1915), Fauchille, Jurisprudence française en matière de prises maritimes (1916) 32; decision of the Conseil d'État (Apr. 7, 1916), ibid. 244. The Italian Prize Commission held that an Allied (English) pledgee of enemy cargo on an enemy vessel should receive the cargo upon payment of expenses of detention. The Moravia (cargo) (1916), Fauchille and Basdevant, Jurisprudence italienne en matière de prises maritimes (1921) 35. With respect to the position as claimants of persons other than owners, see also Verzijl, Le droit des prises de la Grande Guerre (1924) 190 et seq. In the case of a German vessel captured on the high seas at the outbreak of war in 1914 (and not protected by Hague Convention VI, Mortgagee article III, because of the German reservation to that article), Netherlands mortgagees appeared as claimants in the Prize Court for such part of the proceeds of the sale of the vessel as would meet their mortgage. Sir Samuel Evans rejected the claim of the mortgagees, saying: It is not profitable to guess at the effect of the German mortgage deed; but there is certainly nothing upon the face of it which indicates any transfer of ownership, or anything other than a charge for the mortgage debt. The truth is that capture of enemy vessels at sea during war would be a hazardous and almost worthless right of belligerents if the captors were confronted with such claims as are put forward in this case, or if mortgages gave to mortgagees príor rights to those of the captors. But counsel for the claimants, as his last resource, boldly pressed the Court to extend the law at the present day, so as to protect neutral mortgagees of enemy ships, on the ground that the law of nations has advanced, as he contends, in this direction, by and since the Declaration of Paris, 1856; and that such a protection is necessary to accord with the policy and spirit of the Declaration with regard to neutrals. The Declaration of Paris, in the two articles referred to, only dealt with goods or merchandise carried in vessels, and not with the vessels themselves. But have any decisions in any Prize Court since 1856 proceeded in the direction urged? . . . The answer, it is believed, is in the negative. After reviewing authorities the court concluded: The Court has no hesitation in pronouncing that upon the authorities, upon principle, and upon grounds of convenience and practice, the claim of the neutral mortgagees of this captured vessel must be rejected. The same conclusion would be arrived at if the claim were by British subjects. It need scarcely be added 440083-43-vol. VII-21 that the Crown, being entitled to captured property, may out of its bounty deal favourably with any such claims. The Marie Glaeser, [1914] P. 218, 231–234, 238, I Ll. Pr. Cas. 56, 120-123, 128. H. B. M. Prize Court for Egypt held that the British mortgagees of a German vessel in an Egyptian port at the outbreak of war were entitled to appear in the Prize Court when the German owners did not appear. The Emil, I Br. & Col. Pr. Cas. 257 (1915). The decision in The Marie Glaeser was followed by Sir Boyd Merriman in a decision of Mar. 18, 1940 in the case of a German vessel over which British mortgagees exercised close control and of which they had attempted to take possession. The Konsul Hendrik Fisser, I Ll. P.C. (2d) 16 (1940). British mortgagees of a German vessel took possession of it on August 26, 1939, under the terms of a mortgage which provided that the mortgagees might "take immediate possession of the said vessel and register her as a British ship or sell the said vessel without the necessity of applying to the Court or any judicial or other authority”. The vessel was seized by the Crown on September 3, 1939, was subsequently requisitioned, and was lost while under charter by the Crown. The mortgagees appeared as claimants in proceedings brought for condemnation of the vessel. They attempted to distinguish the instant case from that of the Konsul Hendrik Fisser, I Ll. P.C. (2d) 16 (1940), mentioned supra, on the ground that they had taken possession, while in the Konsul Hendrik Fisser the mortgagees had merely given instructions to their solicitor to take possession. The Newfoundland Supreme Court condemned the ship as prize, saying: Putting their position, however, at its best, i. e., as mortgagees in possession, they are not the owners. Under their document they are, in equity, holders of a security, and accountable to the enemy owners for what they may realize over and above the amount owed. The possibility of redemption is not ruled out. If they had taken proceedings in the nature of foreclosure, had transferred the ship to British registry, the position might possibly be different; but, as it is, they did not divest themselves of the character of mortgagees with the owners of the equity of redemption standing behind them; and British Prize Courts have made ownership the criterion of natural [national] character This, taken in conjunction with the flag and the external enemy character, makes the position of the ship clear. The Christoph von Doornum, I Ll. P.C. (2d) 49, 51 (1940). ... With respect to the claim of a German firm for outlays made before the war in 1914 on behalf of the captain of a Russian vessel which was seized on the day war broke out, the German Imperial Supreme Prize Court said: Condemnation, according to prize law, is an original method of acquiring possession, an occupatio jure belli, which, according to generally acknowledged principles of international Liens law, gives to the occupant the ownership of the object seized free of every encumbrance. The Fenix, 10 A.J.I.L. (1916) 909, 915; I Entscheidungen des Oberprisengerichts in Berlin (1918) 1. In denying claims against an enemy vessel by British subjects “who have advanced sums of money in various ways, or who may have claims for services rendered in the nature of brokerage, or otherwise, to this vessel", Sir Samuel Evans said: "I cannot give effect to any such claims. If they are to be allowed it will be from the bounty of the Crown." The Marie Glaeser, [1914] P. 218, 223, I Ll. Pr. Cas. 56, 111. On Mar. 18, 1940 Sir Boyd Merriman denied claims of British subjects for brokerage fees for services rendered a German vessel, including fees for making arrangements for the voyage to Great Britain on which the vessel was captured