the Prize Regulations nor in the London Declaration, an express prescription in regard to this matter is met with. Nor has the Prize Regulation indirectly provided for the settlement of that matter. The plaintiff believes that such a provision is found in No. 114 of the Prize Regulations. The judge of first instance has justly denied this, although we can not absolutely agree with him in all the reasons he gives regarding this matter. In the article referred to the commander is directed, before proceeding with the destruction of a ship, to see if the loss thereby accruing to the enemy is equivalent to the compensation for damages which must be paid for that part of the cargo subject to seizure and which is destroyed at the same time. In connection with this reference is made, parenthetically, among other things, to article 18, which deals with the seizure of enemy ships and states which part of the cargo is, at the same time, subject to seizure. This, in effect, looks as though the author of the Prize Regulations had, when dealing with article 114, thought that in the case of the destruction of an enemy ship compensation must be made for the part of the cargo not subject to seizure; it must also be admitted that the said reference bars the course taken by the first instance when it assumes that Article 114, even as the preceding and the following provision, dealt only with the destruction of neutral ships. In spite of that, however, the provision can not be given such scope of interpretation as the plaintiffs meant to lend to it. If it is so understood, it would materially come into a certain contradiction with that which the Prize Regulation prescribes in the immediately following article. As can be clearly seen from this, the Prize Regulation does not hold that, for the destruction of merchandise not subject to seizure, compensation must be made in every case. In the case of the lawful destruction of a neutral ship, compensation is prescribed for the merchandise destroyed along with the ship but not subject to seizure, in so far as this concerns neutral merchandise, but not in regard to enemy merchandise which, although under the protection of the neutral flag, is likewise not subject to seizure. We must, furthermore, bear in mind that there are also enemy ships that are not subject to seizure, and, therefore, not subject to destruction, so that, even although at some time-possibly by reason of a pardonable error-the destruction took place, it may yet be asked whether or not a distinction should be drawn in regard to compensation for values destroyed along with the ship, between neutral and enemy merchandise, and for this reason it could seem advisable to direct the commanders of vessels, for such eventualities, to make the inquiry incumbent upon them according to article 114. But it is above all important to remember that article 114 is not sedes materiæ and that, therefore, even assuming that the author of the law thought that in case of the lawful destruction of an enemy ship claims for compensation could be presented in behalf of the merchandise of neutrals, it would be wrong to find therein a positive decision of this at least doubtful, and at all events very controverted question which was left open, although discussed at the London Conference. As Wehberg points out in Oesterreichische Zeitschrift für öffentliches Recht, vol. II, 3 p. 282, Heilfron, Jur. Wochenschrift, 1915, p. 486, goes too far when he attributes to the Prize Regulations only the importance of an order promulgated by the emperor to the naval authorities. The Prize Regulations contain, to a large extent, positive law. But, with regard to the provision now under consideration, Heil fron's characterization fits perfectly. This article 114 is, in effect, but an order to the commanders of ships. Through it only the commander-inchief in war speaks, and not the legislator. It is not its purpose to establish material right and it does not do so. If, therefore, we are compelled to consider the most general principles of law in connection with the rules of the general law of warfare, it is found with absolute certainty that neutrals are not entitled to present a claim in case the destruction of the prize was, in the circumstances, justified. See article 112 of the Prize Regulations. The taking to port and the seizure of the enemy ship constitute a lawful war measure against the foreign state and stand approved in international law. Claims for damages, either on the part of the nationals of enemy states or on the part of neutrals cannot in all such cases be upheld. To be sure, according to article 3 of the Paris Declaration, neutral merchandise (that is to say, merchandise that is not contraband) may not be seized on board an enemy ship. It is, therefore, not subject to seizure in case the prize is taken to port. But it can be presumed that the parties interested