolute contraband to England. The crew of the Tello was removed, and the commander of the prize crew of the Götaland scuttled the Norwegian vessel. In prize-court proceedings against the Götaland it was established that it was not carrying contraband and that it had not attempted to ram the submarine, but it was found that the submarine commander might well have thought that such an attempt was made. Norwegian insurers of the cargo on the destroyed Norwegian ship claimed compensation upon the ground that the capture and destruction were unlawful in as much as the measures had not been taken by the "commander" of a war vessel and had taken place from the unlawfully seized Swedish steamer, which they said should be regarded as neutral territory. The German Supreme Prize Court affirmed the decision of the Hamburg Prize Court refusing the claims of the Nor

Capture by forces

from neutral

prize

wegian companies. It held that the commander of the prize crew on the Götaland was competent to make the capture, and on the other point said that "The prize crew placed on the Götaland certainly did not enter Swedish territory; rather, it remained on the high seas." The court further pointed out that since the seizure of the Götaland was lawful the captor could use it as an auxiliary, even though it later proved not to be liable to condemnation.

The Tello (June 29, 1916), I Entscheidungen des Oberprisengerichts in Berlin (1918) 161, 163-164; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 127. For the decision in the Götaland, see I Entscheidungen des Oberprisengerichts in Berlin (1918) 198; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 152.

Sending into port

PROCEDURE AFTER CAPTURE

§640

Paragraph 80 of the Instructions for the Navy of the United States Governing Maritime Warfare, issued June 30, 1917, stated that except under extraordinary circumstances "prizes shall be sent promptly to a port within the jurisdiction of the United States for adjudication" and that

In general, a prize master with a crew shall be sent on board the prize for this purpose.

If for any reason this is impracticable, a prize may be escorted into port by the capturing vessel or by another vessel of war of the United States or of an ally. In this exceptional case the prize shall be directed to lower her flag and to steer according to the orders of the escorting vessel of war. The prize must obey the instructions of the escorting vessel, under pain of forcible mea

sures.

Paragraphs 81 and 83 of the Instructions recite procedural provisions required by sections 4515, 4617, and 1624 of the Revised Statutes of the United States.

The French Naval Instructions of Mar. 8, 1934 on the application of international law in case of war provide:

"ART. 144.-You are forbidden to enter into an agreement for ransom [of prize]." Recueil général périodique et critique des décisions, conventions et lois relatives au droit international public et privé (1935), pt. VI, p. 8, translation.

"Contemporary prize law forbids the ancient practice of ransom; i. e., the officers commanding war vessels of belligerent powers are no longer authorized to renounce the capture of a vessel or its cargo, upon payment of a ransom by the captain of the vessel stopped." Verzijl, Le droit des prises de la Grande Guerre (1924) 1226, translation.

"The convenience of the port to which a prize is brought in for adjudication must be determined by all the circumstances of the case. Neutral

ports are not convenient ports, for it is arguable that a neutral Power could not allow a prize to remain in its ports-except temporarily, and then only by reason of special circumstances, such as stress of weather or want of provisions-without committing a breach of neutrality, and, further, it might be difficult to execute the order of the Prize Court of the captors over vessels in a neutral port. Other things being equal, the nearest available port should be preferred. A ship captured in the English Channel ought not as a rule to be taken to Gibraltar. It would be unreasonable to subject her to the risk of so long a voyage. But as between various home ports it would be quite proper to select the least congested port, or the port the voyage to which, although longer, would involve less danger from the risks incident to war. A convenient port must be such that the property can remain there in safety without being exposed to special risk from wind or tide. It should be capable of accommodating vessels of the draught of the captured ship. The real point to be considered is the safety of the prize, and the distance of the place where the Prize Court holds its sittings from the port selected is immaterial." The Südmark (No. 2), [1918] A.C. 475, 480, VI Ll. Pr. Cas. 352, 364–365.

99. By the fact of capture a public vessel in the military service Enemy public of the enemy passes into the possession of the captor's Govern- vessels ment, in which title immediately vests. It is unnecessary to

send a captured public vessel into port for adjudication. The vessel may be immediately converted to the use of the captor and sent to any port at his convenience, as a public vessel of the United States.

Instructions for the Navy of the United States Governing Maritime Warfare (June 1917).

See Pearce Higgins, "Ships of War as Prize", British Year Book of International Law (1925) 103.

A German merchant vessel in an Italian port was requisitioned by Italian authorities after Italy entered the war in 1914. Subsequently, while on a voyage for the Italian State Railways, it was sunk by a German submarine. The Hamburg Prize Court held that it had no jurisdiction, since it lacked proof that the vessel had lost its German character. The Supreme Prize Court affirmed the holding that the Prize Court lacked jurisdiction but rested its decision upon the ground that the vessel should have been regarded as an Italian public vessel at the time of sinking. It was of the view that vessels employed in the service of a state and under the control of a state were to be deemed public vessels and that public vessels of an enemy were forfeited to the captor without further formality or adjudication. The Mudros, II Entscheidungen des Oberprisengerichts in Berlin (1921) 87; 1923 U. S. Naval War College, Int. Law Decisions and Notes 22.

The title of the Crown to property seized as prize is not com- Title to prize plete without adjudication in its favour by the Prize Court.

The Südmark (No. 2), [1918] A.C. 475, 479, VI Ll. Pr. Cas. 352, 363.

In holding that capture and detention under the Reprisals Order in Council of March 11, 1915 did not prevent the sale of goods under