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THE alleged use by the Emden of the Japanese flag, whereby on the 28th ult, that vessel got right up to the Russian cruiser Femchung and a French torpedo boat at Penang and contrived to torpedo both, was a ruse of war allowable by international neutrality, provided that the false flag was removed and the German flag flown before actual attack. Art. 24 of the Hague Regulations permits the employment of ruses for the purpose of deceiving the enemy, and art. 23 (6) of these regulations does not prohibit the use of the national flag, the military ensigns, and the uniforms of the enemy, but only their improper use, thus leaving the question open what uses are proper and what are not. Nelson, for instance, used false colours when he lay off Barcelona, for a long time showing the French flag with the object of drawing the French ships then allied with Spain. As regards the use of a false flag, it is by most publicists considered perfectly lawful for a man-of-war to use a neutral or the enemy's flag when chasing an enemy vessel when trying to escape, and for the purpose of drawing an enemy vessel into action. On the other hand, it is universally agreed that immediately before an attack a vessel must fly her national flag. Stratagems are to be carefully distinguished from perfidy, since stratagems are allowed, whereas perfidy is prohibited. Halleck formulates the distinction by laying down the principle that whenever a belligerent has expressly or tacitly engaged, and is therefore bound by a moral obligation to speak the truth to an enemy, it is perfidy to betray the latter's confidence, because it contains a breach of good faith.
THE WAR AND THE DECLARATION OF LONDON. ONE of the reasons why opinion in this country was adverse to the ratification of the Declaration of London was that under it there would be practically no prohibition of the importation of conditional contraband into continental countries. It was realised that Germany, for instance, might be able to obtain food and other supplies by importing them through Dutch and Scandinavian neutral ports without the ships carrying the supplies being liable to capture. That is what has happened, and the significance of the second Order in Council which has been made as to the application of the Declaration of London to naval operations during the present hostilities lies in its bearing upon the transit of supplies to Germany through neutral ports.
The first Order in Council, made shortly after the outbreak of war, recited that, in order that the operations of the allied British, French, and Russian naval forces, so far as they affected neutral ships and commerce, should be conducted on similar principles, it was the intention of the allied Governments to act in accordance with the provisions of the Declaration of London so far as practicable. The declaration was therefore adopted subject to some modifications. The lists of absolute and conditional contraband which had been proclaimed were substituted for those contained in the declaration itself, but in other respects the terms of the declaration were not modified to any very great
Since then it has become evident that the loophole afforded by the declaration cannot be allowed to continue as supplies have been reaching the enemy through neutral ports, and a further step has accordingly been taken. By the second Order in Council, dated the 29th Oct. (reprinted in last week's LAW TIMES, p. 18), very important modifications of the provisions affecting neutral trade have been made. The liability of conditional contraband to capture has been placed on quite a different basis. In addition, the lists of absolute and conditional contraband have been further revised, but the main point to note is that the principle now governing liability to capture and condemnation as prize has been altered with the object of preventing neutral ships from carrying cargo destined ultimately for the enemy.
No new rule or princip'e is introduced by the alteration. It would be more correct to say that the Declaration of London altered the position as previously understood, and that we now revert to what had been understood as an established rule of international law.
The question of destination was referred to in the official instructions to the delegates who represented the British Government at the conference in 1909 at which the Declaration of London was drawn up. Those instructions pointed out that, as regards the question of destination as an element in the contraband character of particular goods, the more widely established rule was that the destination of the contraband cargo, and not that of the ship
In other words,
by which it is conveyed, is the decisive factor. it might be said that the fact of the destination of the carrying ship being a neutral port would not relieve the cargo from condemnation if it was established that the contraband did in fact possess a belligerent destination. The official instructions added that this principle might rightly be extended not only to cases where the contraband was to be carried on to the enemy after transhipment, but also to cases where the goods were forwarded by land transit through neutral territory.
The Declaration of London, instead of extending this principle, reversed it. For conditional contraband the doctrine of continuous voyage was excluded, and it was laid down by art. 35 of the declaration that conditional contraband is not liable to capture except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port.
This article was one of those strongly objected to by many persons at the time. By agreeing to it, it was said that we should be presenting the foreign nations of Europe with a safe conduct pass for all their foodstuffs, and that Germany, for instance, would be able to obtain all the food she might require through neutral ports.