in the cargo are entitled to present claims for compensation of damages that have arisen as a result of the ship's being taken to port, as the result of an interruption in the trip of the ship or the taking of the ship to another but the point of destination. Nor is it legitimate to present a claim for compensation in case the merchandise itself, as a result of the seizure of the ship, has sustained damage, nor for instance, if on the further journey of the prize it is lost as a result of an accident at sea. Since the seizure is a lawful act, there is no legal principle on which a claim may be presented for the damage which the neutral has sustained rather because he entrusted his merchandise to a ship exposed to danger. Therefore, the war measure being lawful, there is no legal ground on which a claim for damages may be based in case the merchandise is lost because the war operation directed against the ship was, according to the circumstances, necessarily directed against her cargo as well. The legal question that is important in this matter may arise even in the course of warfare on land. Conditions may be such, and very frequently will be found to be such, that, for instance, while a fortified or defended place is being bombarded, the property of neutrals is damaged. But even in warfare on land where private property is protected to a greater extent than in naval warfare, there is no obligation, in such SCOTT INT.LAW-51 cases, on the part of the belligerent state, to make compensation even to neutrals. See article 3 of the Fourth Convention of the Second Hague Conference. Compare Geffcken in Heffter, Völkerrecht (8th Ed.) § 150, note 1 (incorrect, at least inadequate, in that text of Heffter); Calvo, Droit International (4th Ed.) vol. IV, §§ 20 to 50 to 22 to 52; Bonfils, Droits des gens (1908) § 1217; Bordwell, Law of War (1908) P. 212. But as regards, in particular, the conditions of naval warfare, there is no protection afforded to neutral merchandise by article 3 of the Paris Declaration, against the acts of the belligerent party made necessary by the circumstances of the war. Article 3, referred to above, is intended to afford protection against the prize law to which, up to the time of the Paris Declaration, neutral merchandise in the enemy ship was exposed. Whatever the circumstances of the war demand, must be permitted to take place without regard to the fact that neutral merchandise is on board the ship. Although, according to Article 2 of the Paris Declaration, the neutral flag protects enemy merchandise, this does not mean that vice versa the enemy ship is to be protected through neutral merchandise, protected in the first place, of course, only against destruction, but at the same time, and in innumerable cases, against any exercise of the prize law. As far as can be ascertained, no one has disputed this even down to the most recent times. Compare Resolutions of the French Conseil d'État, May 21, 1872, in Dalloz, Jurisprudence générale (1871) III, No. 94, in the prize case Ludwig and Vorwärts; Dupuis, Le Droit de la guerre maritime (1899) p. 334; De Boeck, De la propriété ennemie privée sous pavillon ennemi (1882) § 146; Bordwell, Law of War (1908) p. 226; Wheaton, International Law (4th Ed.) p. 507, § 359e; Oppenheim, International Law (2d Ed.) Vol. II, p. 201 ff.; Calvo, Droit International (4th Ed.) Vol. V. §§ 30, 33, 30, 34; Hall, International Law (5th Ed.) p. 717 ff. The assertion of the plaintiffs that the decision of the French Prize Court in the matter of The Ludwig and The Vorwärts had been al most generally disputed in the literature, has, apart from the quotations adduced from the most recent sources (Wehberg and Schramm; the quotation from Hall, p. 187-see above-is unintelligible), not been supported by documents, and must, therefore, be regarded as incorrect. Only in the most recent times, especially in Germany, there has arisen a conception of the theory which quite generally in the case of the destruction of merchandise not subject to seizure-merely or only in so far as neutral merchandise is concerned-demands the obligation to make compensation as a basic principle. Compare Schramm, Prisenrecht (1913) p. 338 ff.; Wehberg, Seekriegsrecht (1915) p. 297, notes 3 and 4; and Oesterr. Zeitschrift für öffentliches Recht., cited elsewhere; Rehm, Deutsche Juristenzeitung (1915) p. 454. At the same time the general obligation for making compensation SCOTT INT.LAW is felt preconceivedly as being self-evident. The foundation is lacking and where it is subsequently sought to establish one, it does not appear convincing when compared with the explanations given above. Nor can the logic of the latter expositions be attacked by pointing out that warfare on land remains locally circumscribed to the national territory of the belligerents, while the ship sails the open seas. The fact that an enemy ship