THE BARMBEK.

(French Prize Court, 1916. Journal Officiel, July 24, 1916, p. 6611.)

In the name of the French people, the Prize Court has rendered the following decision between:

On the one hand, the captain, owner, charterers, shippers and consignees of the cargo of the sailing vessel Barmbek, captured at sea on August 18, 1914, by the auxiliary cruiser Flandre;

And, on the other hand, the Minister of the Navy, acting on account of the captors and the fund for disabled sailors.

Considering the decision of the Prize Court under date of December 8, 1914, of which paragraph 4 reads as follows: "Judgment is suspended with regard to the return to the owners of the cargo of the sum deposited by them as representing the proportional part of the freight acquired by the vessel. Within the delay of two months beginning from the notification of the present decision the interested parties shall present to the Prize Court, by one of the modes indicated in articles 7 and 9 of the Decree of May 9, 1859, all documents in support of their claims. The Minister of the Navy shall furnish his statements within the month following the transmission to him of the aforementioned documents; at the expiration of this latter delay, final judgment shall be rendered;" * *

*

Having heard M. Paul Gauthier, member of the Court, in his report, and M. Chardenet, Commissioner of the Government, in his statements in support of the aforementioned motions:

THE COURT, after having duly deliberated thereon,

Whereas, the German sailing vessel, Barmbek, the capture of which was declared legal and valid by the decision of the Court under date of December 8, 1914,

* * *

Whereas, it is furthermore not in order to apply articles 296 and 303 of the Commercial Code prescribing that in case of interruption of the voyage by force majeure the shipper shall pay freight for the distance covered; whereas, in fact the Commercial Code has the object in the above-mentioned articles to regulate the commercial relations between shipowners on the one hand and shippers and freighters on the other hand;

Whereas, the provisions that it lays down concerning the execution or the consequences of the non-execution between parties of a contract of a private nature can not be extended to cover the consequences

of the seizure of the ship. However, the question need not now be raised as to whether the said firm has acquired a right in rem to the steamer on account of its expenditures or on account of any part thereof. For this lien would automatically become null in case of capture of the vessel. Capture under prize law is an original mode of acquisition, an occupatio iure belli which gives the occupant unencumbered ownership of the seized property, in accordance with generally recognized principles of international law." The Fenix (1914) Entscheidungen des Überprisengerichts in Berlin, 1, 8, (1918).

of an act of war, such as the capture of a ship, in the relations of the belligerent state exercising its right of prize, and of the private shipowners of a captured vessel, or the shippers of its cargo.

Whereas, the capture of a vessel is an act of war, the legitimacy of which is recognized by the law of nations and the consequences of which must be judged according to the general principles of this law; and whereas, with regard to the acquisition of freight in proportion to the distance covered, the maritime powers have different systems of legislation; whereas, under these conditions, each national jurisdiction can refer only to the principles constantly admitted in the country to which it belongs;

Whereas, the British Prize Court has stated (case of The Roland, March 22, and 29, 1915) that "every other solution would necessitate * * * à close investigation of all the terms, conditions, and circumstances involved in the contractual obligations of the parties, and of their rights and liabilities under foreign municipal law, which this Court has always refused to undertake";

Whereas, likewise, it is not in order for the French Prize Court to apply the British laws and usages;

Whereas, this Court must admit freight for distance covered, as has been repeatedly sanctioned by French jurisprudence in matters of prize (see especially the decision of the Prize Court of November 25, 1870, case of The Julius; decree of November 2, 1871, case of The Vorsetzen; decree of December 13, 1871, case of The Alma);

Whereas, consequently, the interested parties are not justified in claiming reimbursement for the sums which they have deposited as representing the freight proportional to the distance covered by the goods which they have laden on the Barmbek;

Whereas, the claims for indemnity, presented by the interested parties, are based on conditions under which the cargo had been stowed and should have been delivered according to the charter-party; whereas, they refer, therefore, to the execution of the contract which was made between the shippers and the shipowner and which, as has been stated above, could not bind the French State;

