Habana and the Lola (175 U. S. 677). The judgment of the court was delivered by Mr. Justice Gray. The conclusions which are stated by Mr. Justice Gray, and which form the judgment of the majority of the Supreme Court, were as follows:

This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high seas in taking whales or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce. This rule of international law is one which Prize Courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.

Since the date when that judgment was pronounced the matter has been dealt with by Japan in its prize regulations and in some of its Prize Court decisions, and it forms also the subject of one of The Hague Conventions of 1907. Article XXXV of the Japanese regulations governing captures at sea, which came into force on March 15, 1904, provides as follows:

All enemy vessels shall be captured. Vessels belonging to one of the following categories, however, shall be exempted from capture if it is clear that they are employed solely for the industry or undertaking for which they are intended:

(1) Vessels employed for coast fishery.

His Lordship quoted at length from the judgment of the Japanese Court in the case of the Alexander, and continued as follows: I do not propose to make any pronouncement in the case now before the court as to whether the German Empire or its citizens have in the circumstances of this war the right to claim the benefit of The Hague Conventions. But to show how the doctrine with which I am now dealing has been treated by the nations with the progress of years and events, I refer to Article 3 of the 11th Hague Convention of 1907, which is as follows:

Vessels employed exclusively in coast fisheries, or small boats employed in local trade, are exempt from capture, together with their appliances, rigging, and cargo. This exemption ceases as soon as they take any part whatever in hostilities. The contracting Powers bind themselves not to take advantage of the harmless character of the said vessels in order to use them for military purposes while preserving their peaceful appearance.

In this country I do not think any decided and reported case has treated the immunity of such vessels as a part or rule of the law of nations (vide the Young Jacob and Johanna, 1 C. Rob. 20, and the Liesbet van den Toll, 5 C. Rob. 283). But after the lapse of a century I am of opinion that it has become a sufficiently settled doctrine and practice of the law of nations that fishing vessels plying their industry near or about the coast (not necessarily in territorial waters) in and by which the hardy people who man them gain their livelihood, are not properly subjects of capture in war so long as they confine themselves to the peaceful work which the industry properly involves.

His Lordship continued: It is obvious that in the process of naval warfare in the present day such vessels may without difficulty and with great secrecy be used in various ways to help the enemy. If they are their immunity would disappear; and it would be open to the naval authorities under the Crown to exclude from such immunity all similar vessels if there was reason for believing that some of them were used for aiding the enemy. And this seems to be the sense in which the second paragraph of Article 3 of The Hague Convention should be regarded.

As to the Berlin, I am of opinion that she is not within the category of coast fishing vessels entitled to freedom from capture. On the contrary, I hold that by reason of her size, equipment, and voyage she was a deep-sea fishing vessel engaged in a commercial enterprise which formed part of the trade of the enemy country, and as such could be, and was, properly captured as prize of war. I therefore decree the condemnation of the vessel and cargo and order the sale thereof. (The Times Law Reports, Vol. 31, p. 38.)

THE MÖWE.

Decided November 9, 1914.

The decision states the facts.

The learned PRESIDENT, in delivering his considered judgment, said:

The Möwe was a merchant sailing vessel, of the port of Rhandermoor, in Germany. She was captured by His Majesty's ship Ringdove on August 5 in the Firth of Forth and taken to Leith. Her papers showed that she was a German vessel and had sailed from Norderney, and that her destination was Bo'ness. She arrived near Morrison's Haven between 7 and 9 o'clock p. m. on August 4. At this time hostilities between this country and Germany had not begun. The declaration of war was made as from 11 p. m. on that day. She came to anchor about a mile off the creek of Morrison's Haven. Early in the morning of August 5 the master weighed anchor and proceeded under way, according to his account, for Granton, about eight miles higher up the Firth of Forth. After being under way for about an hour, the vessel was captured as prize by the Ringdove, when, to use the words in the affidavit of her master, "she was in British territorial waters." In a subsequent paragraph he said the vessel was "taken at sea." It was not shown that the master knew of the outbreak of war, and for the purposes of this case it is assumed that he did not know. An appearance was entered in these prize proceedings by Harm Schier, "as owner of the vessel."

The first question for decision is whether, in the circumstances of this case, Schier, an admitted enemy subject and the owner of an enemy merchant ship, has a right to appear as a claimant in the proceedings; or whether he should be given such a right to assert whatever privileges he deems to be conferred upon him by the Sixth Hague Convention of 1907. The second question is whether the vessel was in an enemy port and not allowed to leave at the beginning of hostilities; or whether she was encountered and captured at sea, within the meaning of the convention. Assuming the question to depend upon the convention, in the former case the vessel is only to be detained and not confiscated in accordance with Articles 1 and 2; in the latter she is subject to condemnation, as Germany made a reservation with respect to Article 3, and is not a party to it.

