the legal situation should be looked upon as if at the moment of the reentry of the victorious Belgian troops the ship in question had not left the waters of the port of Ghent.

The Gratia (Nov. 8, 1919), 47 Revue de droit international et de législation comparée (3d ser., vol. I, 1920) 287, 288, translation.

With respect to other German vessels seized in Belgian ports, retaken by German forces, and sent to the Netherlands before the Armistice, which were subsequently turned over to the Allies by the Netherlands Government, the Belgian Prize Council held that it had jurisdiction to adjudge them good prize. It said:

"It is necessary to distinguish between the possession of ships and their physical control; in principle the actual holding of the ship is not an indispensable condition for the validation of the capture; it is enough for the ship to be definitely and legally in the possession of the captor, or to be so regarded, to the exclusion of the enemy belligerent . . ." The Elbing, Hanau and Tasmania (Nov. 7, 1919), ibid. 277, 279, translation.

See also The Delos, Lesbos and Lipsos (Nov. 11, 1919), ibid. 289; Verzijl, Le droit des prises de la Grande Guerre (1924) 1303-1310; Charles de Visscher, "De la compétence du Conseil des Prises de Belgique à l'égard de certains navires allemands internés dans les eaux néerlandaises", 47 Revue de droit international et de législation comparée (3d ser., vol. I, 1920) 228.

where neu

recaptured prior to

condemna

tion

A Greek vessel carrying English-owned coal destined from Calcutta Salvage to Karachi for Government railways in India was captured by a German cruiser for carrying contraband, and a prize crew was put on it. The vessel was later recaptured by a British cruiser while coal was being transferred from it to the tender of a German cruiser. It was then taken to Singapore, where condemnation proceedings instituted for unneutral service resulted in its release to the owners under bail for salvage. A writ in rem was brought against the vessel for salvage in recovering it from the German prize crew and cruiser. The Prize Court ordered one sixth of the vessel's value paid as salvage to the captain and crew of the recapturing British cruiser. Sir Samuel Evans said:

By the law of nations the general rule is that "no salvage is due for the recapture of neutral vessels. upon the principle that the liberation of a bona fide neutral from the hands of the enemy .. is no beneficial service to the neutral, inasmuch as the same enemy would be compelled by the tribunals of his own country to make restitution of the property thus unjustly seized": Wheaton's International Law, 8th ed. by Dana, s. 364. To this general rule, however, an important exception has been made for over a century, in the case where the vessel recaptured was practically liable to be confiscated by the enemy, whether rightfully or wrongfully.

The opinion of the Court is that the recapture of the Pontoporos in these circumstances saved the ship for its owners from condemnation in any prize proceedings, or from the almost certain

risk of destruction if she were dealt with upon the high seas without even the opportunity of placing her case before any judicial tribunal.

The Pontoporos, [1916] P. 100, 102–109, V LI. Pr. Cas. 47, 52–53.

"As regards recapture of neutral prizes, the rule ought to be that ipso facto by recapture, prior to condemnation, the vessel becomes free without payment of any salvage. Although captured, she was still the property of her neutral owners, and if condemnation had taken place at all, it would have been a punishment, and the recapturing belligerent has no interest whatever in the punishment of a neutral vessel by the enemy.

"The practice of States is not uniform on the matter."

II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 726. A British submarine drove away a German submarine that had stopped and was about to sink two Norwegian vessels which had been abandoned by their crews. The officers and crew of the British submarine were granted salvage from the two Norwegian vessels, the court (Judge Hill) saying:

The general rule that no salvage is given on the recapture of an innocent neutral ship is based on the presumption that no peril is incurred by the capture, because the neutral ship will be carried into the courts of the captor, and there justice will be done according to international law, and the innocent owner will recover his ship, or its value and expenses. But the general rule has no application where the State of the captor and its Courts are notoriously outraging international law, and have made it apparent that justice will not be done, and that in defiance of international law the neutral ship will be condemned or its destruction justified by the Courts of the captor.

I hold that the plaintiffs are entitled to a salvage award for having rescued the Borgila and Svanfos from the enemy submarine, which had reduced them completely into her power and was about to destroy them as prizes of war.

The Svanfos; The Borgila, [1919] P. 189, 196–199.

RELEASE OF PRIZE PENDING TRIAL

§645

In considering a claim for freight on a cargo which had been seized but released by the Crown before adjudication, the British Prize Court said that

the Crown has full right to consent to the release of any ship or goods captured or seized on any ground that to the Crown may seem fit. Moreover, it does not by any means follow as a necessary consequence of the release that the goods were not properly seized as prize as the Crown's droits of admiralty. In the present case, as the Empire of Russia is our ally in the war,

it does not require a very vivid imagination to conceive grounds for giving up to the Russian Bank the proceeds of the portion of the cargo claimed by them quite other than an acknowledgment of wrongful seizure.

The Corsican Prince, [1916] P. 195, 205, II Ll. Pr. Cas. 198, 216.

stances

of release

In 1915 the Department of State was notified by an American Circumcompany that it had consigned a shipment of goods to Cuba on board a vessel which had been subsequently seized by British naval authorities and taken into Halifax. The company complained that, although the goods would be returned to them at Halifax, this would involve a heavy expense and that, moreover, the goods were rendered almost a total loss as a result of the delay. The Department replied:

If the British authorities had probable cause for the seizure of the steamer Hamborn, they would not appear to be under any legal obligations to forward the cargo to its destination.

You will doubtless appreciate that the question as to whether the vessel was legally detained is a matter to be determined by the Prize Court in the first instance.

