Japanese practice. The subsequent case of The Craiova called forth some interesting pronouncements from the Russian Prize Courts as to the necessity of a vessel complying with the regulations passed by the State whose flag she purports to carry, and also as to the effect of a change of nationality of a shipowner effected after the outbreak of war. A claim to the ship was put forward by a Rumanian subject who, however, was found to be only an apparent claimant, having no personal rights of his own and acting in the interests of some concealed person. All the evidence pointed to the inference that the real owner was an Ottoman national who, shortly after the beginning of hostilities, had succeeded in acquiring Greek citizenship without, the consent or the release of the Turkish Government. Going one step further in his endeavours to escape the consequences resulting resulting from his Ottoman nationality, the real owner had secured Rumanian registry for his ship, and had sailed her under the Rumanian flag. There were two concurrent findings in this case by the Russian Prize Courts. On the first question, it was held that, although The Craiova had duly obtained the right to fly the Rumanian flag, she had violated the laws of that country by not having a single Rumanian subject amongst her crew, whilst at least one-third of the officers and men on board should have been of that nationality, and had therefore forfeited the right to her flag. On the second point, it was decided that the change of nationality of the shipowner from Turkish to Greek was, in the circumstances of the case, of no international validity, and could not be recognised by the Court.4 § 63. Japan, which, previously to the Great War, had consistently adhered to the doctrine of 4 Judgment of the Sebastopol Prize Court of January 9, 1916; affirmed on appeal by the Petrograd Supreme Prize Court, March 31, 1916, Rep. Fry Libr. domicile, adopted for the first time the nationality test in the Naval Rules of October 6, 1914. It is only in cases of double nationality rendering the determination of the real nationality difficult to ascertain that Japan falls back on domicile. The Japanese system constitutes, in some respects, an innovation, and appears to have been inspired by a desire to conciliate the continental practice of nationality with the Anglo-American criterion of domicile. With regard to vessels, the Rules of 1914 follow the provisions of Article 57 of the Declaration of London: "The neutral or enemy character of a vessel is determined by the flag which she is entitled to fly " (Article 18). OWNERSHIP AND NOT SPECIAL RIGHTS THE REAL $ 64. The question of national character British cases depends upon ownership at time of seizure. It was thus held by their Lordships in The Odessa that British Prize Courts, in ascertaining the national character of the property seized, had always taken ownership as the test, meaning by ownership the property or dominion as opposed to any special rights created by contracts or dealings between individuals. It is, in fact, a wellaccepted principle that a capture jure belli overrides all previous liens, and that the seized property is acquired free of all equities. The reason for 5 Article 19 of the Japanese naval rules is as follows: The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of the nationality of the owner. In a case where he has double nationalities, the neutral or enemy character of the goods is determined by the neutral or enemy character of his domicile. 6 [1916] 1 A. C. 145. adopting as the real criterion of character ownership, as opposed to any special proprietary rights, rests on the ground that " the existence of a general property or dominium in personal chattels is recognised by the law of all civilised nations, whereas the existence of special rights and the question whether such rights are proprietary or otherwise depends largely on the particular municipal law which may be applicable." A further argument is that seizure during war of enemy vessels and cargoes at sea would be a hazardous and almost worthless right if captors were confronted with claims based on mortgages, liens or other charges, the investigation of which required difficult and endless inquiries into the contractual relations of private parties. 