Изображения страниц
PDF
EPUB

11, 1915, it cannot accept these concessions as a settlement of all questions which have arisen or may arise with regard to this Order-in-Council.

The British Secretary of State for Foreign Affairs to the American Chargé d'Affaires ad interim in Great Britain (Wright), Sept. 15, 1920, enclosure in despatch 3441, Sept. 17, 1920, from Mr. Wright to the Secretary of State (Colby); and the Third Assistant Secretary of State (MerleSmith) to Mr. Wright, no. 1103, Dec. 27, 1920: MS. Department of State, file 441.11C881/6; 1920 For. Rel., vol. II, pp. 643-646.

PRIZE COURTS AND PROCEDURE

NATURE AND FUNCTION OF PRIZE COURTS

§646

In protesting in 1916 against the British "black list", the Department of State said:

Conspicuous among the principles which the civilized nations of the world have accepted for the safeguarding of the rights of neutrals is the just and honorable principle that neutrals may not be condemned hor their goods confiscated except upon fair adjudication and after an opportunity to be heard, in prize courts or elsewhere.

The Acting Secretary of State (Polk) to the Ambassador to Great Britain (Page), telegram 3578, July 26, 1916, MS. Department of State, file 763.72112/2758a; 1916 For. Rel. Supp. 421, 422.

In 1915 the Judicial Committee of the Privy Council said:

It is worth while to recall generally the principles which have hitherto guided British Courts of Prize in dealing with a claim by a captor for condemnation. All civilized nations up to the present time have recognized the right of a belligerent to seize, with a view to condemnation by a competent Court of Prize, enemy ships found on the high seas or in the belligerent's territorial waters and enemy cargoes. But such seizure does not, according to British prize law, affect the ownership of the thing seized. Before that can happen the thing seized, be it ship or goods, must be brought into the possession of a lawfully constituted Court of Prize, and the captor must then ask for and obtain its condemnation as prize. The suit may be initiated by the representative of the capturing State, in this country by the Procurator-General. It is a suit in rem, and the function of the Court is to inquire into the national character of the thing seized. If it is found to be of enemy character, the duty of the Court is to condemn it; if not, then to restore it to those entitled to its possession. The question of national character is made to depend upon the ownership at the date of seizure, and is to be determined by evidence. The effect of a condemnation is to divest the enemy subject of his ownership as from the date of

the seizure and to transfer it as from that date to the Sovereign or to his grantees. The thing-the res-is then his for him to deal with as he thinks fit, and the proceeding is at an end.

As the right to seize is universally recognized, so also is the the title which the judgment of the Court creates. The judg ment is of international force, and it is because of this circumstance that Courts of Prize have always been guided by general principles of law capable of universal acceptance rather than by considerations of special rules of municipal law.

The Odessa; The Woolston, [1916] 1 A.C. 145, 153–154, II Ll. Pr. Cas. 405, 421, 422.

"Prize Courts being municipal rather than international organs their constitution and organization are matters which are determined entirely by the legislative or executive authorities of the states in which they exercise their functions." Garner, Prize Law During the World War (1927) 10. With respect to the organization of prize courts in various states, see ibid. 10-28; Verzijl, Le droit des prises de la Grande Guerre (1924) 6-17; Colombos, Treatise on the Law of Prize (2d ed., 1940) 15-42. With respect to the International Prize Court proposed in 1907, see $591, ante.

In 1917 the Secretary of State wrote the Attorney General in connection with the taking over of German vessels in American ports as follows: "It may be said, however, in behalf of prize procedure, that it is a procedure understood and recognized throughout the world in condemnation of enemy property. It is also well understood that a prize court is a municipal court, set up by the sovereign and subject to his will. In the absence, however, of municipal laws controlling the action of a prize court, it is supposed to administer the law of nations, and on this supposition its international standing is based. There are, however, many instances in which prize court decisions have been objected to by one belligerent, re-heard in international arbitrations, and overruled. But, being set up by municipal law and subject to municipal law, it is difficult to perceive why a decision of a prize court should be in principle more highly regarded by foreign countries than any other act of a sovereign in harmony with the rights accorded him by international law, one of which rights is to confiscate enemy property or to requisition it upon payment of just compensation." Secretary Lansing to Attorney General Gregory, Apr. 28, 1917, MS. Department of State, file 862.85/82a; 1917 For. Rel., Supp. 2, vol. II, pp. 1246, 1248.