As to the right to appear, I have already dealt with it in one of its aspects in the Marie Glaeser ([1914] P., at pages 221-223; 31 The Times L. R. 8). In that case an appearance in the proceedings was entered for the enemy owners, but at the hearing no one came forward to represent them. It was obvious that no ground could be shown either

1 Convention Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities.

under the Hague Convention or otherwise against the ship's capture and condemnation; and I ordered the appearance to be struck out. In the case now before the court it is contended that the claimant is entitled under the convention to appear to resist condemnation of his vessel, and to secure that the vessel is subjected only to a decree of detention without compensation during the war, or to requisition on making compensation. I will assume that The Hague Convention referred to is in force and applicable. I referred in the Marie Glaeser to some decisions of Lord Stowell and Dr. Lushington, and I will not repeat them. There are other decisions to the like effect; e. g., in the Falcon (6 Ch. Rob. 194).

The principle on which the Prize Court in the times of Lord Stowell and Dr. Lushington proceeded was that no one who was a subject of the enemy could be a claimant unless in particular circumstances that pro hac vice discharged him from the character of an enemy, such as his coming under a flag of truce, a cartel, a pass, or some other act of public authority that puts him in the King's peace pro hac vice. Otherwise such a person was regarded as totally ex lege.

In his argument the Attorney-General submitted two propositions as embodying the result of the authorities in this court, namely:

(1) Where an owner avowed his enemy character without qualification he was not a persona standi in judicio, and was not a person who had a right to be heard; and

(2) Where a person avowed that he was a subject of the enemy state in general, but had ground for urging that pro hac vice he stood in a position which relieved him from the pure enemy character, he was entitled to appear and to be heard; and the real question was under which of these two rules a German owner should be regarded when he came before the court.

In my opinion, that submission is well founded and accurate.

Reference was made in argument to cases in the American courts arising during the Spanish-American War in 1898. On examination it will be found that in almost all the cases where enemy claimants were heard at that time their claims arose in circumstances very similar to those in the class of proceedings which came before the British Prize Court during the Crimean War. But the authorities cited fall short of showing that in the United States any claimant who avowed an enemy character has been allowed generally to appear in their courts.

In argument before me Mr. Dunlop also compendiously referred to

cases which were heard during the Russo-Japanese War in 1904-5 and reported in the "Russian and Japanese Prize Cases," Vol. 1, page 182; and Vol. II, pages 1, 12, 39, 46, 52, 92, 95, 116, and 354.

His Lordship dealt with these cases because, he said, reliance was placed upon the liberty which was alleged to be given by the Russian and Japanese Prize Courts to enemy claimants, as adding force to the right asserted on behalf of enemy owners in this court. In each of the cases, however, complete immunity was claimed. All the cases were, of course, before The Hague Conventions of 1907. Under the Convention (No. VI) the attitude which the owner in the present case must take might shortly be stated in these terms: "I admit that I am an alien enemy; and therefore that my ship was lawfully captured, or seized, as being enemy property; but I wish to appear to put forward and argue my claim that in the circumstances of my case the ship is not confiscable, and cannot be condemned; but can only be detained during the war, to be restored to me after the war." Applying the principles laid down by Lord Stowell and Dr. Lushington, his Lordship was satisfied that they would not have allowed the enemy owner to appear to assert such a claim. There was here no coming pro hac vice within the King's peace; there was here no suspension of the hostile character.

His Lordship, continuing, said:

I desire to consider whether The Hague Convention (No. VI) is operative and applicable. I cannot close my eyes to the provision in Article 6 of the convention, which reads as follows:

The provisions of the present convention do not apply except between contracting Powers, and then only if all the belligerents are parties of the Convention.

By Articles 7 and 9 the convention requires to be ratified by the signatory Powers, and by Article 8 non-signatory Powers may accede to the convention. Similar articles appear in the other conventions. Of the belligerents in the present war at the time of the capture of the vessel, Germany and Austria-Hungary, and Belgium, France, Great Britain, Japan, and Russia had ratified the convention (Germany and Russia making reservations of Article 3 and part of Article 4). Of the other belligerents, Montenegro and Serbia (whose representatives signed the convention) have not ratified it. Turkey, who is now also a belligerent, has not ratified it. None of these states were non-signatory Powers, so there has been no accession on the part of any of them. In