remained in specie, their proceeds-nothing else having intervened to change their ownership-are also subject to condemnation.

The Glenroy, [1918] P. 82, 84, VII Ll. Pr. Cas. 200, 207.

A British vessel carrying grain, the property of German consignees, from the Black Sea to Hamburg, was diverted to London on the outbreak of war in 1914. Soon afterward the ship-owners sold the cargo, which was perishable. The Prize Court condemned the proceeds of the sale on the ground that the cargo was confiscable as enemy property. The Soldier Prince, VII Ll. Pr. Cas. 163 (1917). See also The Clan Mactavish and The Ballarat, ibid. 160 (1916).

Goods consigned to the English branch of an enemy Austrian firm were landed in England after the outbreak of war in 1914 and remained unsold until, in March 1916, a controller was appointed for the company as an enemy firm. The controller sold the goods in September 1916. The proceeds were condemned as prize. Sir Henry Duke said:

These goods were in specie, and, it seems to me, were still identifiable by character and locality as part of the cargoes of the respective steamers by which they had been imported. They had not passed into the current of trade in this country.

The Steamship Ajax and Other Vessels, X Ll. Pr. Cas. 442, 445-446 (1924). Other goods consigned to the firm, apparently at sea on the outbreak of war and landed shortly thereafter in 1914, had been sold, and the proceeds had been mingled with other moneys of the English branch of the firm. Sir Henry Duke refused to condemn these proceeds, saying:

"... I could not see my way to condemn without authority the proceeds of goods which, although they might have been captured while on board as cargo, had been delivered to the enemy owner and had become part of the stock-in-trade of a firm engaged in the internal trade of this country." Ibid. 449.

In holding that a claim for indemnity for deviation of a neutral vessel to a British port for search fell within the competence of the Prize Court and not within that of the War Compensation Court, Lord Justice Bankes said:

I see every reason

why claims within the jurisdiction of the Prize Court should be excluded from the operation of the Indemnity Act. The Prize Court is a court specially constituted to administer internationally the rules of international law. Those rules recognize an entirely different standard of compensation and of responsibility from that which is accepted by a court of law, using that expression in its ordinary sense. It is for that reason that in matters in which the Prize Court has jurisdiction, its jurisdiction has always hitherto been accepted as exclusive,

Netherlands American Steam Navigation Company v. H. M. Procurator General, [1926] 1 K.B. 84, 92.

German courts

Destruction

Ancillary matters

Two Netherlands steamers were sunk on February 22, 1917 by a German submarine because they were in the "barred zone" of the North Sea. The insurance companies brought an action for damages for the destruction of the vessels. The action was dismissed by the German Supreme Prize Court on the ground that German prize courts considered only matters brought before them by the Admiralty. The court said:

The real competence of the Prize Courts is not decided by standards of international law but only by national law. Therefore, prize jurisdiction is variously ordered in different countries. The Prize Regulations determine the nature of prize law. But these regulations contain provisions with regard to the destruction of merchantmen only in so far as this destruction occurs after the confiscation (capture) of the ship and for the reason that the ship was considered hostile or equivalent thereto, or that it was carrying contraband, was violating a blockade or was guilty of unneutral aid. If the destruction of a merchantman occurs for any other reason and without confiscation of the ship as a prize, the said destruction may, to be sure, be considered a war measure; but it can not be regarded as an act in accordance with prize law, and the Prize Courts are not competent to pass judgment on the legality of such an act.

This opinion also formed the basis of the decision of the Supreme Prize Court of April 27, 1917, in the matter of the Dutch fishing steamer Geertruida [I Entscheidungen des Oberprisengerichts in Berlin (1918) 302; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 228.] In that case the ship was destroyed by a German U-boat because the commander and the crew of the latter assumed that the fishing steamer was armed and was attempting to make an attack upon the U-boat which was prompted by no measures of the Prize Law. Since the U-boat intended merely to ward off and defeat this attack the Supreme Prize Court in that case, too, denied the prerequisites of a prize case and consequently the competency of the Prize Courts.

The Eemland and The Gaasterland (Nov. 1, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 388; Scott and Jaeger, Cases on International Law (1937) 827; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 296. See also Garner, Prize Law During the World War (1927) 62-64.

Japanese goods on a German vessel were seized as prize in Egypt and placed in a warehouse by the marshal of the Prize Court. A Japanese firm obtained an order for their release, and thereafter the warehouseman erroneously sent most of the shipment to England instead of to Japan. The Japanese firm brought proceedings against the marshal for negligence. The Procurator General, on behalf of the marshal, made the warehouseman a party to the proceedings. The warehouseman refused to make appearance, claiming that the Prize

Court had no jurisdiction over him. The Prize Court for Egypt held that it had jurisdiction; but on appeal the judgment was reversed by the Judicial Committee of the Privy Council on the ground that before the negligent action by the warehouseman the goods had been released to the Japanese firm and had ceased to be prize goods. Sir Arthur Channell said that

the Prize Court has exclusive jurisdiction over the question of prize or no prize, and also over all questions which depend for their proper determination on the question of prize or no prize, the reason being that prizes are acquisitions jure belli, and that jus belli is to be determined by the law of nations, and not by the municipal law of any country. . . . So the claim for freight on a voyage interrupted by capture, and continued to a different port by direction of the captors, can only be dealt with in the Prize Court, for the right to the freight contracted for for the intended voyage is lost by the non-completion of that voyage, and the only freight which could be recoverable would be that which the Prize Court might award, applying its rules to the particular circumstances of the capture, on which it alone could adjudicate. This was held in the Corsican Prince [[1916] P. 195] and the decision on that point was approved by this Board in the St. Helena [[1916] 2 A.C. 625], although there the appeal was allowed on other grounds. This doctrine as to prize jurisdiction over what are called incidental matters, meaning matters which depend for their decision on prize or no prize, is well established, but it obviously has no application to the present case, where the claim for indemnity in no way required the consideration of any question of prize law or international law for its determination. The Prize Court also has the incidental jurisdiction which is necessary to enable it to keep control over the captured ship or goods, pending the decisions as to whether or not they are lawful prize, in order that the Court may be able to deliver them to whomsoever they may decide to be entitled.