This has not proved a groundless fear, and accordingly the new Order in Council provides that, notwithstanding the provisions of art. 35, conditional contraband shall be liable to capture on board a vessel bound for a neutral port if the goods are consigned to order," or if the ship's papers do not show who is the consignee of the goods, or if they show a consignee of the goods in territory belonging to or occupied by the enemy. It is further provided that it shall lie upon the owners of the goods to prove that their destination was innocent.
The Order in Council also authorises a Secretary of State, if satisfied that the enemy Government is drawing suppl es for its armed forces from or through a neutral country, to direct that, in respect of ships bound for a port in that country, art. 35 of the declaration shall not apply at all, so that a ve sel carrying conditional contraband to a port in that country would not be immune from capture.
The order also deals with goods consigned to an agent of the enemy State.
The Declaration of London in many respects lays down satisfactory principles, but on a number of points it is open, and, as everyone knowe, it has in the past been subjected to much criticism. It has now been found necessary, in the light of actual experience, materially to modify it. The course of events suggests that its permanent ratification without modification has become more unlikely than ever. On the other hand, the hopes of those who preferred postponement in the expectation of bringing about ultimately the adoption of a more universally acceptable convention may eventually be found to have been brought nearer realisation by the unexpected development of international affairs
Inter arma silent leges. Forgetting this maxim, numerous members of the public are writing to the newspapers demanding a legal opinion as to what they are to do if the enemy invades this country. In what conditions may they safely fire without exposing the entire civilian population, includ ng women and children, to reprisals?
Jeremy Bentham long ago showed that law has no meaning without a sanction-that is to say, without something which the offender will have to hope from the observance or to fear from the non-observance of the law.
The sanctions are four- legal, religious, moral, and popular. Legal sanction is out of the question in the present case. courts have no power in the matter to reward those obedient to the law or to punish those disobedient; and no international court exists with any power at all. We cannot do more to punish the enemy by force than we are already doing. Punished he will be, we verily believe, but punished whether in future he obey the so-called law or whether he disobey it.
Religious sanction is equally powerless in this instance. What has the German enemy to hope or fear from the God he worships? His theory is that there is a tutelary deity of Deutschland, and that he is pleased with anything-even a "certain fearfulness -which is calculated to advance the interests of the German nation.
Moral sanction is perhaps a little more effective. We refuse to believe that German soldiers as a whole are entirely without morality that they conceive it to be in accordance with the principles of courage and bravery to advance behind a shield of women and children or to fire on or torture defenceless and inoffensive civilians. But the moral sanction will be none the more or the less effective according to the
answer given by Professor Holland or any of the authorities
Popular sanction alone remains. This is the only sanction
International law is useful to the Law Courts and the Profession for the purpose of deciding what on our part is the just and right thing to do. It is utterly useless and mischievous if invoked by the general public as a shield and protection against any danger which may threaten them from the enemy. In this connection the less the general public knows or thinks about international law the better. One of our greatest international lawyers is said to have recently expressed the opinion that the study of his life had been largely expended in vain.
We need not go to any elaborate principle of international law for an example. One of the first and most elementary principles of international law, as of all other law, is that a contract solemnly and deliberately entered into ought to be kept. Both Germany and Austria have openly, cynically, and purposely repudiated their contracts whenever they were inconvenient.
The law-if it be a real law, effectively upheld by at least one of the four sanctions and have for its sole object the maintenance of justice-is one of the highest and most precious things on earth.
International law as administered in our courts is worthy of the highest respect, and the reputation which it enjoys and will enjoy in other countries is a possession of the greatest practical value.
But international law, as regarded by peace societies and amateur statesmen who seem to think that it can take the place of sailors and soldiers, of battleships and guns in time of war, or of good intelligence work in time of peace is a delusion and a
If, therefore, anything is written in law books regarding what is the voice of "international law" on this subject or on that, we should like to emphasise to our lay readers, and to such lawyers as, immersed in the study of the law, have forgotten something of the philosophy of the law, the fact that international law has its limitations. We shall endeavour to observe and maintain the principles of international law; but we shall never for one moment trust anything important to the probability of its observance by those who have openly set at naught its first elementary principles. If international law says to the enemy "thou must not fire" on this occasion or on that, we shall take cover all the same and prepare to return his attack. Inter arma silent leges.
