berg in 1887, it is provided that 'le navire arrêté pour cause de contrebande de guerre peut continuer sa route, si sa cargaison ne se compose pas exclusivement, ou en majeure partie, de contrebande de guerre, et que le patron soit prêt à livrer celle-ci au navire du belligérant et que le déchargement puisse avoir lieu sans obstacle selon l'avis du commandant du croiseur '1 At the Naval Conference of 1908-9 Austria-Hungary proposed that a neutral vessel carrying contraband should be given the right to proceed on her way without further molestation if the master was ready to hand the contraband over to the captor on the spot, while she required a subsequent decision of a prize court either to validate the transaction or to decree compensation if the captor acted wrongfully.2 In this form, however, the proposal did not meet with general support, and the matter was finally settled by Article 44 of the Declaration of London, which provides that a vessel not herself liable to condemnation on account of London. of the proportion of contraband on board may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. But, as is clear from the Report, this can only be done by mutual consent. There is no obligation, under this article, on either the master to deliver or the captor to accept the goods, and in ordinary cases either party can insist on the vessel being taken in for adjudication in the usual way. And by the Declaration Captor may destroy goods handed over. The captor is given unconditional permission to destroy the contraband goods thus handed over to him; but he must enter their delivery on the logbook of the vessel stopped, and the master must give him duly certified copies of all relevant papers. The case will then have to be referred to a prize court, and it is assumed that compensation would have to be paid under Article 64 if, 1 § 33 (9 Ann. (1888), 225). 2 P. P. Misc. No. 4 (1909), 97. 1 after the goods had been destroyed, it was held that there was no justification for their seizure.1 captor handed over. By virtue of Article 54, where the vessel herself is not When liable to condemnation and the circumstances are such may that to take her into port for adjudication would involve compel the goods danger to the safety of the capturing ship or to the to be success of the operations in which she is engaged at the time, the captor has the right to demand the handing over, or to proceed himself to the destruction, of any goods liable to condemnation found on board the vessel. He must enter the goods surrendered or destroyed in the logbook of the vessel stopped, and must obtain duly certified copies of all relevant papers, so that the legality of his action may subsequently be tested before a prize court. When the goods have been handed over or destroyed and the formalities duly carried out, the master must be allowed to continue his voyage. Prior to any decision respecting the validity of the prize, the captor must establish, as in the case of the destruction of the vessel, that he only acted in the face of an exceptional necessity of the nature above mentioned. If he fails to do this, he must compensate the parties interested, and no examination is to be made of the question whether the capture was valid or not. He must also, of course, pay compensation when the capture is subsequently held to be invalid, although the circumstances justified the destruction. The action authorized by this Article is a distinct innovation in the law of contraband, but it is only a logical consequence of the admission of the right to destroy neutral vessels under Article 49.2 1 Bentwich says that the articles handed over under Article 44 are properly regarded as the absolute property of the captor, and that where the handing over of the contraband is voluntarily done by the master of the neutral vessel, it will not be necessary for the captor to justify his action' (Decl. 83, 102). But he is clearly wrong; see P. P. Misc. No. 4 (1909), 52, 97; infra, App. A, p. 271; and cf. Desp. D. I. 1294–5. 2 Cf. P. P. Misc. No. 4 (1909), 99. German practice in the war of 1914-15. Procedure in early times. Article 7 of the Italian Decree of October 13, 1911, provided that if the contraband articles constituted a small part of the cargo, the naval commanders could, if they thought fit, receive such articles in deposit, making an entry to that effect in the ship's log or, failing that, issuing a declaration to that effect, and then permit the vessel freely to continue her voyage.1 In the present war of 1914-15 Germany has taken repeated advantage of the provisions of the Declaration of London which permit the destruction of neutral prizes. In September, 1914, the Karlsruhe sank the Dutch vessel Maria, bound from California with a cargo of wheat consigned to Dublin and Belfast. Subsequently the Kronprinz Wilhelm sank the Norwegian ship Semantha, also bound for the United Kingdom with a cargo of grain.2 In January, 1915, the captain of the Prinz Eitel Friedrich ordered the destruction of a cargo of 5,200 tons of wheat carried by the American sailing vessel William P. Frye ; but as this was not done fast enough to please him, he sank the ship, in spite of the treaty of 1828.3 3. PRIZE COURTS In very early times the admiral of a fleet of belligerent cruisers determined summarily by an inspection of the ship's papers, and an examination of the persons on board the captured ship, whether the vessel with her cargo should be confiscated as prize, or be allowed to pursue her voyage. There is little or no evidence that the admiralty court was, before the sixteenth century, of any considerable use as a prize tribunal. Previously to 1585 the only remedy for one whose ship or goods had been wrongly seized was to petition the king or council for redress; whereupon the admiral, or his judge, 1 Barc. T. I. War, 124. 