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Imperial Supreme Prize Court in Berlin

Decided December 17, 1914

In the Name of the Empire!
In the prize case re the Russian steamer Fenix from Helsingfors, the
Imperial Supreme Prize Court in Berlin, on December 17, 1914, decided
as follows:

The appeal of the claimant is refused.
The costs of the appeal proceedings are awarded to the claimants.


On August 2, 1914, at 11:30 a. m., the steamer Fenix, hailing from Helsingfors (Finland), was, after war had been declared by Germany against Russia on August 2, captured not far from the mouth of the Elbe, between light-ship A and buoy A, about 100 km. distant from Hamburg, by a German torpedo-boat and soon after taken into Hamburg. After due compliance with the formalities of the Prize-Office and issue of the summons prescribed in Sec. 26, par. 1, of the Prize Court Rules, two claims were entered by the firm H. M. Gehrckens, of Hamburg, one in its own name on account of certain alleged outlays in behalf of the vessel and its crew made subsequent to the seizure, and the other in the name of the shippers-Helsingfors Angfartygs Aktiebolag-in Helsingfors, the ship-owner petitioning that the seizure be declared unjustified.

The Prize Court in Hamburg rendered judgment on Sept. 26, 1914, in which, among other things, it was held that:

The seized steamer Fenix is to be condemned.

1 Translated from the Hanseatische Gerichtszeitung Hauptblatt, Hamburg, No. 9, March 11, 1915, and the Zeitschrift für Völkerrecht, Vol. IX, No. 1, p. 103.

The claims of the owner and the firm H. M. Gehrckens are rejected. The costs of the legal proceedings must be borne by the claimants.

From this decision, which was delivered on October 8, 1914, the petitioners, in a written statement presented on October 13, 1914, made an appeal and justified the same on October 16, 1914. The petition is made:

1. In the name of both claimants: That, under a stay of execution of the appealed judgment, the steamer Fenix be released.

2. In the name of the claimant H. M. Gehrckens as an alternative: To modify the judgment to the extent of declaring that the condemnation of the steamer is allowed only on payment to the claimants of the amounts specified in the claim of the firm H. M. Gehrckens.

The Imperial Commissioner before the Supreme Prize Court moved that the appeal be dismissed. In the proceedings before the court of appeal, the representative of claimants proved the legal remedy and pleaded as follows:

I. Re the shipper's appeal.

1. The 6th Convention of the Second Hague Peace Conference (October 18, 1907) ought to have been taken into consideration in the Prize Court's judgment, even although only Art. 1, par. 1, was mentioned in the Prize Regulations; for the Prize Regulations founded on the Kaiser's powers as Commander in Chief do not govern the whole of prize law, especially those cases which do not arise upon the high seas.

2. Neither is the application of the above mentioned convention excluded by the fact that Germany withheld consent to some of its provisions, for Russia did that also. Likewise the fact that Servia and Montenegro did not ratify the convention stands just as little in the way of its application in this case, since they are not maritime states, and Art. 6 of the convention must be taken to mean that it shall not apply only if the belligerents, being maritime states, are not parties to it.

3. Nor is the application of the convention dependent upon the granting [by the belligerent governments) of days of grace for departure. This can be more definitely ascertained from the proceedings of the Second Hague Conference relating to this convention and the declarations made by the representatives of the various contracting states, parts of which were quoted by the representative of the claimants.

4. Concerning the interpretation of the law to be applied, the representative of the claimants pleaded, that Art. I, par. 2, and Art. 2 of the above mentioned convention must not be understood in too narrow a sense, and above all not to the effect that only ships which reached a hostile port or its immediate neighborhood before the outbreak of war should be exempt from the prize law. The whole convention is furthermore merely the outcome of the practice generally followed since the Crimean War, according to which not only those ships which were already in a hostile port at the time of the outbreak of the war, but also such as were on the way to such a port should be granted time for departure. This was laid down by French and Russian declarations in the year 1854, as well as by French and German declarations in the war of 1870–71. The United States of America likewise agreed to it in 1898 in the war against Spain. This practice, as is plainly evident from the words of the preamble, the convention in question intended to confirm, and it was only due to a mistake in drafting, which it is true tends to obscure the principle upon which par. 2 is based, that the respite for departure, the desirability of which is expressed, can be taken into consideration in the case of ships bound for a hostile port only after their arrival. The circumstance that Germany withheld its consent to Art. 3 cannot be taken to mean a limitation upon Art. 2, since Germany, according to the explanations of its representatives at the Conference, wanted to go so far as to make the practice obligatory.

5. Finally the claimant's representative contended that at the time it was captured the Fenix was already in the Elbe and therefore within German jurisdiction. A vessel is certainly entering a port (entrant dans un port as the original text of the convention reads) when, after passage through the national waters, she reaches the inner territory of the hostile state. This is also the meaning of the word "anlaufen" used in the German translation, which is not identical with "einlaufen.”

II. Re the appeal of the firm of Gehrckens.

In this case the representative of the claimants maintained the arguments brought forward by him in the first instance, and particularly referred to the fact that even if the amounts paid out by the firm of Gehrckens could not be awarded to them as costs in the prize court proceedings, the firm had certainly acquired a bottomry right on account of the payments made on the authority of the captain of the Fenix, the validity of which must be reserved in the judgment pronouncing the seizure of the ship. The judge of the lower court did not enter at all upon this point.

The Imperial Commissioner contradicted these arguments, and re garding the interpretation of Art. 1, par. 2, of the convention, referred to the fact that this provision was construed very narrowly by the English Prize Court, as evidenced by the case of the German vessel Möwe, which was captured in the inner waters of the Firth of Forth, because it was held that she was at sea there. The English Prize Court confirmed this holding.

REASONS FOR THE DECISION The appeal is in order as to time and form and is justifiable, but without foundation.

The Court of Appeal agrees with the claimants in presuming that the stipulations of Convention No. 6 of the Second Hague Conference must be taken into consideration in the case under review, although they have not been expressly included in the Prize Regulations. Why this was not done need not be discussed. At all events, the convention named is a state contract ratified by the German Empire, and published in the Imperial Legal Gazette, and as such it must be taken into consideration by the prize courts.

Likewise, the fact that Germany refused to agree to Art. 3 of the convention does not prevent the consideration of the remaining parts. Neither in the opinion of the Court of Appeal, is the granting (by the belligerent governments) of days of grace for departure necessary for the application of the convention, since such a limitation upon its applicability is not evident from the convention itself; but, on the contrary, Art. 2, par. 1, 2nd alternative, refers to a ship which is not allowed to leave, in which case, therefore, there can be no question of the granting of days of grace for departure.

Finally, the circumstance that the belligerent states Servia and Montenegro did not ratify the convention raises no doubt, for the reasons advanced by the claimants, concerning its applicability to the case under review; but it may be left undecided whether the dispositions of the convention would not have to be taken into consideration as generally acknowledged principles of international law, even if they were not brought into question by virtue of a treaty.

The Court of Appeal, however, can not agree with the claimant's arguments concerning the interpretation and wording of Art. 1, par. 2, of the convention. First, the claimant's arguments may be summed up to the effect

2 Printed in this Journal for April, 1915 (Vol. 9), p. 547.

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