THIS was a case in which the Mowe, a German sailing vessel, of the port of Rhandermoor, in the German Empire, was captured in the Firth of Forth on the 5th Aug. 1914 by H.M S. Ringdove, and taken into Leith, and the court was asked to condemn both the vessel and her cargo as being an enemy vessel captured on the high seas, and not in port" in the sense of that term used in Convention VI. of the Hague Conference 1907. The important question of the right of an alien enemy to appear in an English Prize Court was also raised.
The Attorney-General (Sir J. S mon, K.C.), T. E. Holland, K.C., and Bentwich for the Crown.
Dunlop for the owner of the vessel.
All the facts and the arguments adduced are sufficiently set out in the judgment. In addition to the cases referred to by the learned President, the following were cited by counsel : The Phonix, Roscoe's Prize Cases, vol. 2, 439; Robinson and Co. v. Continental Insurance Company of Mannheim, 137 L. T. Jour. 565.
Cur. adv. vult. Nov. 9.-The PRESIDENT.-The Möwe was a merchant sailing vessel of the port of Rhandermoor, in Germany Her master was
(a) Reported by J. A. SLATER, Esq., Barrister-at-Law.
Harm Schier, a German subject. He was also the sole owner of the vessel. She was captured by His Majesty's ship Ringdove on the 5th Aug. in the Firth of Forth and taken to Leith. Her ship's papers showed that she was a German vessel and had sailed from Norderney, and that her destination was Bo'ness, in the Firth. The master has deposed in his affidavit that he was bound to Morrisonshaven for coal. This statement is incorrect, but I can pass it over as it does not affect any issue in the case. She arrived near Morrisonshaven between seven and nine o'clock p.m. on the 4th Aug. At this time hostilities between this country and Germany had not begun. The declaration of war was made as from eleven p.m. (English time) on that day She came to anchor about a mile off the Creek of Morrisonshaven. Early in the morning of the 5th Aug. the master weighed anchor and proceeded under way, according to his account, for Granton, a port 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, between Morrisonshaven and Granton." 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
The first question which arises for decision is whether. in the particular 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 in order to assert whatever privileges he deems to be conferred upon him by the Sixth Hague Convention of 1907. The second question to be determined is whether the vessel was in an enemy port and not allowed to leave at the commencement of hostilities; or whether she was encountered and captured at sea, within the meaning of the Sixth Hague Convention of 1907. 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 arts. 1 and 2; in the latter she is subject to condemnation, as Germany made a reservation with respect to art. 3, and is not a party to it.
Pending the decision upon the first question, I allowed Mr. Dunlop (who was instructed to appear for the enemy owner) to present his arguments fully as amicus curia upon the two questions to be decided.
The question of the right to appear naturally comes first. I have already dealt with this matter in one of its aspects in The Marie Glaeser (137 L. T. Jour. 468; (1914) P. 218). 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 under the Hague Convention or otherwise against the ship's capture and condemnation; and I ordered the appearance to be struck out both on the ground of the insufficiency of the affidavit upon which the appearance was founded, and on the ground that there were no substantial special circumstances which could be put in any other affidavit in support of any valid claim. (I may mention incidentally that the gentleman who made the affidavit as agent for the owners was recently, if I mistake not, convicted at the assizes for the offence of trading with the enemy.)
In the case now before the court, although the affidavit of the claimant is not very aptly drawn to set forth a claim, it is contended that he is entitled under the said Hague 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 requisition upon making compensation. I will assume that the ffidavit sufficiently disclosed the special circumstances in which this contention is put forward. I will also assume that the Hague Convention referred to is in force and applicable. Upon this a word will be said later.
I referred in The Marie Glaeser (ubi sup) 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 C. Rob. 194).
In the following passages Lord Stowell deals with the disabilities of citizens of a hostile State in this court, and of citizens of this country in the courts of an enemy :
"He is, it seems, invested with the character of the American Consul at Bordeaux; and certain it is that an American Consul resident in France is subject to all the difficulties of a French merchant, as to the power of becoming a claimant in this court": (ibid, p. 197).