on the high seas is subject to seizure, and, if necessary, to attack, rests on the condition of international law as it exists, a condition which is perhaps to be deplored, but which is, nevertheless, a condition of fact. In all other respects, as soon as the ship is on the high seas, she is a part of the territory of her state on board of which the neutral, by a voluntary act on his part, has placed his merchandise, because he freighted it on a vessel of a belligerent country for the purpose of transportation across the sea. In conclusion, it should be stated that it is not a defect of procedure when, as is stated in the appeal, the Prize Court has refrained from deciding as to whether or not the merchandise, to which the claims refer, was subject to seizure. It is the object of section 1 of the Prize Court Regulations clearly to define the prize jurisdiction, and if in section 2 the extent of the decision is prescribed, this means that thereby a limit has been set to which the courts must confine themselves; but nowhere is it prescribed that in any particular case a decision must be handed down with regard to the said questions even when the settlement of the claims presented does not depend thereon. Notwithstanding the summons issued the plaintiffs under 9 and 12 have not paid the amount necessary to cover expenses. Their legal remedy was, therefore, not to be dealt with.12 12 The Indian Prince, Entscheidungen des Oberprisengerichts in Berlin, 1918, 87 (1916), was an English vessel captured September 4, 1914, and sunk on its way from Santos by way of Trinidad, to ports of the United States. Part of the cargo belonged to citizens of the United States. In the decision of the case, the Supreme Prize Court of Berlin considered at great length whether, according to article 12 of the Treaty of 1785, and article 13 of the Treaty of 1799, which had been revived by article 12 of the Treaty of 1828, between Prussia and the United States, compensation should be made to the American owners for the destruction of their property. The court decided that the destruction of the property did not render Germany liable, on the ground that the neutral cargo shared the fate of the vessel which had been legally sunk. The Arena, Entscheidungen des Oberprisengerichts in Berlin, 1918, 343 (1917), was a Norwegian, and therefore a neutral, ship, captured by a German submarine on April 2, 1916, as carrying contraband of war, and sunk because its proximity to the enemy forces at the time of capture made recapture possible. The Supreme Prize Court of Berlin held, as to part of the cargo, consisting of non-contraband paper, that title had not passed to the English, and that it was neutral. Damages were allowed. CHAPTER XIII RETALIATION THE LEONORA. (Privy Council, 1919. L. R. [1919] A. C. 974.) Appeals from decrees of the Admiralty Division (in Prize) dated April 18, 1918.1 * The judgment of their Lordships was delivered by LORD SUMNER.2 The Leonora, a Dutch steamship bound from Rotterdam to Stockholm direct, was stopped on August 16, 1917, by His Majesty's torpedo boat F77, outside territorial waters, and shortly after passing Ymuiden. She was taken into Harwich. Her cargo, which was neutral-owned, consisted of coal, the produce of collieries in Belgium. It was not intended that she should call at any British or Allied port, nor had any application been made on her behalf for the appointment of a British port for the examination of her cargo. Both ship and cargo were condemned, pursuant to the Order in Council, dated February 16, 1917, and both the shipowners and the cargo owners appeal. * * * The appellants' main case was that the Order in Council was invalid, principally on the ground that it pressed so hardly on neutral merchants and interfered so much with their rights that, as against them, it could not be held to fall within such right of reprisal as a belligerent enjoys under the law of nations. * * * Upon the validity of the Order in Council itself the appellants advanced a two-fold argument. The major proposition was that the Order purported to create an offence, namely, failure to call at a British or Allied port, which is unknown to the law of nations, and to impose punishment upon neutrals for committing it; in both respects it was said that the order is incompetent. The minor proposition was that the belligerent's right to take measures of retaliation, such as it is, must be limited, as against neutrals, by the condition that the exercise of that right must not inflict on neutrals an undue or disproportionate degree of inconvenience. In the present case various circumstances of inconvenience were relied on, notably the perils of crossing the North Sea to a British port of call and the fact that no particular port of call in Great Britain had been appointed for the vessel to proceed to. 1 [1918] p. 182. 2 Parts of the opinion are omitted. |