A vessel belonging to Greek subjects and flying the neutral flag of Samos was captured by Bulgarian authorities during the Balkan War. A Bulgarian Military Commission, sitting as a court of prize, condemned as contraband flour on board the vessel and later requisitioned timber forming the remainder of the cargo. Military authorities destroyed the vessel. The Mixed Arbitral Tribunal hearing Greek claims against Bulgaria ordered the latter to pay compensation for the taking of the cargo and sinking of the vessel. It said:

In matters of prize, the fundamental, universal, and centuriesold practice is that every prize should be adjudicated.

U.S. prize courts

Independent of executive control

The judgment constitutes the captor's title. The hostile occupation is no more than the remote cause of the acquisition; its proximate cause is found in the judgment.

It is true that each state is free to organize its prize courts and to regulate their procedure; but these courts have a special character, for, although dependent upon a national law and administration, they have certain international aspects due to the nature of their functions and the sound application which they should make of international law. It is necessary that a judicial procedure be followed, in the course of which both parties are heard, and the decisions .. must be based not only on national laws and national interests but also on international law.

We recall in this connection that although the texts of the Second Hague Peace Conference, and the Declaration of London of 1909, are not binding on Bulgaria, these texts ought to be taken into consideration in so far as they reproduce the principles of customary law in matters of maritime war.

The Commission could have lawfully sat as a prize court, but it does not appear in its decision of December 11, 1912 that a judicial procedure was followed. The terms of that decision do not let us know whether this Commission took into consideration the neutral character of the boat, nor whether it examined the questions raised by article 3 of Hague Convention XI of 1907, according to which "the boats exclusively employed in the service of minor local navigation (and it seems that such is the case of the Georgios, from its slight tonnage) are exempt from capture". [Translation.]

M. Vlassios D. Katrantsios [Arakas] (July 23, 1926), docket 533, VII Recueil des décisions des Tribunaux Arbitraux Mixtes 39, 43-44.

The Judicial Code of the United States authorizes the United States District Courts to function as prize courts. Section 24 states:

The district courts shall have original jurisdiction as follows:

of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. 36 Stat. 1087, 1091; 28 U.S.C. §41(3).

An act approved Aug. 18, 1942 provided for jurisdiction of American prize courts over vessels captured by American forces and taken into territorial waters of co-belligerents consenting to such an arrangement on a reciprocal basis. 56 Stat. 746.

Under the constitutional form of government obtaining in this country the executive department has no control over the judicial department of the Government, and the Department therefore is not in a position to make any binding declaration as to what the practice of the Federal courts might be in the event that they might be required to determine prize causes.

The Secretary of State (Lansing) to the Ambassador to Germany (Gerard), no. 1241, Sept. 9, 1915, MS. Department of State, file 763.72112/1408; 1915 For. Rel. Supp. 540.

There appear to have been no cases brought before the During United States courts concerning prizes during the existence of World War the present war.

The Assistant Secretary of State (Phillips) to the Netherlands Chargé d'Affaires ad interim (De Beaufort), no. 56, Nov. 29, 1918, MS. Department of State, file 763.72112/10997; 1918 For. Rel., Supp. 1, vol. II, p. 931.

66

"... there is no record in the Navy Department of any neutral ship or cargoes being brought into port by vessels of the United States Navy during the World War for adjudication as prizes." The Secretary of the Navy (Adams) to the Secretary of State (Stimson), Mar. 30, 1929, MS. Department of State, file 763.72112/12944; 1918 For. Rel., Supp. 1, vol. II, p. 934.

Great Britain and France signed a convention on Nov. 9, 1914, acceded to by Russia on Mar. 5, 1915 and by Italy on Jan. 15, 1917, which dealt with joint naval operations and provided that in principle jurisdiction should belong to the prize courts of the captor without regard to whether the captor was under the orders of the naval authorities of his own or another of the Allied states. Jurisdiction over captured vessels of one of the Allies was given to the courts of that Ally. In case of capture by joint naval forces, jurisdiction was given the country whose flag was flown by the officer having the superior command in the action. Provision was made for departures from these rules, and detailed regulations were laid down. Gt. Br., Treaty Ser. no. 2 (1915), Cd. 7739. See also ibid. no. 4 (1915), Cd. 7858; no. 5 (1916), Cd. 8401; no. 6 (1917), Cd. 8475; 1917 U. S. Naval War College, Int. Law Docs. 143.