"But I am to recollect who the persons are from whom the objection comes. They are British subjec s, who could have no persona standi there, and could not have been parties to the proceedings either in the court of Leghorn or Paris without stating themselves out of court. It was impossible that the
proceedings could be otherwise conducted; and, therefore, I cannot think that the absence of the parties, which is urged as a fundamental defect, is material in such a case. It is nothing more than what takes place here in cases of common condemnations, which do not rest solely on the effect of the monition, but pass on a view of the evidence of the case. The enemy proprietor is necessarily absent by operation of law, and yet the sentence is completely valid, as well against him as against all the world" (ibid., p. 199).
All the forms since the days of Sir Wm. Marriott, Lord Stowell's predecessor, down to the present day accord with the principle and practice promulgated by Lord Stowell in The Hoop (1 C. Rob. 196): (see Marriott's Formulary," passim).
These are followed in some of the forms appended to the recent Prize Court Rules 1914. See form 13, where this paragraph appears: "There were at the time of such capture no contraband goods on board the said ship, and no subject of (insert the name of Government at war with Great Britain) or enemy of Great Britain had at the time of such capture, or at any other time material to the matters in this cause, any share, right, title, or interest in the said ship or cargo or any part thereof.' Far be it from me to wish to decide on mere matters of form unless compelled thereto by the law; I only cite them to illustrate the principles and practice.
A claimant in a Prize Court is not in a position analogous to that of a defendant, but rather to that of a plaintiff. In the writ the owners of a vessel are not made defendants. But I wish to avoid complicating this case with any discussion of the position or rights of alien enemies in legal proceedings in the King's Bench or our other municipal courts.
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 under particular circumstar ces that pro hâc vice discharged him from the character of an enemy, such as his coming in 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 hâc vice. Otherwise such a person was regarded as totally ex lege. In the words of Mr. Justice Story, in his authoritative work on Prize Courts, "An enemy cannot interpose a claim unless under the protection of a flag of truce. a cartel, licence, pass, treaty, or some other act of the public authority suspending his hostile character": (Pratt's Story, p. 21). In this passage Mr. Justice Story adopted the words of Lord Stowell in The Hoop (ubi sup.), adding by way of illustration the words "licence" and "treaty."
In his argument the Attorney-General submitted two proposi tions as embodying the result of the authorities in this court, viz :
(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 hâc vice he stood in a position which relieved him from the pure enemy character, he was entitled to appear and to be heard; and that 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.
Practical illustrations of the second proposition were frequently afforded in the time of the Crimean War, when claimants appeared on the ground of the immunity of their ships from capture by reason of the Order in Council dated the 29th March 1854. This Order in Council is set out at p. 3, Appendix D, in Spink's Prize Cases. That order allowed six weeks to Russian merchant vessels in any ports or places within the British dominions for loading their cargoes and departing from such ports or places, and also gave permission to such Russian vessels if met at sea by any of Her Majesty's ships to continue their voyage if their cargoes had been taken on board before the expiration of the six weeks. The order also granted permission to any such Russian vessels which prior to its date should have sailed from any foreign port bound for any port or place in the British dominions to enter and discharge their cargoes, and afterwards forthwith to depart without molestation, and if met at sea to continue their voyage to any port not blockaded. In short, the Order in Council exempted entirely from capture Russian merchant vessels in the special circumstances therein specified.
Claimants whose vessels were within the special terms of the order therefore brought themselves within the category of persons who were within the Queen's peace pro hac vice, and who were relieved from their enemy character or had their hostile character suspended during the operation of the Order in Council. They were accordingly heard as claimants in the Prize Court
Reference was made in argument to cases in the American courts arising during the Spanish-American War in 1898. Upon 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 already referred to which came before the British Prize Court during the Crimean War.
At the outbreak of the war between the United States of America and Spain the President of the Republic issued on the 26th April 1898 a proclamation exempting Spanish ships from capture in terms practically identical with the Queen's Order in Council exempting Russian ships forty-four years earlier. Arts. 4 and 5 of the President's Proclamation were obviously framed upon the British Order in Council of 1854.
Following upon this proclamation of the President, the cases cited before me came before the United States courts. The Pedro (175 U. S. 354) turned upon arts. 4 and 5 of the proclamation. The Guido (ibid. 382) simply followed The Pedro. The Buena Ventura (ibid. 384) depended upon the application of art. 5 of the proclamation. The Panama (176 U. S. 535) was also decided upon arts. 4 and 5 of the proclamation. The other case cited-namely, The Paquete Habana and The Lola (175 U. S. 677)-did not depend upon the provisions of the proclamation; but it is to be observed that the claim there put forward and decided was also that the vessel was "exempt from capture." There may be other cases which I have not been able to examine in which enemy claimants were allowed to appear in the United States courts. And there may be regulations touching the matter which I have not seen. 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, p. 182, and vol. 2, pp. 1, 12, 39, 46, 52, 92, 95, 116, and 354.
