Since the neutral had "acted without notice of former decisions upon the subject" the court went "no further than to pronounce for a forfeiture of freight and expenses, with a restitution of the

vessel."

(Extracts and abridgment from C. Robinson: Admiralty Reports, vol. II, pp. 186-206. A condensed statement of the facts and of a portion of the omitted parts of the opinion is given.)

THE MONTARA

Yokosuka Prize Court, November 4, 1905

Decision on Appeal to the Higher Prize Court, February 13, 1906

BEFORE the Russo-Japanese War, trade in the Komandorski Islands and along the neighboring coast was closed to foreign ships. During the progress of the war the Russian Government permitted two Russian companies to employ foreign ships in this trade. Acting under this permission, one of these companies, the Kamschatka Commercial and Industrial Company, chartered the Montara, a United States ship, for the purpose of engaging in this trade, and also of carrying supplies to the neighborhood, under the company's contracts with the Russian Government.

The charter-party was dated March 22, 1905, and was for a period of about five months, running from May 1. The Montara left San Francisco on July 9, and called at various Kamschatkan ports, discharging part of her cargo, and taking in furs and other articles. On August 16, 1905, she was captured while discharging the remainder of her cargo at Nikolski Roads, Behring Island. The cargo on board at the time was the property of the charterers. The treaty of peace was signed on September 5, 1905.

Under Article 6 (2) of the Japanese Regulations relating to Capture at Sea, "ships which sail under the enemy's flag, or with a special license from the enemy," were to be considered as enemy ships.

Claims were entered by the shipowners for the release of the ship, and by the English underwriters of the cargo for the release of the cargo.

The case came before the Yokosuka Prize Court on Novem

ber 4, 1905, when judgment was given condemning the ship and cargo.

[The "facts and reasons" including the arguments are omitted.] The Court: "When a belligerent gives to certain ships a license to trade in a district closed to foreign vessels in time of peace, the other belligerent may condemn vessels, even of neutral ownership, sailing under such license, as having acquired enemy character, and also the goods on board as enemy property. This is recognized by the practice and theory of international law. The Komandorski and other islands, where the Montara was trading, were formerly closed to foreign vessels. But on the outbreak of the Russo-Japanese War the Russian Government gave a license to the Kamschatka Commercial and Industrial Company and the Eastern Siberia Company, permitting vessels chartered by the two companies to sail in those districts, because Russian vessels alone were not sufficient to carry provisions there. The Montara sailed to the Komadorski Islands and other places by virtue of this license. This is proved from the evidence given by Grenvenitski. She was actually captured at anchor in Nicolski Roads, in the Komandorski Islands. She must, therefore, be considered as an enemy ship, and the goods on board as enemy goods, being the property of the Kamschatka Commercial and Industrial Company, the charterers of the ship.

"The claimants request the release of the ship on the ground that the owners and the master had no intention of infringing neutrality. But whether or not the ship sailed under a Russian license is a question of fact, to be decided by the acts of the ship herself, and the intention of the owner or the master has nothing to do with it."

[The court then discussed the evidence which it considered to prove that the vessel "sailed in the prohibited districts by virtue of a license, and therefore has enemy character." The court continued:]

"The claimants argued that the ship should not be condemned, because her voyage was made in the interests of humanity. But it was in performance of the ordinary business of the Kamschatka Commercial and Industrial Company of carrying supplies to those islands, and was a commercial transaction. No charity or philanthropy can be recognized in the undertaking.

"The claimants argued that captures at sea should not be made after the restoration of peace, and that the ship and cargo are not subject to the jurisdiction of the Prize Court, and they should consequently be released. But the precedents cited were cases in which the mutual relations of the belligerents had been determined by special conventions, or in which particular enemy ships were released by special ordinance, and they do not apply to this case. The belligerent right of capture ceases with the restoration of peace, but the validity of captures already made is unaffected. A distinction must be made between the act of capture and the act of judging whether or not a capture was valid.1 Therefore, a Prize Court, unless bound by some special convention or ordinance, should continue to deal with cases of both neutral and enemy ships, and give decisions of condemnation or release, even after the restoration of peace. The case of the Yik-sang, in the Chino-Japanese war of 1894-95, as well as the practice and theory of international law, shows the correctness of this view.