8 The rule had already been clearly expressed in 1804 by Lord Stowell in The Tobago, that all considerations of liens or incumbrances of such species were excluded in a British Prize Court. The consequence of allowing similar claims would subject the captor to the disadvantage of having neutral liens set up to defeat his rights upon enemy property, whilst he could never entitle himself to any advantage from hostile liens upon neutral goods. There was almost complete uniformity during the Great War by the various Prize Courts in rejecting liens on seized property. The established British rule on the subject was. 7 The Parchim, [1918] A. C. 157, 160. 8 (1804), 5 C. Rob. 218; and The Marianna (1805), 6 C. Rob. 24. Cf. The Ariel (1857), 11 Moore P. C. 119. 9 reaffirmed by Sir Samuel Evans in The Marie Glaeser: "Upon the authorities, upon principle, and upon grounds of convenience and practice, claims based on liens, pledges, mortgages, insurance or any other security, must be rejected." " And the fact that a lien is on enemy or a British or Allied ship can have no importance.1 Nor do Prize Courts draw any distinct line between vessels and cargoes laden on them as regards charges or liens. Cargoes are in fact dealt with upon the same footing as ships.2 cases. § 65. The practice relied upon by the United American States was clearly stated by the Supreme Court in The Hampton: It would require pretty strong authority to induce us to import into the Prize Courts the strict common law doctrine which is sometimes applied to the relation of the mortgagee to the property mortgaged. But it is unnecessary to examine this question minutely, because an obvious principle of necessity must forbid a Prize Court from recognising the doctrine here contended for. If it were once admitted in these Courts, there would be an end of all condemnations. As soon as a war was threatened, the owners of vessels and cargoes, which might be so situated as to be subject to capture, would only have to raise a sufficient sum of money on them by bona fide mortgages to indemnify them in case of such 9 [1914] P. 218. Cf. The Odessa, [1916] 1 A. C. 145; The Gothland, [1916] P. 239n; The Frogner, July 24, 1917, Off. Tr. Notes; and Supreme Court of Bermuda in Prize in The Leda, [1914] 1 B. & C. P. C. 233; Prize Court for Egypt in The Emil, [1915] ibid., 257. 1 The Clan Grant, March 16, 1915; The Novara, October 6, 1915, Off. Tr. Notes; The Eugene Schneider, [1915] (French vessel) 1 L. R. P. C. 344; The Kwango, [1915] (Belgian vessel) 2 ibid., 194. 2 The Marianna (1805), 6 C. Rob. 24: The Ida (1854), Spinks, 23; The Odessa; The Cape Corso, [1915] P. 52. French cases capture. If the vessel or cargo was seized, the owner need not appear, because he would be indifferent, having the value of his property in his hands already. The mortgagee, having an honest mortgage which he could establish in a Court of Prize, would either have the property restored to him or get the amount of his mortgage out of the proceeds of the sale. A principle which thus abolishes the entire value of prize capture on the high seas, and deprives blockades of all dangers to parties disposed to break them, cannot be recognised as a rule of Prize Courts.3 § 66. The doctrine adopted by the French Prize Courts was in accord with the British and American statements of the law. It was decided in The Kirkoswald that it is only the owner who, on principle and in accordance with a constant series of decided cases, is entitled to claim the release of property captured by a belligerent in the exercise of the right of prize. In The Corcovado, the Court rejected any construction of the law which would have the effect of making a captor the assignee of the captured property and bound by any contracts or other engagements entered into by the proprietor of the goods. Whatever may be the legal position recognised to a pledgee by French legislation in civil matters, he cannot, in a Prize Court, avail himself of any similar rights in his relations with the belligerent captor: The Eir. In the same manner, the claim of neutral underwriters who contended that, as a result of the abandonment by the assured of the insured cargo, they had become, according to an express clause in the insurance policy, the sole owners of the goods, was disallowed 3 (1866), 5 Wall. 372, 374. Cf. The Frances (1814), 8 Cranch. 418; The Mary (1815), 9 ibid., 126; The Carlos F. Roses, [1900] 177 U. S. 655. 4 [1920] J. O., September 24, 1920, 14101. Cf. The Seriphos, [1922], ibid., March 15, 1922, 2959 (Conseil d'Etat). 5 [1919] J. O., November 7, 1919, 12510. 6 [1916] Conseil d'Etat, affirming decision of Prize Court, [1916], ibid., June 1, 1915, 3517, and May 24, 1916, 4622. |