Upon examination of these cases again, it appears that they dealt with claims either of neutrals, or of claimants whose contention was that their property was entirely immune from capture and from sentence of condemnation. In most of them the claim was founded (no doubt among other grounds) upon the Japanese Imperial Ordinance No. 20, of the 9th Feb. 1904, which allowed days of grace to certain Russian vessels upon the same lines as the British Order in Council of 1854 and the United States Proclamation of 1898: (see Ordinance Appendix C, vol. 11, of Russian and Japanese Prize Cases, p. 445). In The Tetartos, (vol. 1, 166), in the Russian Prize Court, the original claimants were the neutral owners of a German ship which a Russian cruiser captured and sank. It was ultimately held that the ship was wrongfully sunk. Thereupon the liquidator of what was apparently a Japanese company (the Teshio Timber Company, of Otaru), the owners of the cargo which was in the captured ship, and was also wrongfully sunk, made a claim, which was allowed. The other cases reported in the pages referred to in vol. 2 were heard in the Japanese Prize Courts.
In The Ekaterinoslav (vol 2, 1) the owners of a Russian vessel claimed exemption from capture on grounds (inter alia) coming within the Days of Grace Ordinance (No. 20) already referred to. The Mukd n (vol. 2, 12), The Rossia (vol. 2, 39), and The Argun (vol 2, 46) were also cases in which exemption was claimed (among other grounds) under the same Ordinance. In The Manchuria (vol. 2, 52), and The Lesnik (vol. 2, 92) the Ordinance was relied upon; and in the former case a claim was made on behalf of neutral insurers. The claim in The Kotik (vol. 2, 95) was for exemption as a fishing vessel, and also under Ordinance 20. In The Thalia (vol. 2, 116) the vessel was seized in a repairing dock, and the basis of the claim was that she was property land," and therefore exempted from capture. And in The Orel (vol. 2, 354) the capture was said to be wrongful as the vessel was a hospital ship, and therefore immune. But it was held, notwithstanding, that she was guilty of hostile acts, and therefore subject to condemnation.
I have dealt briefly with these cases, because reliance was placed upon the liberty which was said 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, which I have examined complete immunity was claimed, as I have said. As to Russia, I observe that art. 60 of the Regulations Relating to Naval Prizes (1895) deals with "original owners of the captured property' general terms; but I cannot say how these words would be construed.
All the cases mentioned were, of course, before the Hague Conventions of 1907. Under the Hague Convention (No. VI.) the attitude which the owner in the present case must take may 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 to 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, I am satisfied that in their day they would not have allowed the enemy owner to appear to assert such a claim. There is here no coming pro hâc vice within the King's peace; there is here no suspension of the hostile character. As to what those eminent judges would have done if they had lived at the present. day, I would not hazard a conjecture.
As before indicated, I desire to say a word as to whether the Hague Convention (No. VI.) is operative and applicable. I cannot close my eyes to the provision in art. 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 to the Convention." By arts. 7 and 9 the Convention requires to be ratified by the signatory Powers, and by art. 8 non-signatory Powers may accede to the Convention. Šimilar articles appear in the other Conventions enumerated hereafter. Of the belligerents in the present war at the time of the capture of the vessel, Germany and AustriaHungary, and Belgium, France, Great Britain, Japan, and Russia had ratified the Convention (Germany and Russia making reservations of art. 3 and part of art. 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 nonsignatory Powers, so there has been no accession on the part of any of them. In strictness, therefore (apart entirely from the question whether the enemies of this country are acting under or in accordance with the Convention), it is not clear that the Convention is binding or applicable.