"For the above reasons the ship and cargo are liable to condemnation, and as to the other contentions of the claimants the court sees no necessity for giving any explanation.

"Judgment is therefore given as above."

Both the claimants appealed to the Higher Prize Court.

The Higher Prize Court rendered its judgment on February 13, 1906:

[Several of the interesting points raised in the argument relative to the points discussed in the decision of the lower court were not noticed in the decision of the higher court, which confined itself to a discussion in regard to the nature of the trade in which the Montara was engaged. After a careful study of the evidence the opinion ends as follows:]

"The court holds, however, that a license need not necessarily be given to each particular vessel. If permission to engage in a trade which was formerly closed is granted to vessels belonging to a certain specified company, such a permission is a license to the vessels who engage in that trade. As stated elsewhere, the

1 See the case of the Doelwyk, supra, p. 406.

trade to the Komandorski Islands and the coast was closed to foreign ships, and since this prohibition was removed only in the case of vessels chartered by the Kamschatka Commercial and Industrial Company and one other company, it cannot be doubted that the Montara sailed to that coast under a license granted by the Russian Government. Since neutral ships which sail under a special license from the enemy may, under international law, be condemned as having acquired enemy character, the release of the ship in this case cannot be granted merely because there are no provisions either in the American, German, or Russian Prize Regulations for the condemnation of vessels who had engaged in trading which was prohibited in time of peace.

"For the above reasons the court finds that the Prize Court was justified in condemning the Montara as having acquired enemy character, together with her cargo, as being enemy property, and it is not necessary to deal with the other points raised by the appellants.

"This appeal is therefore dismissed.”

(Abridged statement of facts and opinion from Hurst and Bray: Russian and Japanese Prize Cases, vol. II, Japanese Cases, pp. 403-15.)

§ 34. UNNEUTRAL SERVICE

THE FRIENDSHIP

High Court of Admiralty, August 20, 1807

THIS was a case of an American ship bound on a voyage from Baltimore and Annapolis to Bordeaux, with thirty tons of fustic, and 4414 hogsheads staves, and 90 passengers, being French mariners, shipped under the direction of the French Minister in America. The ship was claimed for a Mr. Guestier, a Frenchman by birth, but a subject of the United States. . . [Arguments omitted.]

Sir William Scott [Lord Stowell]: "This is an American ship with a few goods of small bulk and little value, about 30 tons of fustic,

and some staves, which are frequently taken as dunnage, or ballast, but very seldom as a principal cargo. But there is a cargo on board of a different kind, ninety passengers, one American, five French merchants, and the rest French military officers and mariners.

[After considering the various circumstances of the nature of the cargo and the answers made to the questions of the interrogatory, Sir William Scott concludes:]

"Under these circumstances, I am of opinion that this vessel is to be considered as a French transport. It would be a very different case if a vessel appeared to be carrying only a few individual invalided soldiers, or discharged sailors, taken on board by chance, and at their own charge. Looking at the description given of the men on board, I am satisfied that they are still as effective members of the French marine as any can be. Shall it be said then that this is an innoxious trade, or that it is an innocent occupation of the vessel? What are arms and ammunition in comparison with men, who may be going to be conveyed, perhaps, to renew their activity on our own shores? They are persons in a military capacity, who could not have made their escape in a vessel of their own country. Can it be allowed that neutral vessels shall be at liberty to step in and make themselves a vehicle for the liberation of such persons, whom the chance of war has made, in some measure, prisoners in a distant port of their own colonies in the West Indies? It is asked, will you lay down a principle that may be carried to the length of preventing a military officer, in the service of the enemy, from finding his way home in a neutral vessel from America to Europe? If he was going merely as an ordinary passenger, as other passengers do, and at his own expense, the question would present itself in a very different form. Neither this court, nor any other British tribunal has ever laid down the principle to that extent. This is a case differently composed. It is the case of a vessel letting herself out in a distinct manner, under a contract with the enemy's government, to convey a number of persons, described as being in the service of the enemy, with their military character traveling with them, and to restore them to their own country in that character. I do with perfect satisfaction of mind, pronounce this to be a case of a ship engaged in a course of trade,