JUDICIAL DECISIONS INVOLVING QUESTIONS OF

INTERNATIONAL LAW

THE GUTENFELS. THE BARENFELS. THE DERFFLINGER

Judicial Committee of the Privy Council

Decided April 7, 1916

(The Times Law Reports, Vol. 32, p. 433)

By Art. 1 of the Sixth Hague Convention, 1907, "When a merchant ship belonging to one of the belligerent Powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely either immediately or after a reasonable number of days of grace." By Art. 2, "A merchant ship which, owing to circumstances beyond its control, may have been unable to leave the enemy port within the period contemplated in the preceding article, or which was not allowed to leave, may not be confiscated. The belligerent may merely detain it on condition of restoring it after the war, without payment of compensation, or he may requisition it on payment of compensation."

On August 4, 1914, war broke out between Great Britain and Germany, and a British Order in Council was issued recognizing Art. 1 (supra) conditionally upon Germany doing the same within a limited time. Germany did not do so, and the Order in Council did not come into operation.

The G. was a German ship which arrived at Port Said on August 5, 1914, in ignorance that hostilities had broken out between Great Britain and Germany. From August 5 to August 14 she was not free to leave, but on the latter date she was informed that she might do so. She did not leave, and on October 13 the Egyptian Government put a crew on board, and on October 16 they took her to sea and conducted her to a British warship, which seized her as prize and took her to Alexandria. On November 5, 1914, Great Britain declared war on Turkey, and on December 18, 1914, declared Egypt to be a British protectorate. The Egyptian Prize Court decided that the G. was entitled to detention in lieu of confiscation and that in accordance with Art. 2 (supra) she should be restored or her value paid to the owners at the conclusion of hostilities.

Held, on appeal, that even if the Hague Convention applied and if the Order in Council of August 4, 1914, extended to Egypt, the failure of Germany to concur in recognizing Art. 1 prevented Art. 2, so far as it was complementary to Art. 1, from coming into operation, that therefore the British Government was entitled to seize and detain the G. during the war, and that the appeal must be allowed and an order

made merely for the detention of the ship, leaving the ultimate rights of the parties to be determined after the war.

The court made a similar order in the case of the B.

The D. was a German ship intended for conversion into a ship of war, and she took refuge in Port Said on August 2, 1914, on account of the war between Germany and France and between Germany and Russia. The Hague Convention does not apply to a ship intended for such conversion. The Egyptian Prize Court made an order for her confiscation.

Held, that the order for confiscation was right and the appeal must be dismissed.

These were three appeals from orders of the Supreme Court for Egypt in Prize. The Crown appealed in the cases of the Gutenfels and the Barenfels. In the case of the Derfflinger the Crown was the respondent. Lord Wrenbury delivered the following considered judgments of the Board:

THE GUTENFELS

The Gutenfels is a German ship. Bound from Antwerp for Bombay and Karachi, she arrived at Port Said in the afternoon of August 5, 1914, and entered the port while still ignorant (as is now admitted) that hostilities had broken out between Great Britain and Germany. From August 5 to August 14 she was not free to leave. On August 14 she was informed that she was free to proceed if she liked. Matters so remained until October 13. She never asked for a pass. She was not offered one. On October 13, 1914, the Egyptian Government put a crew on board, and on October 16 they took her to sea and conducted her to H. M. S. Warrior, which seized her as prize and took her to Alexandria. It is admitted that this was done by arrangement between the Egyptian Government and the British Government.

At the date of these events war had not been declared between Great Britain and Turkey, and Great Britain had not declared. Egypt to be a protectorate. The date of the declaration of war with Turkey was November 5, 1914. The date of the declaration of the protectorate was December 18, 1914.

The Egyptian Prize Court has pronounced the ship to have belonged at the time of seizure to enemies of the Crown, and to have been seized in such circumstances as to be entitled to detention in lieu of confiscation, and has ordered the ship to be detained by the marshal until further order; and has further declared that, in accordance with the provisions of Article 2 of No. VI of the Hague Conventions, the ship must be restored or her value paid to the owners at the conclusion of hostili

ties. From this order the Crown appeals. There is no cross-appeal. The Crown contends that the ship ought to be confiscated, or, at any rate, that the question whether she ought to be confiscated, or whether, on the contrary, she must be restored or her value paid to the owners at the conclusion of hostilities, should be left to be determined after the war, and that in default of confiscation the order should be for detention till further order, with liberty to apply as in the case of The Chile (31 The Times, L. R. 3; [1914] P., 212). The respondents, having no cross-appeal, cannot contest the order which imposes detention.

The points which have been argued before their lordships are numerous. Upon some of them it is unnecessary to pronounce any opinion: First, to the Hague Convention No. VI. (which is the relevant Hague Convention, and will hereinafter be styled simply the Hague Convention) Egypt was not a party. The question has been raised whether, having regard to the anomalous position in which Egypt stood, the Hague Convention applies to Egypt. Their lordships find it unnecessary to determine this question. They will assume, in favor of the respondents, that the Hague Convention does apply to the case before them.