It is not my function or province to do anything more than to declare the law. But I trust that I shall be forgiven for a humble expression of opinion that it would accord with the traditions of this country if such steps were taken as may be necessary to make operative a series of Conventions solemnly agreed upon by the plenipotentiaries of forty-five States or Powers after most careful deliberation, with the most beneficent international objects
I am not required finally to determine the effect or the binding character of the Conventions. This Court would be mainly concerned with the 6th, 7th, 10th, and 11th of them as dealing more diretly with maritime concerns; although, incidentally, others of them-e g., the 3rd, 8th, and 13th-might come under consideration in proceedings before it. Of the belligerents, Montenegro has no navy, and, so far as I know, no mercantile marine; it has a coast line, but only of about thirty miles; and Serbia is a purely inland State, having no sea-board at all. It would scarcely seem desirable that the non-ratification by these Powers should prevent the application of the Maritime Conventions; and it may be that the counsellors who have the responsibility of advising the Crown may deem it fit to advise that by proclamation or otherwise this country should declare that it will give effect to the Conventions, whether by the literal terms thereof they are strictly binding or not.
Having premised so much, I will now consider whether the owners of an enemy vessel have a right, or should be given the right, to appear to put forward a claim under the Hague Conventions, assuming, as was done during the argument, that they are operative. Under some of the Conventions some degree of protection and relief is given in respect of vessels which are not wholly immune from capture at sea or seizure in ports-e.g., under the Sixth Convention the consequences of seizure or capture are minimised and limited in certain cases, although complete immunity is not afforded. Under others of the Conventions some vessels are entirely exempted from capture. For instance, under the Tenth Convention, hospital ships are free from capture, except in certain specified circumstances; and under the Eleventh Convention certain coast fishing vessels and local trading boats, as well as those employed on religious scientific, or philanthropic missions, are similarly exempted. With regard to vessels comprised within the Tenth and Eleventh Conventions, the cases which might arise would approach nearly to those of vessels which came within the protection afforded by the Order in Council of 1854.
Dealing with the Hague Conventions as a whole, the court is faced with the problem of deciding whether a uniform rule as to the right of an enemy owner to appear ought to prevail in all cases of claimants who may be entitled to protection or relief, whether partial or otherwise. Mr. Holland argued that this is a matter not of international law, but of the practice of this court. That view is correct. I think that this court has the inherent power of regulating and prescribing its own practice unless fet ered by enactment. Lord Stowell from time to time made rules of practice, and his power to do so was not questioned. Moreover, by Order XLV. of the Priz Court Rules 1914 it is laid down that in all cases not provided for by these rules the practice of the late High Court of Admiralty of England in prize proceedings shall be followed, or such other practice as the President may direct." The rules do not provide for the case now
arising. I therefore assume that as President of this court I can give directions as to the practice in such cases as that with which the court is now dealing.
The practice should conform to sound ideas of what is fair and just. When a sea of passions rises and rages as a natural result of such a calamitous series of wars as the present, it behoves a court of justice to preserve a calm and equable attitude in all controversies which come before it for decision, not only where they concern neutrals, but also where they may affect enemy subjects. In times of peace the Admiralty Courts of this realm are appealed to by people of all nationalities who engage in commerce upon the seas, with a confidence that right will be done. So in the unhappy and dire times of war the Court of Prize as a court of justice will, it is hoped show that it holds evenly the scales between friend, neutral, and foe.
A merchant who is a citizen of an enemy country would not unnaturally expect that when the State to which he belongs, and other States with which it may unhappily be at war. have bound themselves by formal and solemn Conventions dealing with a state of war like those formulated at The Hague in 1907, he should have the benefit of the provisions of such international compacts. He might equally naturally expect that he would be heard in cases where his property or interests were affected as to the effect and results of such compacts upon his individual position. It is to be remembered also that in the international commerce of our day the ramifications of the shipping business are manifold; and others concerned, like underwriters or insurers, would feel a greater sense of fairness and security if, through an owner (though he be an enemy) the case for a seized or captured vessel was permitted to be independently placed before the
From the considerations to which I have adverted, and in order to induce and to justify a conviction of fairness, as well as to promote just and right decisions, I deem it fitting, pursuant to powers which I think the court possesses, to direct that the practice of the court shall be that whenever an alien enemy conceives that he is entitled to any protection, privi ege, or relief under any of the Hague Conventions of 1907, he shall be entitled to appear as a claimant and to argue his claim before this court. The grounds of his claim should be stated in the affidavit to lead to appearance which is required to be filed by Order III., r. 5, of the Prize Court Rules 1914.
