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guns. It is true that now-a-days this reason is no longer applicable. Here however the axiom cessante ratione non cessat lex ipsa applies, and although numerous proposals and opinions have been put forward with regard to a different delimitation of the national waters, it cannot be asserted that any other method has in practice met with the general concurrence of the maritime states. This is also true of the view put forward in the above mentioned opinion, according to which each individual state is entitled to extend, by means of independent regulations, the boundary of its national waters beyond the three mile zone as far as gun range, the former limit nevertheless to be regarded as a subsidiary international boundary. With the range of present day guns this would lead to quite intolerable conditions, and give to single states the possibility of including within their national territory extensive tracts of the open sea the freedom of which is in the interest of all maritime states. To a certain extent this is also acknowledged by Liszt in his opinion, for according thereto the regulation of the individual state is not alone sufficient; the absence of objection on the part of other states is also required. Thereby in reality the permissibility of an extension of the territorial waters is founded not so much upon the independent regulation by the single state, as upon the supposition of a tacit acknowledgment of such an extension by the other states. A mere failure to object, however, is not identical with a positive concurrence of the nations. Furthermore it must be remembered that even if the exercise by a maritime nation of certain official functions, such as those of the health and customs authorities, is tolerated beyond the three mile zone, this by no means represents a concession to the effect that in all other respects the waters in question are included within the territorial jurisdiction. Accordingly, in more recent international agreements to which a number of maritime states were parties, as, for instance, in the agreement of May 6, 1882, for the police regulation of the North Sea fisheries, and in the convention of October 29, 1888, for the neutralization of the Suez Canal, the three mile boundary was recognized as the standard. Likewise, according to official information from the Foreign Office, in the second session of the International Congress for the Protection of Submarine Cables, held at Paris on October 18, 1882, Germany's representative explicitly declared, without meeting with opposition, that by the term “coastal waters" a zone of three miles was to be understood. Furthermore, according to the same official information, the British Government during the negotiations in the year 1911 with re
gard to the holding of an international congress for the regulation of the question of coastal waters, decidedly adhered to the three mile zone; and, accordingly, even in the present war, it had Admiral Craddock inform the Government of Uruguay that it would not recognize the claims of Uruguay and Argentina to an extension of the territorial waters beyond the three mile zone. It can, therefore, be still less assumed that this boundary has been supplanted by another generally acknowledged international regulation.
In the case under consideration, however, the legality of the seizure should have been denied for another reason.
In agreement with the court of first instance, it is to be taken that the wood,—which after the release of the ship and cargo was sold in Luebeck-was not contraband. In this respect only item 9 of the List of Conditional Contraband, as it was in force at the time of seizure, would come into question, namely, “Material for Fuel (Greases).” The cargo consisted of beams, i. e., trunks cornered by means of the hatchet, in this case up to 22 feet long, and 4x4 up to 8x9 inches wide, part of the tenon ends being unhewn. The experts Homann and Bockmann, it is true, estimated their value as small, i. e., M. 15 per cubic meter, whereas they valued firewood at M. 8 the cubic meter. The expert Liebnitzky, on the contrary, assessed the value at M. 25, and at the same time pronounced the wood to be squared timber, such as is used in large quantities in Germany for building purposes, particularly from Vorpommern westward. The experts who viewed the wood during its discharge at Luebeck agreed with this opinion in so far as to declare the cargo to have undoubtedly consisted of squared building wood. In accordance therewith at the sale in Luebeck the wood brought the price of M. 28. 58 the cubic meter.
Without doubt therefore it was not firewood, but timber.
When the Declaration of London in Art. 24 and the Prize Regulations in No. 23 speak of fuel, this must be taken to mean such material as, according to the conditions of price and transportation, is really used for the purpose of fuel, since it is generally obtained prepared and transported to its destination for this object. Particularly wood for fuel, firewood, naturally differs from timber of every description, since through the preparation of the former, the latter has generally risen considerably in value. On the other hand, it must be taken into account that the prize court instructions are designed for the event of war, and must be therefore read in such a way as to exclude the possibility of evasion. It is not, therefore, merely a question of the customary designation of the trade, for, if such were the case it would be possible, by means of a preparation which entailed no extra costs, or at least insignificant ones, to give to the wood a character which would deprive it of its contraband nature without its use as fuel producing a useless loss of important economical values. Even firewood requires a certain treatment or preparation, the cost of which is hardly lower than that of inferior kinds of timber, particularly timber for mines. A fine line of distinction is not drawn here. It was, therefore, quite in accordance with the legal position created by the Prize Regulations, when the German Foreign Office informed the Swedish Government in September, 1914 that all kinds of unmanufactured or crudely manufactured woods were regarded as conditional contraband, as they could be used as fuel and, according to circumstances, were actually used as such, also timber for mining and paper wood, crude or with bark removed; but, on the contrary, not such kinds of wood as had on account of hand or machine treatment, risen considerably in value so that their use as fuel would mean the destruction of the economic values expended on them, and when subsequently,-quite in accordance with what is there said, the Prize Regulations were explained by the proclamation of November 17, 1914, in the Imperial Legal Gazette. It is, however, clear that wood like the kind in question cannot be brought even under the category of wood for fuel as thus elucidated. This also agrees with a declaration given to the Swedish Government through the German Ambassador at Stockholm on August 28, 1914, according to which planks, sawn beams and cornered building wood would not be considered as contraband.
