International Law. A Treatise Volume Ii Part 64

But the matter of recapture of neutral prizes is not settled, no rule of International Law and no uniform practice of the several States being formulated regarding it. Very few treaties touch upon it, and the munic.i.p.al regulations of the different States regarding prizes seldom mention it. According to British practice,[918] the recaptor of a neutral prize is ent.i.tled to salvage, in case the recaptured vessel would have been liable to condemnation if brought into an enemy port.

[Footnote 918: The _War Onskan_ (1799), 2 C. Rob. 299. See Holland, _Prize Law_, -- 270.]

[Sidenote: Release after Capture.]

-- 433. Besides the case in which captured vessels must be abandoned, because they cannot for some reason or another be brought into a port, there are cases in which they are released without a trial. The rule is that a captured neutral vessel is to be tried by a Prize Court in case the captor a.s.serts her to be suspicious or guilty. But it may happen that all suspicion is dispelled even before the trial, and then the vessel is to be released at once. For this reason article 246 of Holland's _Prize Law_ lays down the rule: "If, after the detention of the vessel, there should come to the knowledge of the commander any further acts tending to show that the vessel has been improperly detained, he should immediately release her...." Even after she has been brought into the port of a Prize Court, release can take place without a trial. Thus the German vessels _Bundesrath_ and _Herzog_, which were captured in 1900 during the South African War and taken to Durban, were, after search had dispelled all suspicion, released without trial.

That the released vessel may claim damages is a matter of course, and article 64 of the Declaration of London precisely enacts it. But it should be mentioned that, since Convention XII. stipulates only appeals against judgments of National Prize Courts, the International Prize Court would not have jurisdiction in a case of the release of a vessel without trial, and that the question of compensation could, therefore, be settled through the diplomatic channel only.

III

TRIAL OF CAPTURED NEUTRAL VESSELS

Lawrence, ---- 188-190--Maine, p. 96--Manning, pp.

472-483--Phillimore, III. ---- 433-508--Twiss, II. ---- 169-170--Halleck, II. pp. 393-429--Taylor, ---- 563-567--Wharton, III. ---- 328-330--Moore, VII. ---- 1222-1248--Wheaton, ---- 389-397--Bluntschli, ---- 841-862--Heffter, ---- 172-173--Geffcken in Holtzendorff, IV. pp. 781-788--Ullmann, -- 196--Bonfils, Nos.

1676-1691--Despagnet, Nos. 677-682 _bis_--Rivier, II. pp.

353-356--Nys, III. pp. 710-718--Calvo, V. ---- 3035-3087--Fiore, III. Nos. 1681-1691, and Code, Nos. 1890-1929--Martens, II. ---- 125-126--Kleen, II. ---- 219-234--Gessner, pp. 357-427--Boeck, Nos.

740-800--Dupuis, Nos. 282-301, and _Guerre_, Nos.

218-223--Nippold, II. -- 35--Perels, ---- 56-57--Testa, pp.

244-247--Hautefeuille, III. pp. 299-365--Atherley-Jones, _Commerce in War_ (1906), pp. 361-594--Hirschmann, _Das internationale Prisenrecht_ (1912), -- 38--See also the monographs quoted above at the commencement of -- 391, and Bulmerincq's articles on _Le droit des prises maritimes_ in _R.I._ X.-XIII. (1878-1881).

[Sidenote: Trial of Captured Vessels a Munic.i.p.al Matter.]

-- 434. Although belligerents have, under certain circ.u.mstances, according to International Law, the right to capture neutral vessels, and although they have the duty to bring these vessels for trial before a Prize Court, such trials are in no way an international matter. Just as Prize Courts--apart from the proposed International Prize Court--are munic.i.p.al[919] inst.i.tutions, so trials of captured neutral vessels by these Prize Courts are munic.i.p.al matters. The neutral home States of the vessels are not represented and, directly at any rate, not concerned in the trial. Nor is, as commonly maintained, the law administered by Prize Courts International Law. These Courts apply the law of their country.

The best proof of this is the fact that the practice of the Prize Courts of the several countries has. .h.i.therto differed in many points. Thus, for instance, the question what is and what is not contraband, and, further, the question when an attempt to break blockade begins and when it ends, have hitherto been differently answered by the practice of different States.

[Footnote 919: See above, -- 192. The matter is regulated so far as Great Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch.