Concerning the possibility of American adherence to this convention, the Secretary of the Navy wrote the Secretary of State:

"Because of the great distances of the maritime war zones in Europe from United States ports, in the event of capture of enemy vessels by our Navy it would be undoubtedly a great convenience to have at hand in the ports of our allies the necessary Admiralty Court machinery promptly to adjudicate in the matter of such prizes. Because, however, of the character of this war, the absence of enemy merchant vessels from the high seas and the small percentage of war vessels which may be captured and not sunk, it is not anticipated that serious complications will arise. In any event, there is ample authority and precedent for such vessels as are captured being taken into a port of our allies and there held for convoy to a United States port; or, if circumstances are imperative, the vessel may be there sold, and the proceeds sent into a United States Admiralty Court for adjudication. (Rev. Stat., sec. 4615; Jecker v. Montgomery, 13 Howard 498; Moore, vol. 7, p. 590).” He pointed to complications which would arise in view of American treaty obligations, the dissimilarity of the prize-court systems of the Allies, and the apparent approval by adherence to the convention of practices against which the United States had protested in the note from the Secretary of State to the Ambassador to Great Britain (Page) on Oct. 21, 1915. 1915 For. Rel. Supp. 578.

The Secretary of State then informed the Ambassador to Great Britain that the United States "in view of the present character of the war, deems it advisable to defer consideration of the question of the accession of the United States to these conventions and agreements". The Secretary of the Navy (Daniels) to the Secretary of State (Lansing), Jan. 16, 1918, and Mr.

of 1914-18

Exhaustion of remedies

Lansing to Mr. Page, no. 5722, Feb. 13, 1918, MS. Department of State, file 763.72112/6419; 1918 For. Rel., Supp. 1, vol. II, pp. 922–924.

In a note of December 28, 1914 (based on an instruction of December 26) the American Ambassador to Great Britain informed the British Foreign Office of the American attitude with respect to British seizure and detention of American vessels and cargoes. The British Foreign Office, in a note of February 10, 1915, replied:

No war has yet been waged in which neutral individuals have not occasionally suffered from unjustified belligerent action; no neutral has experienced this fact more frequently in the past than Great Britain. The only method by which it is possible to harmonize belligerent action with the rights of neutrals is for the belligerent nation to provide some adequate machinery by which in any such case the facts can be investigated and appropriate redress can be obtained by the neutral individual. In this country such machinery is provided by the powers which are given to the prize court to deal not only with captures, but also with claims for compensation. Order V, rule 2, of the British prize court rules, provides that where a ship has been captured as prize but has been subsequently released by the captors, or has by loss, destruction, or otherwise ceased to be detained by them, without proceedings for condemnation having been taken, any person interested in the ship (which by Order I, rule 2, includes goods) wishing to make a claim for costs and damages in respect thereof, shall issue a writ as provided by Order I [II]. And writ so issued will initiate a proceeding, which will follow its ordinary course in the prize court.

When an effective mode of redress is open to them in the courts of a civilized country by which they can obtain adequate satisfaction for any invasion of their rights which is contrary to the law of nations, the only course which is consistent with sound principle is that they should be referred to that mode of redress, and that no diplomatic action should be taken until their legal remedies have been exhausted, and they are in a position to show prima facie denial of justice.

The course adopted by His Majesty's Government during the American Civil War was in strict accordance with this principle. In spite of remonstrances from many quarters, they placed full reliance on the American prize courts to grant redress to the parties interested in cases of alleged wrongful capture by American ships of war, and put forward no claims until the opportunities for redress in those courts had been exhausted. The same course was adopted in the Spanish-American War, when all British subjects who complained of captures or detentions of their ships were referred to the prize courts for relief.

Ambassador Page to Secretary Bryan, telegram 1627 (undated), received Feb. 12, 1915, MS. Department of State, file 763.72112/716; 1915 For. Rel. Supp. 324, 330.

« ПредыдущаяПродолжить »