Secondly. The question has been argued whether Port Said was, within the meaning of the Hague Convention, an "enemy port"that is, a port enemy to Germany. Having regard to the relations between Great Britain and Egypt, to the anomalous position of Turkey, and to the military occupation of Egypt by Great Britain, their lordships do not doubt that it was. In Hall's International Law, Sixth edition, p. 505, the learned author writes:

When a place is militarily occupied by an enemy, the fact that it is under his control, and that he consequently can use it for the purposes of his war, outweighs all considerations founded on the bare legal ownership of the soil.

Their lordships think this to be right.

Thirdly. A question has been raised whether, in the events which have happened, the Hague Convention was operative and binding at the date of the events with which the Board are concerned in this case. The respondents say that it was. The law officers of the Crown have stated in the plainest terms that the British Government abide by the Hague Convention and look to Germany to do the same. The British Government, by the Order in Council of August 4, 1914, presently mentioned, acted under the Hague Convention. It is unnecessary to determine whether the Hague Convention applies or not. Their lordships will assume in favor of the respondents that it does.

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It results that the only question for determination is the construction and meaning of the Hague Convention, and that question reduces itself to the decision of a single point, viz., whether Article 2 is, or whether any part of it is, obligatory, or whether, if the course referred to as desirable" in Article 1 be not taken, Article 2 has or has not any application to a vessel which finds itself in an enemy port at the commencement of hostilities, or which, having left its last port of call before the commencement of hostilities, enters an enemy port without having heard of the hostilities. The respondents contend that it has, the appellants that it has not. The question is one of law arising on an international document involving a reciprocal obligation performable only at the end of the war. If this Board were now to determine this question of construction, Germany might hereafter take a different view, and the performance of the obligation, as a reciprocal obligation, might become impossible.

The order made by the Egyptian court determines that the ship must be restored or her value paid at the conclusion of hostilities. If this order were to stand and at the conclusion of hostilities Germany maintained that the construction upon which that order is based was wrong and refused to restore or pay the value of British ships seized and detained by Germany in like circumstances, the performance of the obligation as a reciprocal obligation would be impossible unless achieved by diplomatic action. In these circumstances the construction for which the respondents contend, involving as it does a reciprocal obligation performable only at the end of the war cannot at present be fully determined by their lordships in the absence of knowledge of the future attitude of the respective belligerents in that regard. Accordingly they think it incompetent to dispose of this question of construction at present.

It remains to apply the above considerations-subject to the above reservations to the case before the Board.

On August 4, 1914, an Order in Council was issued recognizing and acting upon Article 1 of the Hague Convention, conditionally upon Germany within a limited time doing the same. Germany did not do so, and the Order in Council did not come into operation. If this Order in Council included Egypt, the result of Germany's refusal to concur was that neither Article 1 nor Article 2, so far as it is complementary to Article 1, took effect as regards Port Said. If, as their lordships incline to think, it did not extend to Egypt, it may, of course, be set out of con

sideration. In either case nothing turns upon this Order in Council, except that it evidences the desire of Great Britain to take that which the Hague Convention indicated as the reasonable course. Their lordships do not forget that the respondents placed some reliance upon this Order in Council as assisting in the construction which they place upon the Hague Convention, but their lordships are unable to accept the view that it is of any service for this purpose. Even if at the date of this Order in Council Great Britain took a particular view of the construction of the Hague Convention, that fact throws no light upon the question. as to what is, in fact, the true construction.

On August 5, 1914, the Egyptian Government issued a "Décision," or decree, similar in some respects to the Order in Council of August 4. This granted days of grace to sunset on August 14 to ships of not more than 5,000 tons gross. But as the Gutenfels was more than 5,000 tons it did not apply to her.

The facts then are (assuming, as for the purposes of this judgment their lordships do assume, that the Hague Convention applies) that Article 2, so far as it was complementary to Article 1, never came into operation by reason of the fact that as between Great Britain and Germany the recommendation agreed to by Article 1 failed, by reason of the action, or, rather, the inaction, of Germany, to be carried into effect by the contracting parties. In these circumstances, there being nothing which entitled the Gutenfels to remain in the port (for she had long exceeded any such limited right as might arise from a right of passage through the canal, assuming that she had such a right), there was nothing to prevent the Egyptian Government and British Government acting as they did, and at the least seizing and detaining her during the war, to await at the conclusion of the war the determination of the questions above reserved. The order which, in their lordships' judgment, will be right will be an order allowing the appeal, and substituting an order in the terms of that in the case of The Chile (supra), leaving the ultimate rights between the parties to be determined after the war. Their lordships will humbly advise His Majesty accordingly. They think that each party should bear his own costs of this appeal.

THE BARENFELS

This vessel, bound from Hamburg and Antwerp to Colombo, Madras, and Calcutta, arrived at Port Said on August 1, 1914, and was still there on August 4 and 5. Except that she was in Port Said before and at the