I will now proceed to deal with the substance of the claim of the owner in the present case. He contends that his vessel cannot be condemned as prize. Was his vessel captured at sea, or seized in port? It was argued for him that she was seized in port, and therefore ought only to be detained during the war. For the Crown, on the other hand, it was contended that the vessel was captured at sea, and ought to be condemned. I have sufficiently stated the facts.
It was urged that the vessel was seized within the port of Leith, and, alternatively, that she was taken within territorial waters, and not " on the high seas," and therefore is not confiscable : (see art. 3 of the Sixth Hague Convention, to which Germany did not agree, and under which her citizens cannot benefit). In this Convention I am of opinion that the word "port" must be construed in its usual and limited popular or commercial sense as a place where ships are in the habit of coming for the purpose of loading or unloading, embarking or disembarking. It does not mean the fiscal port. The ports of Morrisonshaven, Granton, and Bo'ness,
I was informed, are within the fiscal port of Leith, but they are all separate ports in the ordinary sense. The vessel was not seized in any of such "ports" as the term is so understood, and as it seems to me to be used in the Convention. She was not in a port from which, if days of grace had been arranged, she could be said to 'depart" ("Sortir”). Alternatively, it was alleged, but not proved, that she was taken in "territorial waters," and that therefore she was not captured on the high seas. But I will assume that she was within territorial waters when the capture was made. In my view that is wholly immaterial.
The Sixth Hague Convention does not refer to "territorial waters." A vessel might be in territorial waters for scores of miles, either innocently or nefariously, and pass numerous ports, without any intention to enter any of them. It is idle to say that on this account she would be free from capture. Where the Hague Conventions intend to deal with territorial waters they are expressly mentioned as distinguished from ports; for example, in Convention XII, arts. 3 and 4, and Convention XIII., arts. 2, 3, 9, 10, &c., the words 'les eaux territoriales' are used in contradistinction to " les ports": (Cf. also the Declaration of London, art. 37, where territorial waters are described as "les eaux des belligerants”). “En mer," which is the phrase used in art. 3 of the Sixth Convention, is altogether inapt to indicate "territorial waters."
Then it was contended that the vessel could not be condemned because she was not captured on "the high seas." The words "encountered on the high seas in art. 3 are not an accurate
rendering of the authoritative French "rencontrés en mer.” Where the Conventions intend to describe "upon the high seas,' the appropriate phrase "en pleine mer" is used: (see Convention VII. recital). Another phrase, "en haute mer," is used in the Declaration of London, art. 37, to signify the same thing.
To illustrate the meaning of the word "port" in the Conventions, I would further observe that the word "ports is used in various places in conjunction with, but in contradistinction to, roadsteads, and to territorial waters: (see Convention XIII., where the words "les ports, les rades, ou les eaux territoriales" are frequently used). In my view the claimant in his affidavit was accurate when he said his vessel was taken at sea. The words of art. 3, " rencontrés en mer," are exactly applicable to this case, and I have no hesitation in finding that she was captured at sea, and not seized in port. I therefore decree that the vessel be condemned as lawful prize.
Solicitor for the Crown, Treasury Solicitor.
The expression 'enemy' in this proclamation means any person or body of persons of whatever nationality resident or carrying on business in the enemy country, but does not include persons of enemy nationality who are neither resident nor carrying on business in the enemy country. In the case of incorporated bodies enemy character attaches only to those incorporated in an enemy country.
And whereas it was also declared by the said proclamation that from and after the date of the said proclamation the persons therein referred to were prohibited from doing certain acts therein more specifically mentioned:
And whereas it was further declared by the said proclamation as follows:
"Nothing in this proclamation shall be taken to prohibit anything which shall be expressly permitted by Our licence or by the licence given on our behalf by a Secretary of State or the Board of Trade whether such licences be specia ly granted to individuals or be announced as applying to classes of persons."
And whereas in pursuance of the powers conferred by the Trading with the Enemy Proclamation No. 2 of the Board of Trade, acting on behalf of His Majesty by licence dated the 23rd day of September 1914, granted licence to the persons therein referred to to pay the fees therein more specifically mentioned:
And whereas by proclamation dated the 8th day of October 1914 the said proclamation dated the 9th day of September 1914, called the Trading with the Enemy Proclamation No. 2, was amended as therein more specifically set forth, and the said proclamation of the 8th day of October 1914 was to be read as one with the Trading with the Enemy Proclamation No. 2:
And whereas in consequence of the provisions of the said proclamation dated the 8th day of October 1914 it is desirable to restate and modify the provisions contained in the before-recited licence dated the 23rd day of September 1914.
