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that in several wars in the second half of the preceding century the belligerents agreed upon and followed the practice of not molesting a vessel which was bona fide bound for a hostile port, and treated it in the same manner as a ship which at the outbreak of hostilities was actually within a hostile port; and that this practice ought to have been expressly laid down in the dispositions of the 6th Convention.
With certain limitations this may be true. It in no way alters the fact, however, that Germany reserved Art. 3 of the convention, according to which ships at sea which are without knowledge of the outbreak of hostilities do not come under the protection of the convention, which applies only to vessels actually within the hostile port at the commencement of hostilities (which does not come into question here) or which "touch at” such a port after the outbreak of hostilities.
Considered from a purely grammatical standpoint, "einen Hafen anlaufen” (to touch at a port) means the same as “in einen Hafen einlaufen ” (to enter a port). It may be granted, however, that at times the expression is used in a somewhat wider sense. In order correctly to understand the sense in which it is used in this convention, it is necessary to consider the original French text, since this alone is decisive upon a question of interpretation, the convention having been drawn in that language. “Entrant dans un port” however, as it stands there, means to enter a port. There is no necessity to construe this clause of the convention more widely than the wording requires, for even thus understood, a ship bona fide approaching a port does not lose the advantages of the convention, since even if she does not come under Art. 1, par. 2, she does come under the provisions of Art. 3. Accordingly, the convention comprises two, not three, categories of ships, as the claimants take it, viz., ships which at the outbreak of hostilities were actually within a hostile port or (what is considered as the same thing and therefore so treated in the same article) which enter it, and ships that are outside the port and therefore within the hostile state's territorial jurisdiction. These latter are considered as at sea (Art. 3). It would be arbitrary to consider within the first category ships which are bound for a hostile port and about to claim the right of asylum within the hostile state, and such a holding must be rejected if for no other reason than the difficulty of drawing a definite line of demarcation. Germany's willingness to make obligatory the granting of days of grace for departure has nothing to do with the question as to what ships are to be considered as at sea and what as touching a port.
That this interpretation, drawn from the French wording of the disposition in question, should, according to the general opinion, have been expressed in the convention is also evident from the protocol of the convention. In the reports of the Fourth Commission to the whole Conference, it is stated (according to Dr. Niemeyer, Urkundenbuch zum Seekriegsrecht, II Abb. p. 473) with regard to the disposition in question:
L'alinéa 2 vise le cas du navire entrant, qui a quitté son dernier port de départ avant la guerre et qui ignore l'ouverture des hostilités au moment où il arrive dans le port ennemi.
And the official English text of the convention, which was laid before Parliament together with the original text, reads, as far as it applies here:
The same principle applies in the case of a ship which has left its last port of de parture before the commencement of the war and has entered a port belonging to the enemy while still ignorant that hostilities had broken out.
From this it is clear beyond all doubt that Art. 1, par. 2, of the convention is to be read still more narrowly than was done by the judge of the lower court, namely, that it refers only to those ships which, without knowledge of the outbreak of hostilities, actually arrive at and enter a hostile port. So long as they are outside the harbor proper, even if in its immediate neighborhood, they do not come under the protection of Art. 1, par. 2, but are, on the contrary, for the purposes of prize law, to be treated as at sea, and so fall under Art. 3. Since this article has not been accepted by Germany, and the hostile ownership of the S. S. Fenix has been proved, she was rightly captured and is consequently subject to condemnation. Moreover, the British Prize Court in its 12th session when the case of the Möwe was heard, likewise gave a similar interpretation of the regulation in question. That vessel was on a voyage from Norderney to Bo'ness in the Firth of Forth, within which it touched at Morrison's Haven, on the 4th August, and on the following morning sailed for Granton “higher up the Firth of Forth." Thereupon the ship was captured and declared by the Prize Court to be a good prize. In the report of the case before the Prize Court, it is stated (Morning Post of Nov. 1, 1914):
The condemnation of the vessel was asked for by the Crown on the ground that when captured she was not within the boundary of any port in the sense in which the word was used in the Sixth Hague Convention of 1907. * The president had no hesitation in finding that she was captured at sea and not seized in port.
For these reasons, the legal claim of the ship-owners is denied.
The appeal of the firm of Gehrckens likewise appears unfounded. In so far as this claimant demands reimbursement of specified outlays as costs of the Prize Court proceedings, the claim is to be refused, since costs of legal proceedings cannot consist of outlays of third parties, particularly outlays which have nothing to do with the actual case. If the outlays were really made in the interest of the prize the claimants must prove them in the manner prescribed by the Prize Regulations. The firm of Gehrckens bases its claim furthermore on the fact that because of outlays made on behalf of the ship's captain, it had acquired a bottomry right on the ship, the proving of which was reserved in case of condemnation. Here, too, may be left out of consideration the question whether the firm on account of its outlays, or a part thereof, actually acquired a real right in the S. S. Fenix, since the bottomry right would at once become void upon the condemnation of the ship. Condemnation, according to prize law, is an original method of acquiring possession, an occupatio jure belli, which, according to generally acknowledged principles of international law, gives to the occupant the ownership of the object seized free of every encumbrance. The decision in the case of the Maria Glaeser, rendered by the English Prize Court at its third session after mature consideration of the practice of other prize courts, shows that the English Prize Court also takes this point of view. (The Times, 17th September, 1914).3 In that case it was a matter of a mortgage acquired by a neutral before the capture of the ship, and the consideration of the claim of the neutral mortgagee was denied on the ground that according to the principles of prize law, the rights of third parties in a captured ship cannot be recognized. It is also hinted in the decision that the case would not have been adjudged differently if the mortgagor had been a British subject.