Whereas, consequently, these claims can not be sustained. *

* * 25

25 In The Prins der Nederlanden, L. R., [1921] 1 App. Cas. 754, 756, Lord Sumner, speaking for the Privy Council, said:

"The allowance of freight for the carriage of contraband is undoubtedly very rare. Two reported cases only have been found in which it has been ordered: The Brita Cæcilia, Hay & Marriott, 234 (1779), and The Neptunus, 3 C. Rob. 108 (1800).”

CHAPTER XIX

TERMINATION OF WAR

THE MENTOR.

(High Court of Admiralty, 1799. 1 C. Rob. 179.)

Sir W. ScoTT. * * * 1 The circumstances of the case, as far as it is necessary to state them, are these: The ship, being American property, was on a voyage from the Havana to Philadelphia [in 1783]; off the Delaware she was pursued by his Majesty's ships, the Centurion and the Vulture, then cruising off that river, under the command of the admiral on that station, Admiral Digby. All parties were in complete ignorance of the cessation of hostilities; not only the persons on board the King's ships, but the Americans, as well those on the shore, as those on board the vessel. In the pursuit, shots were fired on both sides, and, it is alleged on the part of the British, that the ship was set on fire by her own crew, who took to the shore.

Now, I incline to assent to Dr. Lawrence's position, that if an act of mischief was done by the King's officers, though through ignorance, in a place where no act of hostility ought to have been exercised, it does not necessarily follow that mere ignorance of that fact would protect the officers from civil responsibility. If by articles, a place or district was put under the King's peace, and an act of hostility was afterwards committed therein, the injured party might have a right to resort to a court of prize to show that he had been injured by this breach of the peace, and was entitled to compensation; and if the officer acted through ignorance, his own government must protect him for it is the duty of governments, if they put a certain district within the King's peace, to take care that due notice shall be given to those persons by whose conduct that peace is to be maintained; and if no such notice has been given, nor due diligence used to give it, and a breach of the peace is committed through the ignorance of those persons, they are to be borne harmless, at the expense of that government whose duty it was to have given that notice.

I am, therefore, inclined to think that the determination of the judge in the former case did not turn upon the mere circumstance of ignorance on the part of the King's ships, but that looking at all the circumstances under which the event took place, and considering their just and legal effect, he was of opinion upon the whole result, that the protest on the part of the captors was well sustained. If that

1 The statement of facts and parts of the opinion are omitted.

opinion of the judge was erroneous, an appeal ought to have been prosecuted. No appeal was prosecuted, though such a purpose was formerly declared, and a protocol entered, but no farther proceedings were pursued thereon.

2 *

THE SCHOONE SOPHIE.

(High Court of Admiralty, 1805. 6 C. Rob. 138.)

This was a question, as to the ship, reserved at the former hearing, un a claim given by the British proprietor, who stated her to have belonged to him, and to have been captured by the French, and carried into a port in Norway, and condemned by the French Consular Court in that country, 1799. It now appeared that other proceedings had been afterwards had, on the former evidence, in the regular Court of Prize in Paris, where a sentence of condemnation had been pronounced, professing to affirm the sentence of the Consular Court.

Sir W. SCOTT. I am of opinion that the title of the former owner is completely barred by the intervention of peace, which has the effect.

2 The Austrian vessel Thétis was captured March 8, 1801, twenty-nine days after the signing of the treaty of Lunéville, but eight days before the date of the ratification of the treaty. The vessel was restored. La Thétis, Conseil des Prises, 1 Pistoye et Duverdy, 148 (1802).