Now, therefore, the Board of Trade acting on behalf of His Majesty and in pursuance of the power reserved in the said proclamation and all other powers thereunto them enabling, do hereby revoke the said licence dated the 23rd day of Sept. 1914, and do hereby give and grant licence to all persons resident, carrying on business or being in the United Kingdom.
To pay any fees necessary for obtaining the grant or for obtaining the renewal of patents or for obtaining the registration of designs or trade marks or the renewal of such registration in an "enemy country";
And also to pay on behalf of an enemy" any fee payable in the United Kingdom on application for or renewal of the grant of a patent or on application for the registration of designs or trade marks or the renewal of such registration. Dated this 4th day of Nov. 1914.
H. LLEWELLYN SMITH, Secretary to the said Board.
Board of Trade, Whitehall.
HEIRS-AT-LAW AND NEXT OF KIN. KELSEY (Thomas). His children and all persons claiming under inquiries made in an action in the matter of the estate of Thomas Kelsey, deceased; Woolley . Kelsey, to come in, by April 14, at chambers
of Neville and Astbury, JJ., Room 710. Hearing April 21, at 11.30. at said chambers, Room 706.
APPOINTMENTS UNDER THE JOINT STOCK
NOTICES OF APPEARANCE AT HEARING MUST REACH THE SOLICITORS BY 6 P.M.
BABBS AND BRIGGS LIMITED.-Creditors to send in, by Dec. 12, to W.
BRITISH MAT COMPANY LIMITED.-Petition for winding-up to be heard Nov. 17, at Royal Courts of Justice. J. Chapman and Co., Manchester, sols. for pet. Notices of appearance by Nov. 16.
CENTRAL SILKSTONE COLLIERIES LIMITED.-Petition for winding-up to be heard Nov. 17, at Royal Courts of Justice. Barlow, Barlow, and Lyde, 165, Fenchurch-st, E.C., sols. for pet. Notices of appearance by Nov. 16.
CIVIL SERVICE BANK LIMITED.-Petition for winding-up to be heard
F.O.J. SYNDICATE LIMITED.-Creditors to send in, by Dec. 1, to L. J. R.
GENERAL CUT FLOWER AND FOLIAGE COMPANY LIMITED.-Creditors to send
LAMA FILM PRODUCING COMPANY LIMITED.-Creditors to send in, by
T. AND E. GRAY LIMITED. Petition for winding-up to be heard Nov. 26, at Sheffield County Court, at 2. A. Shephard, Sheffield, sol. London agents. Collyer-Bristow and Co., 4, Bedford-row, W.C. Notices of appearance by Nov. 25.
UNITY ASSURANCE COMPANY LIMITED.--Petition for winding-up to be heard Nov. 24, at Royal Courts of Justice. A. Bockett, Amberley House, Norfolk-st, Strand, W.C., sol. for pet. Notices of appearance by Nov. 23.
WESTFIELD HOUSE SOCIAL CLUB LIMITED.-Creditors to send in, by
CREDITORS UNDER ESTATES IN CHANCERY.
ALLISTON (Harry), Camberwell and elsewhere. Dec. 2; W. A. Jennings,
CREDITORS UNDER 22 & 23 VICT. c. 35.
BIROTH (Anna Maria), Wimbledon. Dec. 8; Corsellis and Berney,
March 8; J. B. Brooke and Dyer. BURNHAM (Edith), Crawley. Dec. 18; C. Trevor and Co., 24, Lime-st,
BURROW (George), Panborough. Dec. 5; Burrough and Crowder, Wed
CLARK (Col. James Edward), Junior United Service Club, and St George's-rd. Jan. 7; T. H. Gill. Devonport.
COLE (William Henry), Congleton. Nov. 19; Sheldon and Plant, Congle-
EVANS (John), Pendree, New Radnor. Dec. 12; Temple and Philpin, Kington.
EVASON (Sarah Ann), Nechells. Nov. 30; P. Baker and Co., Birming
FIELD (Jane Marsh), Ashford. Nov. 20; Hallett and Co.. Ashford, Kent FIELD (John Edward) Ashford.
Nov. 20; Hallett and Co., Ashford.