25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The _Reglement international des prises maritimes_, adopted in 1887 at Heidelberg by the Inst.i.tute of International Law, provides in ---- 63-118 detailed rules concerning the organisation of Prize Courts and the procedure before them; see _Annuaire_, IX. (1888), p. 208.]

Many writers, however, maintain that Prize Courts are International Courts, and that the law administered by these courts is International Law. Lord Stowell again and again[920] emphatically a.s.serted it, and the vast majority of English and American writers[921] follow him. But it is to be expected that the recognition of the difference between Munic.i.p.al and International Law, as expounded above, Vol. I., ---- 20-25, and of the fact that States only, and neither their Courts nor officials nor citizens, are subjects of International Law, will lead to the general recognition of the fact that the law applied by National Prize Courts is not and cannot be International Law.

[Footnote 920: The _Maria_ (1799), 1 C. Rob. 340; the _Recovery_ (1807), 6 C. Rob. 341; the _Fox and others_ (1811), Edwards, 311.]

[Footnote 921: See, for instance, Halleck, II. p. 411; Maine, p. 96; Manning, p. 472; Phillimore, III. ---- 433-436; Hall, -- 277. On the other hand, Holland, _Studies_, p. 199; Westlake, II. p. 289; and Scott, _Conferences_, p. 467, distinctly agree with me.]

And matters will remain as they are even after the establishment of the International Prize Court and ratification of the Declaration of London.

The law of this Declaration is certainly International Law, but it will be binding only upon the States, and they, on their part, must embody it in their Munic.i.p.al Law so that their Prize Courts are obliged to administer such a law in prize cases as is in conformity with the Declaration of London. It will be the task of the International Prize Court[922] to control the National Prize Courts in that direction. A State which is a party to the Declaration and would nevertheless order its Prize Courts to apply a law which is in opposition to the Declaration of London, would commit an international delinquency, but its Prize Courts would be obliged to apply such law.

[Footnote 922: Trial before this Court is, of course, an international matter.]

[Sidenote: Result of Trial.]

-- 435. The trial of a captured neutral ship can have one or more of five results:--vessel and cargo can be condemned,[923] or the vessel alone, or the cargo alone; and the vessel and cargo can be released either with or without costs and damages. Costs and damages must be allowed when capture was not justified, and, after the ratification of the Declaration of London and the establishment of the International Prize Court, an appeal may, according to article 64 of the Declaration of London and article 4 of Convention XII., be brought before the International Prize Court if costs and damages are refused or inadequately allowed by a Prize Court. But it must be emphasised that capture might be justified, as, for instance, in the case of spoliation of papers, although the Prize Court did not condemn the vessel, and, further, that costs and damages are never allowed in case a part only of the cargo is condemned, although the vessel herself and the greater part of the cargo are released. That, in case the captor is unable to pay the costs and damages allowed to a released neutral vessel, his Government has to indemnify the vessel, there ought to be no doubt, for a State bears "vicarious" responsibility[924] for internationally injurious acts of its naval forces.

[Footnote 923: It would seem to be obvious that condemnation of the vessel involves the loss of the vessel at the date of capture; see _Andersen_ v. _Marten_, L.R. (1907) 2 K.B. 248.]

[Footnote 924: See above, vol. I. -- 163.]

[Sidenote: Trial after Conclusion of Peace.]

-- 436. It is a moot question whether neutral vessels captured before conclusion of peace may be tried after the conclusion of peace.[925] I think that the answer must be in the affirmative, even if a special clause is contained in the Treaty of Peace, which stipulates that captured but not yet condemned vessels of the belligerents shall be released. A trial of neutral prizes is in any case necessary for the purpose of deciding the question whether capture was justified or not, and whether, should condemnation not be justified, the neutral vessels may claim costs and indemnities. Thus, after the conclusion of the Abyssinian War, in December 1896, the Italian Prize Commission, in the case of the _Doelwijk_,[926] claimed the right to try the vessel in spite of the fact that peace had been concluded between the time of capture and trial, declared the capture of the vessel and cargo to have been justified, but p.r.o.nounced that, peace having been concluded, confiscation of vessel and cargo would no longer be lawful.

[Footnote 925: See Perels, -- 57, p. 309, in contradistinction to Bluntschli, -- 862. But there is, of course, no doubt that a belligerent can exercise an act of grace and release such prizes. Thus, in November 1905, at the end of the Russo-j.a.panese War, the Mikado proclaimed the unconditional release of all neutral prizes captured after the signing but before the ratification of the Peace of Portsmouth. Thereby, three German vessels, two English, and one Norwegian escaped confiscation, which in strict law--see above, p. 534, note 4--would have been justified.]

