.

the exercise of a right of self-protection well recognised in international law and, as it was apprehended that the ship would endanger the security of the port, it was properly taken into custody; therefore assuming that the completion of the sale of the ship has been prevented by its being taken into custody as alleged, the fault only lies with the appellant. In conclusion, as the sale of the ship had not been completed, it was lawfully captured, and the appellant's contention is untenable.

As to the grounds of appeal maintained by the appellant Tung Hansen, except those which are a mere repetition of those maintained by the said Paul Hense, the most important point is that since the ship had been sold to him (Tung Hansen) it ought not to have been condemned. But, as pointed out in the earlier part of this judgment, the ownership of the ship has not been completely transferred to him; therefore this contention of his is groundless. The rest does not merit an answer at all.

Wherefore the finding of this court is that there is no ground for appeal and the appeal is hereby dismissed. In accordance with article 30 of the Prize Court Rules, this court pronounces judgment as above after review of the records.R

8 In The Germania, [1916] P. D. 5 (1915), Sir Samuel Evans held that a yacht is not a navire de commerce, and therefore is not entitled to the protection of days of grace according to article 1 of the Sixth Hague Convention of 1907. To the same effect is the decision of the German Prize Court in the Primavera, Entscheidungen des Oberprisengerichts in Berlin, 1918, 194 (1916). Enemy tugs and lighters employed in ports of the other belligerents are not exempt from capture. See The Atlas, 2 British and Colonial Prize Cases, 470 (1916); Procurator in Egypt v. Deutsches Kohlen Depot Gesellschaft [1919] A. C. 291 (1918).

To be exempt from confiscation the enemy merchantmen must be actually within port, as distinguished from the roadstead and from the port for customs and fiscal purposes. The Möwe, [1915] P. D. 1 (1914); The Belgia, [1916] 2 A. C. 183 (1916); 1 British and Colonial Prize Cases, 303 (1915); 2 Id., 32, (1916); The Erymonthos, 1 British and Colonial Prize Cases, 339 (1914). In accord with these views is the decision of the German Prize Court in The Fenix, Entscheidungen des Oberprisengerichts in Berlin, 1918, 1 (1914).

In The Achaia, [1916] 2 A. C. 198 (1916), Lord Parker of Waddington held. on behalf of the Privy Council, that the Achaia, a German vessel, was given sufficient time to leave the port of Alexandria, Egypt, saying:

"She was offered a pass to a neutral port, and there is no reason to suppose that such pass was insufficient, or would not have been recognized as valid by any belligerent power. The fact that the vessel did not leave Alexandria under this pass was not due to force majeure, but to her own deliberate election not to do so. She cannot, therefore, rely on the provisions of article 2 of the Convention. Even if Alexandria could be regarded as a neutral port, the fact would be immaterial. The seizure of an enemy vessel in a neutral port, though a breach of neutrality, would not in a court of prize afford any ground for its release."

But failure to leave within days of grace, caused by force majeure, does not entail confiscation. The Turul, [1919] A. C. 515 (1919).

In The Marie Leonhardt, [1921] P. D. 1 (1920), Sir Henry Duke, President of the Probate, Divorce and Admiralty Division, took occasion to consider the legal status of belligerent vessels found in a British port upon the outbreak of war with Germany, and concluded as follows:

"Giving all the weight I can give to the concessions made by belligerent

CHAPTER IV

ALIEN ENEMIES BEFORE COURTS OF JUSTICE

WELLS v. WILLIAMS.1

(Court of King's Bench, 1697. 1 L. Raym. 282.)

Debt upon bond. The defendant pleads, that the plaintiff was an alien enemy born in France of French parents who were alien enemies, and that he came into England sine salvo conductu, and concludes in bar. The plaintiff replies, that at the time of making of the bond he was, and yet is, here per licentiam et sub protectione domini regis. The defendant demurs. And Wright, Serjeant, objected, that it ap

powers from 1854 to 1914, and the concurrence of numerous states in a desire to secure as a right under international law days of grace for enemy ships found in the ports of a belligerent at the outbreak of war, I find myself brought definitely to the conclusion that the law on this subject remained in 1914, and is now, as it was in the time of Lord Mansfield. Ships of the enemy in our ports at the declaration of war, or the outbreak of hostilities. are 'detained in our ports to be confiscated if no reciprocal agreement is made.'" Lindo v. Rodney, 2 Doug. 613, 615, note (1781).