and as a result of which the Crown became entitled to freight. The Rheingold, I Ll. P.C. (2d) 18 (1940). In proceedings in the Japanese Prize Court at Sasebo in 1904 a third party interposed a claim for services rendered the vessel prior to its capture. The court said that "according to International Law the rights of the captor over a prize which is condemned as enemy property are absolute, and a third party has no right to make a claim in respect of such property". The "Rossia", W. H. Gill & Co.'s Claim, II Russ. and Jap. P.C. 43, 45. See also The "Nigretia”, Petition of Mitsubishi Goshi Kaisha and Others, ibid. 208. It is a well-accepted principle that a capture jure belli overrides all previous liens, and that the seized property is acquired free of all equities. "There was almost complete uniformity during the Great War by the various Prize Courts in rejecting liens on seized property." Colombos, Treatise on the Law of Prize (2d ed., 1940) 82, 83. When a Netherlands company brought a claim for supplies furnished a German vessel which had been laid up in a Chinese port and was later condemned by the High Prize Court of China as an enemy vessel, the court said: This is beyond the jurisdiction of a prize court, which is solely concerned with the question whether or not a captured ship or cargo should be condemned; the question whether or not the thing condemned, or the owner thereof, is burdened with a debt being only a civil matter outside its jurisdiction. Moreover, according to International Law a belligerent has an absolute right to what he has lawfully captured. Such acquisition being original in character is free from any right to the same thing that may exist in any third party; a fortiori the existence of such rights cannot prevent a lawful capture. The Albenga, Judgments of the High Prize Court of the Republic of China (1919) 16, 18. To the same effect, with respect to the claim of an Insurers Shareholders English company for coal furnished an enemy vessel, see The Albenga, ibid. 20, 22. A Belgian vessel carrying German-owned wheat bound from Montreal to Rotterdam grounded on June 23, 1914. The vessel was salvaged and taken into a British port, where it was seized on February 11, 1915. Thereafter an American insurance company paid the maritime insurance on the cargo and became subrogated to the rights of the owner. The Prize Court ordered condemnation of the cargo as enemy property and held that the insurers had no right to claim under the circumstances. Sir Samuel Evans said: There is no precedent for such a claim ... it would be a sad day for the Prize Court if people who are in the position of underwriters, and under contractual obligations to the legal owners of the property, could come and ask the Court to investigate what the position was in regard to their assured and themselves as underwriters. I think it is possible that some steps might have been taken by the insurance company, if they had so seen fit before the seizure by the Crown, which would have placed them in the position of legal owners of the property. Nothing of that kind was done. The payment was only made after the seizure, and I am not called upon to determine, when we are merely testing ownership of the property at the time of seizure, what the relations of the parties at that time might be, or what the effect of that contractual relationship might be hereafter in months to come when they settled their affairs. The Gothland, [1916] P. 239n., 240n., V Ll. Pr. Cas. 39, 44–45. Now, with regard to the shareholders in a vessel, it is quite clear that if they are enemy shareholders, their property must go with the capture of the vessel in which they have put their money-a vessel which sails under the enemy flag. Not only is that so with regard to shareholders who are citizens of the German Empire, but it is equally so in the case of shareholders belonging to this country. If a shareholder invests his money by taking shares in a vessel which is liable to capture, he takes that risk. Of course if a British shareholder likes to present his case to the Crown as a case which ought to be dealt with as a matter of grace, that is another thing. I have nothing to do with that; I am here only to administer the law, and I must decide that the shareholders in this case have no right whatever in law to be protected from any results of the capture of this vessel. The Marie Glaeser, [1914] P. 218, 223, I Ll. Pr. Cas. 56, 111. JUDGMENT $653 In passing on a French Spoliation Claim involving demurrage on an American brig seized by a French privateer in 1798 and condemned by a French prize court, Judge Howry of the United States Court of Claims said: The time at which demurrage for detention begins is when the property has been illegally detained. It ceases when the owner becomes divested of his title to the property because such owner becomes a stranger to the res when the title is extinguished. In international law it is settled doctrine that the sentence of condemnation by a prize court completely extinguishes the title of the original proprietor and such condemnation transfers title to the captor or his sovereign. The Brig Fair Columbian, 49 Ct. Cls. 133, 144 (1913). "The title of the Crown to property seized as prize is not complete without adjudication in its favour by the Prize Court." The Südmark (No. 2), [1918] A.C. 475, 479, VI Ll. Pr. Cas. 343, 363. In condemning a Netherlands vessel which had been captured and condemned by a German prize court for carriage of contraband and thereafter recaptured by Belgian forces, the Belgian Council of Prizes in 1919 said that although it has not been codified, prize law is nevertheless gov- The Agiena, 16 A.J.I.L. (1922) 117, 119. In 1917 a Netherlands barge, captured in the North Sea, was condemned by a German prize court for carriage of contraband. When the vessel later entered a Netherlands port the former owner filed suit against its new owner, laying claim to the vessel on the ground that the decision of the prize court lost its effect upon the vessel's return to Netherlands jurisdiction, that the German prize law concerning carriage of contraband was contrary to international law, that the Netherlands Code of Civil Procedure forbade the execution of foreign judgments, and that articles XXI and XXII of the Hague convention Effect on ownership |