Messrs. Coudert Brothers to the Department of State, Nov. 4 and 19, 1915, and the Second Assistant Secretary of State (Adee) to Messrs. Coudert Brothers, Dec. 3, 1915, MS. Department of State, file 341.115F111/-, /1.

An American citizen shipped furniture and personal effects from the United States on a German vessel shortly before the outbreak of war in 1914. The goods, which he consigned to himself in Berlin, were seized by the British after the outbreak of war. The Department of State replied as follows to an inquiry from the shipper:

You state that the British authorities are willing to grant the unconditional release of your property but demand that you bear all expenses.

...

inasmuch as the British authorities appear to be willing to release your goods, the question as to whether the British Government is under any liability to you on account of the detention of these goods would appear to depend on the question whether or not the detention of the Kronprinzessin Cecilie was justifiable. The Department understands that this vessel was in a British port at the time of the outbreak of the war between Great Britain and Germany. Under these circumstances it does not appear to the Department that her detention by the British Government was necessarily illegal.

The Counselor for the Department of State (Lansing) to Felix G. Drossel, Jan. 23, 1915, MS. Department of State, file 341.115D83.

waiver of claims

After the United States entered the World War in 1917 negotiations Release on were begun for the release of goods which were American-owned under ordinary rules of law but which had been detained by British authorities as enemy property or property of enemy origin under the Order in

Council of March 11, 1915. The American Consul General at London unsuccessfully sought the release of west-bound goods and the return of deposits where the goods had been released against deposits. The British Procurator General insisted that any release of goods or deposits should be regarded as a final settlement of all claims by the American claimants. The United States refused to recognize the validity of the Order in Council but indicated its willingness, in cases where this was agreeable to the owners of the goods, to regard such a release as a final pecuniary settlement.

Secretary Lansing to the Chargé d'Affaires ad interim in Great Britain (Laughlin), telegram 180, July 12, 1918, MS. Department of State, file 300.115/14100; the Ambassador to Great Britain (Page) to Mr. Lansing, no. 9821, Sept. 3, 1918, ibid. /14331; 1920 For. Rel., vol. II, pp. 601, 616–619.

As negotiations continued after the termination of hostilities and the signature of the Treaty of Versailles, Secretary Lansing instructed the Ambassador to Great Britain to address to the Foreign Office a note as follows:

As the economic blockade of the Central Powers has now been raised, the Government of the United States believes that American owned goods detained by the British authorities under the Order in Council of March 11, 1915, should be released to the American owners upon the production of documents establishing their title to the goods at the time of detention. My Government is also of the opinion that in cases in which it has been deemed advisable by the British authorities to sell the goods, the proceeds of the sale should be released to the American owners.

In a large number of cases arrangements were made whereby the American owners of goods detained by the British authorities deposited the invoice value of the goods with the British Prize Court to effect the release of the goods for use in the manufacture of materials necessary for the prosecution of the war by this country. My Government instructs me to inform Your Excellency that it is of the opinion that the British Government should take immediate steps to pay over these funds upon the submission of documents establishing American ownership of the goods at the time of detention.

The British Government maintained its former position-that it was willing to order release of goods detained under the Order in Council of March 11, 1915 to American claimants who could establish their ownership at the time of shipment, or the proceeds of goods already sold, on condition that such releases be accepted in final settlement by all claimants.

The Secretary of State (Lansing) to the Ambassador to Great Britain (Davis), telegram 5885, Aug. 28, 1919, MS. Department of State, file 300.115/14331; Mr. Davis to Mr. Lansing, telegram 3510, Dec. 10, 1919, ibid. /20523; 1920 For. Rel., vol. II, pp. 629–632.

It was agreed that certain shipments detained under the Order in Council should be referred to the Prize Court as test cases. The Crown agreed to the release of the property, in cases in which under municipal law the title would have passed to the American purchaser, on condition that the claimants pay the expenses of detention and insurOn July 22, 1920 the Prize Court held that the claimants must pay the expenses. The president, Sir Henry Duke, distinguished this situation from capture as prize, where insurance is for the benefit of the captor and is not chargeable to the claimant. Concerning expenses of detention, he said:

ance.

Although the goods here in question were not claimed for condemnation they are in some particulars similarly circumstanced to goods so claimed. They were rightfully seized, unladen and detained, and if sold were rightfully sold. Whether the

matter is considered generally under the Order in Council, or in the light of the practice of the Court in prize, the terms upon which it is just that the goods should be released are, in my view, terms of payment by the claimants of the expenses properly and necessarily incurred in the handling of their respective parcels.

The United States, [1920] P. 430, 436-437, X Ll. Pr. Cas. 156, 162. After this decision of the Prize Court the British Government wrote:

4. It is proposed to deal with the remaining cases of goods detained under the Order-in-Council upon the same basis, and where His Majesty's Procurator-General is satisfied that by commercial law the property had become American at the time of seizure, and that no claim can be made upon His Majesty's Government by any other claimant, he will be prepared to file consents to orders for release upon the same terms as in the case above mentioned. In cases in which there is an element of doubt or the amount involved is considerable, or where other reasons exist which lead the Procurator-General to consider that the interests of the Crown require it, it is proposed to refer the claimants to the Prize Court for such order as it may deem just to make in all the circumstances of the case.

5. These concessions are made by His Majesty's Government upon the assumption that they will be accepted as a settlement of all questions which have arisen with regard to the Order-inCouncil in question, and must not be taken as implying any doubt or admission whatever with regard to its validity.

With reference to paragraph 5, the Department of State instructed the Ambassador to Great Britain:

You are requested to inform the Foreign Office that while this Government might be willing to accept the concessions made by the British authorities as a settlement of some of the questions which have arisen with regard to the Order-in-Council of March