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ment should be made of the fact that he (Mr. Mowinckel) was in ignorance of the illegal transportation which caused the capture: Decides:

The capture of the steamer Heina and of its cargo is declared good and valid, and the value thereof adjudged the rightful claimants, in conformity with the laws and regulations.

All effects, money, nautical instruments and other personal objects belonging to the captain and crew are in justice left at the disposition. of their rightful owners.

Official acknowledgment is made of the request of Mr. J. Ludwig Mowinckel, representative of the company J. Ludwig Mowinckel Dampskibsselskap, proprietor of the steamer Heina, that for all intents and purposes he be declared ignorant of the illicit transportation that caused the seizure of the said vessel and its cargo.

The remaining pleas of Mr. J. Ludwig Mowinckel are rejected.
Deliberated at Paris at the meeting of September 29, 1915. * *

10 The steamer Alexandria, belonging to the German company Kosmos and lying in the port of San Francisco, was transferred shortly after the outbreak of the World War to an American company and cleared for Valparaiso October 15, 1914, under the American flag, with a cargo to the order of the Valparaiso Electric Tramway Company, a German concern, under her new name the Sacramento. The steamer herself was consigned to the agent of the Kosmos company in Valparaiso. En route she was met by the German cruiser Dresden, which took her to a bay in the Juan Fernandez Islands, belonging to Chile. While there, most of her cargo of coal was taken by a squadron of German warships whose commandant, Count von Spee, gave the captain a certificate that the coal had been taken under the right of "pre-emption," adding that its value, with damages, would be eventually paid by the German government, and ordered him to proceed to Valparaiso. The captain of the Sacramento entered no protest on the log. On arrival at Valparaiso the captain filed a protest with the American vice consul. The Chilean government, after investigation, held that the Sacramento should be considered an auxiliary of the German squadron, and interned her, after a notice to leave the port of Valparaiso within 24 hours had remained unheeded. The American government concurred in this view. Alexandro Alvarez, La grande guerre Européenne et la neutralité du Chili, 1915, p. 266.

In The Edna, L. R. [1921] 1 A. C. 735, 742, 743 (1921), Lord Sumner said, on behalf of the Privy Council:

"It must be possible to draw a line between unneutral service and 'fleet auxiliaries' and between the cases in which neutrals can validly buy and take delivery of enemy ships and the cases in which they cannot; otherwise transactions which are expressly permitted to neutrals might be invalidated by circumstances of which they had no notice and could form no estimate."

His Lordship thereupon attempted to draw the line, saying on behalf of the Privy Council:

"That a vessel which is or has been a portion of the armed forces of a belligerent cannot by a mere private transaction be placed beyond the reach of capture on the high seas is well settled (The Minerva, 6 C. Rob. 396 [1807]; U. S. v. The Etta, 4 Am. Law Reg. [N. S.] 387, Fed. Cas. No. 15,060 [1864]; The Georgia, 7 Wall. 32, 19 L. Ed. 122 [1868], and there is authority for the proposition that while a vessel formally incorporated in the enemy forces is and continues to be, for this and cognate purposes, a public ship of war, her mere actual employment in that capacity without formal incorporation or commission will also bring upon her the like disability (The Ceylon, 1 Dod. 105 [1811]; and cf. H. M. Submarine E. 14, 36 The Times L. R. 119, [1920] A. C. 403). Various reasons have been given for this rule, as that transfer

THE FEDERICO.

(French Prize Court, 1915. Journal Officiel, May 10, 1915, p. 2995.)

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

On one hand, the proprietor of the Spanish steamer Federico of Barcelona, captured at sea on October 10, 1914, by torpedo-boat 360; And, on the other hand, the minister of the Navy, representing the captors and the fund for disabled sailors.

THE COURT, after due deliberation:

Concerning the regularity of the capture:

*

Whereas, it appears from the examination that on October 10, 1914, the date of the capture of the Spanish steamer Federico by torpedo-boat 360, the condition of the sea did not permit the staff of the torpedoboat to proceed to a thorough visit of the Federico; whereas, under

ability is an exception granted to enemy property in favour of commerce and that ships of war are not articles of commerce, or that such transfers would enable a belligerent to rescue himself from the disadvantage into which he has fallen and so to shift the disadvantage to his opponent, or that the ship sold might afterwards find its way back into the service of the flag to which she had belonged. If a public man-of-war remains in a neutral port for more than the limited time permitted to her by recognized rules, she has to be interned, for otherwise the neutral state would be rendering an indirect service to a belligerent as such. If it were open to a subject of that state to buy her under such circumstances, the payment of the price would be a direct service to the belligerent of a very real character, for instead of a ship which he could not use, he would get cash, which he could. The precise foundation of the rule, however, need not now be determined.