In the case of The Blonde and Other Vessels (Privy Council, 1922; 38 Times L. R., 328), it was held that as Great Britain had continued throughout the war to treat the Sixth Hague Convention of 1907 as binding, the German owners would be entitled under Article 2 to release of their vessels seized in British ports, and that the one surviving ship and the appraised values of the lost ships should be treated as German property under the provisions of the Treaty of Versailles.

It has been usual for nations-especially since the good example set by Turkey in its declaration of war against Russia, October 4, 1853-to allow a certain number of days for vessels to leave port, and to exempt from capture upon the high seas, merchant vessels of the enemy which had left their home ports before the beginning of war.

In the absence of an agreement to this effect, and, it would appear, also in the absence of reciprocity, merchant vessels of the enemy are still liable to capture, although they may have left their home ports before and without knowledge of the outbreak of war.

Of the many cases on this subject, see The Porto, French Prize Court, Journal Officiel, March 30, 1915, p. 1732 (1914), captured at sea by the French mine layer Pluton, August 5, 1914.

On the whole subject, see Convention VI, Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, signed at The Hague, October 18, 1907, Appendix, post, p. 1149.

1 The principal case is reported more briefly in 1 Salk. 46 (1697), as follows: "If an alien enemy comes hither subsalvo conductu, he may maintain an action; if an alien amy comes hither in time of peace, per licentiam domini regis, as the French Protestants did, and lives here sub protectione, and a war afterwards begins between the two nations, he may maintain an action; for suing is but a consequential right of protection, and therefore an alien enemy, that is here in peace under protection, may sue a bond; aliter of one commorant in his own country."

pears that the plaintiff is an alien enemy, and came here sine salvo. conductu. He admitted, that an alien enemy, who comes here with safe conduct, may maintain an action. But unless there is a safe conduct, though it be per licentiam et protectionem, he cannot maintain an action. For by the same reason a captive or prisoner of war may maintain an action. But to that it was answered and resolved, that the necessity of trade has mollified the too rigorous rules of the old law in their restraint and discouragement of aliens. A Jew may sue at this day, but heretofore he could not, for then they were looked upon as enemies. But now commerce has taught the world more humanity. And as to the case in question, admit that the plaintiff came here before the war was proclaimed (for so it may be intended), then this action is maintainable: 1. Because there was no need of a safe conduct in time of peace. 2. Though the plaintiff came here since the war, yet if he has continued here by the king's leave and protection ever since, without molesting the government or being molested by it, he may be allowed to sue, for that is consequent to his being in protection.

And TREBY, Chief Justice said, that wars at this day are not so implacable as heretofore, and therefore an alien enemy, who is here in protection, may sue his bond or contract, but an alien enemy abiding in his own country cannot sue here. And Dier, 2 b. pl. 8, and the other books ought to be understood so.

Note, that TREBY, Chief Justice, said in this case last Trinity term, that the king may declare war against one part of the subjects of a prince, and may except the other part. And so he has done in this war with France, for he has excepted in his declaration of war with France all the French Protestants. And of such proclamations all ought to take notice, because the war begins only by the king's proclamation.

2 In Sparenburgh v. Bannatyne, 1 Bos. & P. 163, 170 (1797), it appeared that the plaintiff, a German, was captured on board a Dutch ship during war between Holland and England; that the ship was, at the time, committing an act of hostility against Great Britain; that the plaintiff was taken as prisoner of war to St. Helena. where, with the consent and permission of the commanding officer of the English troops, he made a contract to serve as a seaman upon the defendant's vessel, the Caledonia.

On suit brought by the plaintiff for his wages under the contract, the defendant contended that the plaintiff was an alien enemy when captured; that he remained so during the time when he was a prisoner of war, and that therefore, he could not sue in an English court.

On this state of affairs, the court held that the plaintiff was an alien enemy only during the time of his temporary allegiance to the enemy, and that when his temporary allegiance was severed, he became a neutral, and therefore entitled to sue.

In the course of his opinion Chief Justice Eyre said:

"This is certainly one of the hardest cases I ever knew, and I think we ought to lean against it. And if a distinction is to be found between the permanent character of alien enemy, to which the courts of justice cannot give protection, and the temporary character, we shall readily adopt it. As to the ground of policy which has been taken in argument for the defendant, namely, that a benefit would result to the enemy from the plaintiff's recover

THE CHARLOTTE.

(High Court of Admiralty, 1813. 1 Dodson, 212.)