Preliminaries of peace between France and England were signed at London October 1, 1801, and ratifications exchanged October 10. It was provided that as soon as the ratifications were exchanged sincere amity would be re-established and that every conquest that might take place after such exchange would be regarded as void. It was further provided, to avoid disputes respecting prizes taken after the signature of the preliminary articles, that prizes taken after the lapse of certain periods after the exchange of ratifications should be restored. These periods varied from 12 days for the Channel to five months for East Indian waters. Two British vessels were seized by the French before the expiration of the treaty periods and sought to annul the capture on the ground that the captors had knowledge of the treaty. The French Prize Council decided that when a treaty of peace fixes the periods of time after which prizes will no longer be valid absolute ignorance of the peace is not indispensable to the validity of a prize taken before the expiration of the period stated; that within the period in which prizes can still be legally made the presumption of ignorance of peace is one of law and it cannot be rebutted except by complete proof that the captor has had positive knowledge of the peace; that such notice must be certain and admitting of no doubt; it cannot result from oral information nor even unauthenticated documents furnished by the enemy; it must emanate from the government of the captor although it may come through the channel of the enemy authorities by virtue of special and official instructions. On these grounds the Prize Council condemned Le Porcher but restored La Nymphe. La Bellone contre Le Porcher, La Petite-Renommée contre La Nymphe, French Prize Council, 1 Pistoye et Duverdy, 149 (1803).

8 On the effect of the sentences of the prize tribunals of France, pronounced on vessels carried into neutral ports, the Editor takes this opportunity of inserting the recent (August 7, 1807) decision of the Court of Appeal in the case of The Henric and Maria, Baar.

From the decision of the High Court of Admiralty in that case (4 C. Rob. 43), upholding such a title under the circumstances and considerations there noticed, an appeal was prosecuted, and two other questions of the same kind

of quieting all titles of possession arising from the war; and if the vessel has been transferred to the subject of another country, he also will be entitled to the same benefit from the treaty as the captor himself would have been, if he had continued in possession. It is admitted that as to the enemy it would have this effect, and that it would not be lawful to look back beyond the general amnesty to examine the title of his possession. If his property is transferred, the purchaser must also be entitled to the benefit of the same considerations, for otherwise it could not be said that the intervention of peace would have the effect of quieting the possession of the enemy; because, if the neutral purchaser was to be dispossessed, he would have a right to resort back to the belligerent seller, and demand compensation from him. I am of opinion, therefore, that the intervention of peace has put a total end to the claim of the British proprietor, and that it is no longer competent to him to look back to the enemy's title, either in his own possession, or in the hands of neutral purchasers. As to any effect of the new war, though that may change the relation of those who are parties to it, it can have no effect on neutral purchasers, who stand in the same situation as before. Those purchasers, though no parties to the treaty, are entitled to the full benefit of it, because they derive their title from those who are. *

THE NEUSTRA SEÑORA DE LOS DOLORES.

(High Court of Admiralty, 1809. Edwards, 60.)

This was the case of a Spanish ship which had been captured before Spanish hostilities, and restored with costs and damages; but no further proceedings took place at the time, in consequence of the breaking out of the war between the two countries. An application was now made to the court for a reference to the registrar and merchants, on the ground that hostilities having ceased, the Spanish claimant was entitled to the benefit of the former decree for costs and damages.

* * *

Sir WILLIAM SCOTT. I am clearly of the opinion that the objection. is not sustainable; it is true that the intervention of hostilities puts

were brought from Vice Admiralty Courts, in the cases of The Gluclicke Peter and The Jonge Jan.

On August 7, 1807, the judgment of the Court of Appeal was delivered by the Master of the Rolls (Sir William Grant), to the following effect:

"This case involves a question as to the validity of sentences of condemnation pronounced in a belligerent country on prizes carried into neutral ports. There was some difference of opinion among the members of the board, before whom the case was originally argued. But it appeared to me that the acknowledged practice of this country must have the effect of making those sentences valid, whilst that practice continued. For there could be no equity, on which we could deny the validity of that title to neutrals purchasing of the enemy, at the same time that they were invited to take them from ourselves."