[Footnote 926: See Martens, _N.R.G._ 2nd Ser. XXVIII. pp. 66-90.]

Different from the question whether neutral prizes may be tried after the conclusion of peace is the other question whether they may be condemned to be confiscated. In the above-mentioned case of the _Doelwijk_ the question was answered in the negative, but I believe it ought to have been answered in the affirmative. Confiscation of vessel and cargo having the character of a punishment, it would seem that the punishment may be inflicted after the conclusion of peace provided the criminal act concerned was consummated before peace was concluded. But nothing, of course, stands in the way of a belligerent taking a more lenient view and ordering his Prize Courts not to p.r.o.nounce confiscation of neutral vessels after the conclusion of peace.

The Declaration of London does not settle either the former or the latter question, and it would therefore be the task of the International Prize Court to evolve a uniform practice in the cases concerned.

[Sidenote: Protests and Claims of Neutrals after Trial.]

-- 437. Hitherto, if a trial led to condemnation, and if the latter was confirmed by the Court of Appeal, the matter as between the captor and the owner of the captured vessel and cargo was finally settled. But the right of protection,[927] which a State exercises over its subjects and their property abroad, may nevertheless have been the cause of diplomatic protests and claims on the part of the neutral home State of a condemned vessel or cargo, in case the verdict of the Prize Courts was considered to be not in accordance with International Law or formally or materially unjust. It is through such protests and claims that the matter, which was. .h.i.therto a mere munic.i.p.al one, became of _international_ importance. And history records many instances of cases of interposition of neutral States after trials of vessels which had sailed under their flags. Thus, for instance, in the famous case of the Silesian Loan,[928] it was the fact that Frederick II. of Prussia considered the procedure of British Prize Courts regarding a number of Prussian merchantmen captured during war between Great Britain and France in 1747 and 1748 as unjust, which made him in 1752 resort to reprisal and cease the payment of the interest of the Silesian Loan. The matter was settled[929] in 1756, through the payment of 20,000 as indemnity by Great Britain. Thus, further, after the American Civil War, articles 12-17 of the Treaty of Washington[930] provided the appointment of three Commissioners for the purpose, amongst others, of deciding all claims against verdicts of the American Prize Courts. And when in 1879, during war between Peru and Chili, the German vessel _Luxor_ was condemned by the Peruvian Courts, Germany interposed and the vessel was released.[931]

[Footnote 927: See above, vol. I. -- 319.]

[Footnote 928: See above, -- 37.]

[Footnote 929: See Martens, _Causes Celebres_, II. p. 167.]

[Footnote 930: See Martens, _N.R.G._ XX. p. 698.]

[Footnote 931: See above, -- 404.]

The ratification of the Declaration of London and the establishment of the International Prize Court would finally do away with such grave international disputes.

CHAPTER VII

THE INTERNATIONAL PRIZE COURT

I

PROPOSALS FOR INTERNATIONAL PRIZE COURTS

Geffcken in Holtzendorff, IV. pp. 785-788--Boeck, Nos.

743-764--Dupuis, No. 289, and _Guerre_, Nos. 224-231--Higgins, pp.

432-435--Lemonon, pp. 280-293--Nippold, I. -- 15--Trendelenburg, _Lucken im Volkerrecht_ (1870), pp. 49-53--Gessner, _Kriegfuhrende und neutrale Machte_ (1877), pp. 52-58--Bulmerincq and Gessner in _R.I._ XI. (1879), pp. 173-191, and XIII. (1881), pp. 260-267.

[Sidenote: Early Projects.]

-- 438. Numerous inconveniences must naturally result from a condition of International Law which has. .h.i.therto prevailed and according to which the Courts of the belligerent whose forces had captured neutral vessels exercised jurisdiction without any control by neutrals. Although, as shown above in -- 437, neutrals frequently interfered after a trial and succeeded in obtaining recognition for their claims in face of the verdicts of Prize Courts, great dissatisfaction has long been felt at the condition of matters. .h.i.therto obtaining, and proposals have been made for so-called mixed Prize Courts.

The first proposal of this kind was made in 1759 by Hubner,[932] who suggested a Prize Court composed of judges nominated by the belligerent and of consuls or councillors nominated by the home State of the captured neutral merchantmen.