So far the disputed decision is confirmed, but it cannot be conceded that the first judge was correct in deciding with regard to compensation that the wood in question was a doubtful case of classification, and that therefore sufficient reason existed for seizure. The ship's commander must have seen, and did see, that it was not a case of firewood. He also could not have been in doubt that it was not timber for mines. According to the Prize Court, the cargo consisted of beams, and the seizure was made because the “cargo could be used as timber for mines" and, further, —" because the nature of the wood gives rise to the supposition that it was to be used as timber for mines." This was incorrect. After all, every kind of wood can be used as fuel. It cannot therefore be a question of this possibility. It is the objective character of the wood, as specified above, which is actually decisive. Therefore, even if it be granted that mining timber is fuel in the sense of the Prize Regulations, cornered wood must not be declared fuel simply because it might perhaps be used as timber for mines. The officer may have made an excusable mistake, but it was not one concerning the nature of the cargo. If he nevertheless decided to seize it, this was because he interpreted the Prize Regulations incorrectly, and inadmissibly extended the conception of fuel. Incorrect interpretation of the Prize Regulations, however, can never be regarded as sufficient ground for seizure. Whether the ship's commander is at fault or not, is not the question.
Wherefore, the petitioner's claim, in so far as he, in his capacity of owner of the Elida, has suffered loss, appears fundamentally justified, and it need not be inquired into whether, as claimant asserts, these or other presumptions for seizure were also wanting.
Imperial Supreme Prize Court in Berlin
Decided September 17, 1915
In the name of the Empire: In the prize case of the English steamer Glitra, home port Leith, the Imperial Supreme Prize Court in Berlin, in its session of July 30, 1915, rendered the following judgment:
The appeals of the claimants named under Nos. 9 and 12 of the disputed judgment are rejected as inadmissible; the appeals of the other claimants are rejected as unfounded. The costs of the appeal are to be borne by the claimants.
REASONS On October 20, 1914, the steamer Glitra, belonging to the firm of Salversen & Co., of Leith, and bound with a cargo of piece goods from Leith to Stavanger, was captured by H. M. Submarine U 17 in 50° 4' N. Lat., and 50° 14' E. Long., and sunk, with her cargo, after the crew had left the ship. In reply to the request of the Prize Court, according to Sec. 26 of the Prize Court Rules, the 13 parties mentioned in the disputed judgment as possessing interests in the cargo, claimed compensation on account of the destruction of their property. The claimants are partners of Norwegian firms; claimant No. 2 is a Danish Insurance Company, representing the rights of its Norwegian insurer.
1 Translation from copy of decision furnished by the Department of State.
The Prize Court decided that the ship sunk was liable to seizure, and rejected the reclamations.
The appeal taken against this judgment is unfounded.
In the first place the Prize Court ascertained that without doubt the Glitra was an English ship, and that according to the circumstances the destruction of the ship was necessary in order to ensure capture. It left undecided the question, whether the goods for which claims for indemnification were entered belonged to neutrals, because it came to the conclusion that even if this were proved in the affirmative, a claim for compensation did not exist. It is stated as the reason for this that the question under discussion is not decided either in the Prize Regulations nor in international agreements, namely, in the Declaration of London, as is clear from the document itself and the history of its origin. Opinions are divided. In the French memorandum presented to the Conference of London it is declared that the owners of neutral cargoes have no claim for indemnity, because if the captor considers the destruction of the prize as necessary for military reasons it is an act of war, while the English memorandum acknowledges the claim, if it is not for contraband, because a non-prohibited cargo on board a hostile ship is not liable to seizure. The basis leading for the preparatory discussion of the conference of London
Considering the principle that neutral goods shipped on vessels flying an enemy's flag are not subject to seizure, is the owner of certain goods forming part of the cargo of a vessel destroyed, entitled to claim indemnity, or is the destruction of the ship in such cases an "act of war” which does not obligate the belligerent nations to the payment of an indemnity?
was debated, without an agreement being reached. Quite the predominating point of the debates was the question of the admissibility of the destruction of neutral vessels which were liable to seizure. In mitigation of such a case, Germany was in favor of allowing the neutrals a right to indemnity for goods not liable to seizure.
Japan only expressed an opinion regarding neutral goods on board a destroyed hostile vessel, namely, in conformity with the standpoint taken by England. There is nothing to support the assertion that Germany nevertheless, under these circumstances, was in favor of laying down as a principle of prize law, that in case of the destruction of a hostile ship the owner of the neutral cargo should have a claim for compensation. An argument in favor of this might at the most be found in