The Egyptian Bonded Warehouses Company Limited v. Yeyasu Goshi Kaisha and another, [1922] 1 A. C. 111, 116-117, X Ll. Pr. Cas. 384, 400-402.

A British shipping company made a claim in the British Prize Freight Court in 1915 for freight earned on a cargo which had been seized but released prior to adjudication. The court had ordered the cargo sold to avoid deterioration and, with the consent of the Procurator General, had ordered the proceeds paid to the Russian companies which claimed to be the owners. Counsel for one of the cargo-owners, while admitting that the court had jurisdiction "in all matters which can be called ancillary to prize matters", contended that "the captor has restored the property to the claimants, and from that time it ceased to be subject to prize jurisdiction, and the parties are restored to their common law rights" and that "The proposition of the shipowners, that any dispute indirectly connected with the captured res

is within the exclusive jurisdiction of the Prize Court is much too wide." In treating the general question of jurisdiction, the court referred to various authorities, particularly to Story, Principles and Practice of Prize Courts, pages 30-32, and said:

The Prize Courts have constantly dealt with claims for freight and damages where ships or cargoes have been captured or seized, not only as between captors and owners, but also as between owners of ships and owners of cargo; and have adjudicated upon such claims whether the ship or cargo had been released, and when both ship and cargo had been released; and, apparently, no actions involving those questions in similar cases were brought in any common law Court, and this is obviously for grounds solid in justice and convenient in practice; because the two Courts administer two different codes or systems of law; the Prize Courts deal with claims in accordance with the law of nations, and upon equitable principles freed from contracts, which almost always cease to have effect upon capture or seizure, by reason of the non-performance or non-completion of the contract of affreightment; whereas common law Courts would only determine the consequences of the strictly legal contractual obligations of the parties. The King's Bench Courts would either give the claimants for freight the whole or nothing according to whether the contract of affreightment had been performed or not; but the Prize Court takes all the circumstances into consideration, and may award, as it has done in decided cases, the whole, or a moiety, of the freight, or a sum pro rata itineris, or it may discard the contract rate altogether, even as a basis for assessment or calculation (see The Twilling Riget); or it may withhold or diminish the sum by reason of misconduct, as, e.g., by resistance to search, or spoliation, or non-disclosure of papers.

As to the contention of the claimants, the court referred to Le C'aux v. Eden, 2 Doug. 594 (1781), and said:

the Prize Court exercised jurisdiction, and exclusive jurisdiction, where the subject-matter had been acquitted or released, and it has been held that such jurisdiction was vested in it, even when captures had been abandoned without any proceedings having been instituted at all.

When the particular facts of the present case are looked at it is quite clear that this Court alone has jurisdiction to deal with the claim for freight, and that it would be most inconvenient if it were otherwise.

The Corsican Prince, I Br. & Col. Pr. Cas. 178, 180-181, 185–187, [1916] P. 195, 202, 203.

In 1904 the Japanese Prize Court at Sasebo said:

"This Prize Court has no competence to decide on claims for freight or travelling expenses, and therefore the claim in regard to them must be rejected." Cargo ex “Ekaterinoslav”, Kunst and Albers' Claim, II Russ. and Jap. P.C. 10, 11.

With respect to freight in prize cases, see §655, post.

APPLICABLE LAW

$648

With respect to the rule of international law exempting enemy coast-fishing vessels from capture, Justice Gray said:

This rule of international law is one which prize courts, admin- International istering the law of nations, are bound to take judicial notice of, law

and to give effect to, in the absence of any treaty or other public

act of their own government in relation to the matter.

The Paquete Habana; The Lola, 175 U.S. 677, 708 (1900).

The Japanese Higher Prize Court in Dec. 1904 said that "It is the duty of a Prize Court, in deciding the legality of a capture at sea, to follow the rules and usages of International Law, and the laws of its own country." The "Bobrik", II Russ. and Jap. P. C. 107, 114.

In holding German-owned goods on a German vessel bound from Chile to a German port subject to condemnation as prize, Sir Samuel Evans said:

At the outset, two things must be remembered-first, that this is a Court of law, and, secondly, that the law to be administered here is the law of nations, i.e., the law which is generally understood and acknowledged to be the existing law applicable between nations by the general body of enlightened international legal opinion.

The decisions of a Court of law should proceed upon defined principles. Those principles have to be applied to ever varying sets of facts. But the Court has the function and duty not merely of deciding individual cases, but of determining them upon principles which shall be a guide to others as to what their positions and rights are in the eye of the law.

In the domain of international law, in particular, there is room for the extension of old doctrines or the development of new prin- Precedents ciples, where there is, or is even likely to be, a general acceptance of such by civilized nations. Precedents handed down from earlier days should be treated as guides to lead, and not as shackles to bind. But the guides must not be lightly deserted or cast aside. The Odessa; The Cape Corso, [1915] P. 52, 61–62.

In ordering the condemnation of property owned by the owners of other goods condemned as contraband, Lord Sumner said, on behalf of the Judicial Committee of the Privy Council:

Their Lordships are fully aware that some Continental jurists have criticized the rule of infection adversely, and that Continental Prize Courts have not always accepted it, though it has long been adopted in the United States and more recently in Japan. They are, however, bound by the decisions of their prede