"In the case of a ship which is not and never has been a part of the armed forces of a belligerent, other tests may be applicable. Ships which enlist in the service of such armed forces, though not armed themselves, may naturally be the subject of rules more stringent than those which govern ordinary merchantmen. The forces assisted may consist of single ships or of whole fleets. Assistance may be rendered when in company or when detached; it may consist in the supply of coal and stores, or in the collection and forwarding of information. An unarmed ship may be of service as a decoy or as a screen; the assistance may be rendered casually or on a system, voluntarily or under orders, gratuitously or for hire. Such service is not necessarily confined to ships of the country to which the fleet assisted belongs or of a country engaged in the war at all. Again, such a ship may be captured in delicto and while rendering the service or after the service has come to an end. In the latter case different considerations may well arise, unless she is to be clogged perpetually for a single transgression and be incapable of valid transfer however long she may have mended her ways.

"There seems to be no authority in point. Their Lordships considered the case of The Alwina, 34 The Times L. R. 199, [1918] A. C. 444, as one of the carriage of contraband only. The neutral vessel there was released and not treated as if she were a fleet auxiliary, although it was not disputed that the ship and her cargo had been dispatched with the object of succouring a German squadron at sea, and if no services were actually rendered this was due to circumstances equally unforeseen and unwelcome, so far as her Dutch owners were concerned. The case, however, at most throws light on the liability of such an assistant to be subsequently captured while in the same ownership, and does not purport to decide anything as to the validity of an intervening change of ownership."

these circumstances the right of visit could be regularly effected only at the port of Toulon where the vessel had been conducted; Concerning the validity of the capture:

Whereas, the Naval Conference held at London in 1909 passed on February 26 a declaration that has not been ratified by France; but whereas, the decree of August 25, 1914, mentioned above, rendered the said declaration applicable during the war with reservation as to the additions and modifications it made at the same time;

Whereas, thus the provisions contained in the declaration and those in the decree together constitute a unilateral act of the French government, and it belongs to the Prize Court, charged with its application, to determine its sense and scope;

Whereas, according to the terms of article 45 of the Declaration of London, a neutral ship is to be confiscated when the special object of its voyage is to transport as passengers individuals belonging to the armed force of the enemy;

Whereas, it is proved from the inquiry that the steamer Federico is not a packet employed in the regular transportation of passengers; Whereas, at the time of its capture at sea the special object of its voyage was the transportation from Barcelona to Genoa of numerous German and Austro-Hungarian passengers, the great majority of these belonging by their age to the classes mobilized by their respective governments and traveling in response to this call;

Whereas, under these circumstances, these passengers should be regarded as incorporated in the armed force of the enemy in the sense of article 45 cited above, and whereas the ship was thus, according to the terms of the said article, subject to confiscation:

Decides:

The capture of the Spanish steamer Federico, including its fittings, equipment and accessories, is declared good and valid, and the net value thereof is adjudged to the rightful claimants, in conformity with the laws and regulations in force.

Deliberated at Paris, March 15 and 16, 1915. *

* 11

11 "In the celebrated Trent Case, occurring in 1862, Messrs. Mason and Slidell [civilian commissioners from the Confederate States to Europe] were removed from a British private vessel by Commodore Wilkes of the San Jacinto, a public vessel of the United States. Great Britain insisted that the rights of a neutral vessel not only had been violated, for which she demanded apology, but she insisted that these persons should be replaced and returned on board a British ship. This was done, and they were actually placed on board a British vessel in or near the harbor of Boston. They were not British subjects, and their return could only have been demanded for the reason that they had been torn from British soil, and the sanctity of British soil, as represented by a British ship, had been violated. Citizenship or residence had no influence upon the question." Per Mr. Justice Hunt in Crapo v. Kelly, 16 Wall. 610, 631, 21 L. Ed. 430 (1872).

It may be said that Mr. Seward, at that time Secretary of State, admitted that these persons could not lawfully be taken from the Trent at sea, but contended that it might have been brought in as prize. See Lawrence's Wheaton (2d Ed. 1863) 939; Dana's Wheaton, 644 (1866); 3 Wharton's Digest, §§ 325,

THE LEIF GUNDERSEN.

(French Prize Court, 1918. Journal Officiel, Jan. 18, 1919, p. 709.)