2 The Times, February 22, 1915. 3 Id. March 12 and August 6, 1915; supra, pp. 101-2. ment of or special commissioners, were directed to issue process and determine the matter. By Order in Council in 1585 it was decreed that thenceforth all prizes should be brought in for adjudication.1 Eventually it became the Establishrecognized customary rule that in time of war the prize admiralty of maritime belligerents should be obliged to courts. set up tribunals for the purpose of deciding upon the validity of the captures made by their cruisers.2 These tribunals are called Prize Courts. Nature of the law they ad 'It is the duty of the judge', said Lord Stowell in the Maria, referring to the character of the jurisdiction of his court, 'to administer that justice which the law minister. of nations holds out, without distinction, to independent states, some happening to be neutral, and some to be belligerent. The seat of judicial authority is indeed locally here, in the belligerent country; but the law itself has no locality. The person who sits here is to determine this question exactly as he would determine the same question if sitting at Stockholm; asserting no pretension on the part of Great Britain that he would not allow to Sweden.' Not many years later, however, Lord Stowell had to admit that the King in Council possessed legislative powers over the prize court and might issue orders and instructions which it was bound to obey and enforce. This situation he could only reconcile with his former position by saying that the court would assume that the Orders of the King in Council were in accord with established international law.4 1 Twiss, Cont. Voy. 6; Marsden in 67 Naut. Mag. (1898), 388; and in 24 E. H. R. (1909), 675, 681. 2 Opp. I. L. ii. 239. 3 (1799), 1 C. Rob. 340; 1 E. P. C. 152; and cf. the Flad Oyen (1799), 1 C. Rob. 135; 1 E. P. C. 78; and Reddie, i. 21-2; and the Report of the British Commissioners of January 18, 1753 (Martens, C. C. ii. 50, 67-8; Baty, P. L. 119, 131). 4 The Fox and others (1811), Edw. 311; 2 E. P. C. 61. Strictly national in its ulti mate source. In principle a prize court is not an international but a national court and the law it administers is municipal. The sources of that law may be the customs which prevail among civilized nations, but the judge refers to these, not because such nations have commanded him so to do, but because he has been authorized so to do by the state of which he is the judge. If his state should pass a statute contrary to the general customs of civilized nations, he would be bound to follow it.1 All modern authorities emphasize this fact, and it was for this reason that it was sought at the Second Hague Conference in 1907 to come to an agreement for the establishment of Proposed an International Prize Court to which neutrals might national appeal from the national prize courts of the belligerents.2 But no power whose interests are largely bound with commerce overseas can consent to the erection of such a court until the main principles and fundamental rules by which its decisions will be guided have been settled beyond dispute.3 Inter Prize up Evidence Prior to the American civil war it was considered to in prize cases. be an established rule of prize procedure that in the decision of a case the evidence, whether to acquit or 1 Maine, I. L. 96; Westlake, I. L. ii. 317–18; Opp. I. L. ii. 240; Moore, Dig. vii. 648-51; Gray, Nature and Sources of Law, 122-3; Westlake in 22 L. Q. R. 24; Col. Paps. 516-17; the Zamora (1915), 31 T. L. R. 513. Under Elizabeth, and long afterwards, the judge of the English Admiralty Court decided in accordance with the directions received from the Privy Council, to which he frequently referred (Monson's Tracts, i. 274). In order to be binding on neutral states, the decision of the prize court of the captor must be in accordance with the recognized principles of international law (cf. P. P. Russia, No. 1 (1905), 9-10; and Borchard in 9 A. J. (1915), 139, 141). 2 Westlake, Col. Paps. 550-1; Hol. Letts. 171, 183–4. 3 Cf. Lawr. Prin. 50; Westlake, Col. Paps. 551-2. The scheme adopted by the Conference of 1907 laid down that the international court should apply in the first place any rule 'provided for by a convention in force between the capturing belligerent and the Power which, or a subject of which, is a party to the suit, and, in default of such, the rules of international law. If no generally recognized rule exists, the court decides according to the general principles of justice and equity' (12 H. C. 1907, Art. 7; cf. Hol. Letts. 172, 174, 177–9). |