In the present case the bottomry right is said to have arisen after the capture of the ship. According to the opinion of the Court of Appeal, however, this makes no difference in adjudging such bottomry right, since under prize law it is void as against the legal effect of seizure. The same is true of an alleged bottomry creditor in his capacity as citizen of the Empire. It is not evident why an exception should be made to the above mentioned principles in favor of citizens of the Empire.
Accordingly, both appeals are rejected. The awarding of the costs follows according to Sec. 37 of the Prize Regulations.
3 Printed in this JOURNAL for April, 1915 (Vol. 9), p. 531.
1 THE ELIDA
Imperial Supreme Prize Court in Berlin
Decided May 18, 1915
In the prize case re the Swedish steamer Elida, home port Karlsham, the Imperial Supreme Prize Court in Berlin, in its session of May 18, 1915, cancelled the judgment of the Prize Court at Kiel of December 8, 1914, and declared the claim for compensation to be fully justified, returning the case to the court of first instance to fix the amount of the indemnity. The decision upon the costs is reserved for the final decree.
On October 13, 1914, the Swedish S. S. Elida, with a cargo of wood (rafters), bound from Kago to Hull, was captured by a German torpedo boat near Trelleborg and taken into Swinemünde. The bill of lading read “to order”; the wood is said to have been sold by V. Svensson & Co. A. G. of Stockholm to Roberts, Cooper & Co. in Hull. The owner of the steamer, J. Ingmarssen of Stensnäs, avers that the seizure of the ship and cargo was illegal and claims damages. The Prize Court at Kiel decided that the steamer and cargo should be released, but that sufficient reasons existed to justify the seizure and that the claim for compensation should be dismissed.
The appeal from this decision is sustained.
The illegality of the seizure is first of all based on the fact that it took place within the zone of neutrality claimed by Sweden, i. e., within four miles of the Swedish coast. Whether this was really the case is disputed, whilst it is certain that the seizure took place outside the three mile limit. In any event this is of no importance, since this objection was properly dismissed by the judge.
It is true that a considerable number of states have extended by national law their territorial jurisdiction beyond the three mile limit, either generally or with regard to certain legal rights. This particularly applies to Sweden and Norway, which extended their national waters to a distance of four miles. A number of other states even went much further in this respect. But a special international title, valid in relation to the German Empire, and therefore to be taken into account by
1 Translated from the Hanseatische Gerichtszeitung Hauptblatt, Hamburg, No. 39, October 7, 1915, and the Zeitschrift für Völkerrecht, Vol. IX, No. 1, p. 109.
the prize court, does not exist, for up to the present time the Swedish claim has been recognized only by the Norwegian Government. According to official information from the German Foreign Office, Germany especially in the course of the discussions concerning this matter which took place in 1874, did not accept Sweden's point of view but treated the question of national waters as an open one, while England insisted upon the three mile limit. Similarly in 1897, when the Swedish Government addressed a communication to the German Legation at Stockholm concerning the fishery jurisdiction, the German Government restricted itself to raising no objection against Sweden's claim to a four mile boundary for the fishery and the question of the neutralization of this marine area in case of war was not thereby affected.
Therefore, under these circumstances, the decision must rest upon the basis of the German Prize Regulations, which in No. 3a forbids the application of prize law within a zone of only three nautical miles from the low water mark of neutral coasts. The Prize Regulations contain the principles laid down by the Kaiser as Commander in Chief within his Imperial jurisdiction for the practice of prize law pertaining to naval warfare, and are, therefore, primarily law not only for the Navy, but also for the inland authorities, particularly the prize courts, in so far as they have to pass upon the legality of the actions of commanders at sea falling within the prize law. International law only lays down rights and duties as between different states. The prize courts, when judging of the legality of prize actions, can take general international principles only into account when the Prize Regulations contain no instructions and, therefore, tacitly refer to the principles of international law. Therefore, the question whether an instruction of the Prize Regulations agrees with general international law is not for the prize court to decide. If a contradiction in this connection is asserted, the point in controversy is to be settled in another manner. Thus far this conception also agrees with the legal opinion of Professor Dr. von Liszt, produced by the claimants.
Contrary to this opinion, however, the Supreme Prize Court further is of the opinion that the instruction in question of the German Prize Regulations in no way violates the general principles of international law. Heretofore, the maritime boundary of states has been generally recognized in theory and practice as being three nautical miles distant from the coast. Originally, it was based on the carrying distance, corresponding to the gunnery technique of those times, of ships' and coast