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

On the one hand, the captain, owners, shippers and consignees of the Norwegian four-masted bark, Leif Gundersen, captured at sea on March 25, 1917, and declared seized on May 10, 1917, by the French naval authorities;

And, on the other hand, the Minister of the Navy, acting in the name of the state, and on behalf of the rightful claimants of the proceeds of prizes, according to the laws and regulations;

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

THE COURT, after having duly deliberated thereon:

Whereas, according to the report dated at Glasgow, Scotland, May 17, 1917, the Norwegian four-masted bark Leif Gundersen, from the port of Porsgrund, Norway, belonging to the firm Leif Gundersen of Porsgrund, laden with a cargo of 3,067 tons of Indian corn and previously seized on the high sea on March 25, 1917, in the course of a voyage from Baltimore, United States, to Odensee, Denmark, was declared captured by the French naval authorities as engaged contrary to neutrality in transporting enemy dispatches in the interest of the

enemy;

Whereas, it appears from two affidavits of W. Knott and W. Parkinson, officers of the British 'customs service, under date of July 16 and 24, 1917, that in the course of the stay, after visit and search, of the Leif Gundersen at Stornoway and later at Greenock, Scotland, on

328, 374; Bernard, A Historical Account of the Neutrality of Great Britain, 187-225 (1870). For a conservative British view, see Hall, Int. Law, 705-708 (4th Ed. 1895).

In the Manouba Case, between France and Italy, decided by the Permanent Court of Arbitration at The Hague, in 1913, it was held, inter alia, that the Italian authorities had the right during their war with Turkey to demand and compel the surrender of Turkish passengers on the Manouba, and, upon the refusal of the demand, to detain the vessel until it was complied with. See George Grafton Wilson's Hague Arbitration Cases, 326 (1915), and James Brown Scott's Hague Court Reports, 341 (1916).

In the interesting case of The Iro-Maru, Journal Officiel, December 25, 1916, pp. 11101, 11102, decided by the French Prize Council in 1916, the council, adopting the conclusions of Mr. Henri Fromageot, held that: .

"According to international law, application of which is made by article 45 of the Declaration of London of February 26, 1909, declared applicable under certain reservations not pertinent to the case by the Decree of November 6. 1914, in force at the time of the capture, a vessel although of neutral or allied nationality [the Iro-Maru was a Japanese vessel, and therefore an ally of France in the World War], is a legal prize if it is engaged in a voyage the special object of which is to transport an agent of an enemy state charged with carrying letters or news in the interests of said state."

April 7 and 13, 1917, the presence on board of about 3700 enemy dispatches was declared and confirmed;

Whereas, these dispatches, destined for Germany, were not transmitted by a public postal service;

Whereas, it appears from the reports made by the French Postal Censorship Service at London that, among these dispatches several were addressed to the German Imperial Office of Foreign Affairs at Berlin, coming especially from the Minister of Germany at Habana, and from the German consul at Florianopolis, Brazil;

Whereas, others referred to the disabling, to the prejudice of French and allied interests, of the machines of certain German vessels which have taken refuge at Brazil and at Honolulu, Hawaii;

Whereas, others had as their object either enemy propaganda or the maintenance of the economic and commercial power of enemy enterprises in South America;

Whereas, the nature and the character of the dispatches thus seized are not disputed;

Whereas, it appears from the examination which was held that the said dispatches were allowed to accumulate for a certain length of time pending opportunities of sending them into Germany by evading the allied cruisers;

Whereas, the captain had received instructions from Leif Gundersen, the shipowner, to attempt to evade hailing by the allied cruisers, and whereas, in fact the Leif Gundersen was at the time it was hailed holding a course tending to make it possible to evade the provisions laid down by the allies to assure the control of neutral vessels destined for the neighboring ports of Germany;

Whereas, under the control of prize jurisdiction, every belligerent has the right, by virtue of the law of nations, to detain, by regular hailing followed by capture, neutral vessels from engaging in operations contrary to neutrality;

Whereas, in truth, the shipowners of the Leif Gundersen allege that they were ignorant of the service rendered by their vessel to the enemy interests;

Whereas, for his part the captain claims that he did not know of the presence of the said dispatches on board his vessel and that they were taken on and concealed without his knowledge;

But whereas, the court does not have to examine the foundation of these allegations which, even if they were considered correct, would not be of a nature to hinder the application of the principle which has just been recalled;

Whereas, in fact the above-described dispatches related to the war and whereas their transport on account or in the interest of the German Empire, the enemy of France, constituted a service contrary to neutrality and of a nature to assist the enemy in the conduct of the

war;

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