This vessel, under American colors, took on board, at Providence, in Rhode Island, a cargo of provisions and other goods, with which she sailed, bound to Grenada, and arrived at the port of St. George, in that island, on the 16th of April, 1809. On the 19th of the same month the vessel was seized by Lieutenant Middleton, representing himself to be the commander of His Majesty's prison ship Antigua, and was by him proceeded against for a breach of the revenue laws. On the 24th of April a claim was given by the master for the ship and cargo, as the property of an American merchant; and on the same day the vessel and cargo were again seized by Thomas Martin, a searcher in the customs for the port of St. George, in the island of Grenada, on whose behalf an information was afterwards filed. On the 12th of May the cause came on for hearing in the Vice-Admiralty Court, when the judge pronounced the ship and cargo to be forfeited, but reserved the question respecting the rights of the informants. On the 27th of May the reserve question came on, when the judge dismissed the information filed on behalf of Lieutenant Middleton, for want of legal authority to make the seizure on which it was founded, and adjudged the brig and cargo to be forfeited under the information filed by Thomas Martin, and the net proceeds to be divided, one third to the collector for the use of His Majesty, one third to the commanderin-chief of the island, and one third to the informant. From this sentence an appeal was prosecuted by the claimant, and an intervention given on behalf of Lieutenant Middleton. In consequence of the war which has since taken place between this country and America, the appellant has become an alien enemy; and the question which stood first for the decision of the court was, whether he could, under such circumstances, be allowed to prosecute his appeal. A second question arose between the two seizors, and, as it was admitted that the seizure by Lieutenant Middleton was first in point of time, the case depended

ing; it is a policy, perhaps doubtful, certainly remote, and which I do not hold to be satisfactory. I take the true ground upon which the plea of alien enemy has been allowed is, that a man, professing himself hostile to this country, and in a state of war with it, cannot be heard if he sue for the benefit and protection of our laws in the courts of this country. We do not allow even our own subjects to demand the benefit of the law in our courts, if they refuse to submit to the law and the jurisdiction of our courts. Such is the case of an outlaw. Modern civilization has introduced great qualifications to soften the rigours of war, and allows a degree of intercourse with enemies, and particularly with prisoners of war, which can hardly be carried on without the assistance of our courts of justice. It is not therefore good policy to encourage these strict notions, which are insisted on contrary to morality and public convenience. As the real justice of the case is with the verdict, and a legal distinction to exclude this unworthy defence can fairly be maintained, I think no new trial should be granted."

on his competency to make the seizure. It appeared that he had, in the year 1805, been appointed to the command of His Majesty's ship Antigua, then used as a prison ship, and that his appointment had not been revoked at the time of this seizure. The prisoners, however, had been removed to the non-commissioned vessel, The Arethusa, which had been hired for their reception in consequence of The Arethusa [Antigua] having become unfit for the purpose.

Sir W. SCOTT. This was a suit originally instituted against this ship and cargo for a breach of the revenue laws, in the Vice-Admiralty Court of Grenada, where the property was condemned to the crown and the seizors, in the usual proportions. It was not a personal action, but a proceeding in rem; and the sentence of the court, as usual in cases of this kind, condemned the thing itself. A person representing the owner appeared, claiming the restitution of the goods; and, I think, he has been justly described to have come before the court in the character of plaintiff, since the policy of the law throws on him the duty of a plaintiff the onus of making out his case. How far he discharged that duty in the court below, it is impossible for me to say, since the proceedings are not before me. It appears, however, that this claim was rejected. He then comes before this court as appellant, which character he had a perfect right to sustain; but, unfortunately for him, the war with America takes place, and imposes on him a disability in law to carry on an action in any of the courts of this country. The sentence of the court below must be taken as right, unless it has been reversed by the judgment of a superior court. Has the party, who, by the intervention of hostilities, is become an alien enemy, a right to come forward in the Court of Appeal, and ask for a reversal of the sentence? I am clearly of opinion that he has not. It is an universal disability under which he labors, and which all courts are bound to notice. Whatever rights he might have possessed pass to the crown. The officers of the crown might, if they had thought proper, have defended the claim; and, if they had succeeded in obtaining a reversal of the sentence, the king would have been entitled to the whole, instead of a proportion, of the property. But, to the party himself, the court can assign nothing, nor has it the power of attending to his claims in any manner. It is under an obligation of shutting its ears against his complaints. The cases which have been cited from Dallas by Dr. Stoddart, appear to be of a different kind. I have not had an opportunity of looking into them, but they appear to have been personal actions. It has not been much the practice, in modern times, to proceed against the property of enemies found in the country, but it is nowhere laid down as law, that an inquest of office might not now be had, and the property confiscated. I remember a proceeding to that effect in the American war; and there can be no doubt that the law remains

3 State of Georgia v. Brailsford, etc., 3 Dall. 1, 1 L. Ed. 483 (1794).