the contraband." Article 43, I am convinced, applies to ships "other than enemy vessels" having contraband on board. The first paragraph of article 57 reads: "Subject to the provisions respecting transfer to another flag, the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly." The general report of the Naval Conference, held in London in 1909, is instructive on this point. 66 In the case of THE VROW ELIZABETH [1803] (5 C. Rob. 4; 1 Eng. P.C. 409), Sir William Scott (Lord Stowell), in 1803, in his judgment, said: " . a vessel sailing under the colours and pass of a nation is to be considered as clothed with the national character of that country. With goods it may be otherwise, but ships have a peculiar character impressed upon them by the special nature of their documents, and have always been held to the character with which they are so invested, to the exclusion of any claim of interest that persons living in neutral countries may actually have in them." It is true that in the same judgment he went on to say: When I lay down this rule I do not say that there may not be cases of such particular circumstances as to raise a reasonable distinction. The Treaty of Amiens had stipulated for the liberty of withdrawing British property from the ceded and restored islands. But the Governments of France and Holland afterwards refused to suffer such property to be exported from these Colonies otherwise than in ships of France or Holland, and on a destination to those countries. The difficulty which had arisen in the removal of British property for want of shipping may have induced our own Government to permit British ships to put themselves under Dutch flags for this particular purpose; and in such cases the particular situation of affairs arising out of this refusal to execute a treaty may have entitled parties to a relaxation of the general rule. But no ground of exemption whatever is stated in the present claim-nothing more than that the claimant found it convenient to place his vessel under the Dutch character; to which the answer is obvious, that with the convenience he must take also inconvenience attending such an act. . . . This ship has all the documents of a Dutch ship, and I have no hesitation in pronouncing her subject to condemnation." The learned Dr. Lushington in THE INDUSTRIE [1854] (Spinks, 54; 2 Eng. P.C. 297) remarked as follows: "What would become of belligerent rights if, when you search vessels under hostile colours, you are to be told 'this is not a Russian vessel; it is neutral, or nine-tenths is neutral. You are quite mistaken; it is entitled to restitution at the hands of the Court.' It is manifest that the right of search under these circumstances would be destroyed. It is clear that the whole trade of an enemy might be carried on with perfect impunity, and all the naval force of France and Great Britain would never be able to carry into execution those rights which they are undoubtedly justified in exercising by the Law of Nations." He added that in that case he entertained no doubt, and condemned the vessel. The same learned Judge, in giving judgment in THE PRIMUS [1854] (Spinks, 48; 2 Eng. P.C. 291), said: "There are two questions to be disposed of in this case: the one regarding certain claims for a share in the ship and the other relating to the cargo. The first is a pure question of law, whether the persons who now claim, and who are admitted, for the purpose of argument, to be neutral subjects, are entitled to have the ship restored. On the part of the Crown it has been contended that the flag and the pass are binding upon all persons having property or shares in the ship. In support of this principle, authorities have been brought before the Court which must govern it in this and all similar cases. The only distinction attempted to be established in the present case is that this is property in the vessel belonging to neutral subjects, which existed antecedent to the breaking out of the war. It has been urged" (continued Dr. Lushington) "that I ought to take notice of that distinction, but I apprehend that not only the authority of Lord Stowell, but every argument he used, go the whole length of saying, that whoever embarks his property in shares of a ship is bound by the character of that ship, whatever it may happen to be. If he reap the benefit accruing during peace, he must also take the consequence of war." The Attorney-General, in his argument, submitted that he was entitled to claim condemnation, although at the present time he was not asking for an order of sale. He argued that on a true construction of the Prize Courts (Procedure) Act, 1914, section 20 of the Naval Prize Act of 1864 was (for the purpose of this case) in full force and effect, and that thereunder the Court was required either to condemn or release the captured ship. Counsel for the claimants, on the other hand, submitted that the Court should decline to order condemnation, and should instead order a detention of the ship. He argued that section 20 of the Naval Prize Act of 1864 had been repealed by the Prize Courts (Procedure) Act, 1914, and that inasmuch as the new Prize Court Rules of 1914 came into force in this Colony on September 3 last, the Court should have regard to Order XXVIII. rule 1 thereof (notwithstanding its direction that this case should be continued under the Rules of 1898). Order XXVIII. rule 1 of the Rules of 1914, reads: "Where it is held in a suit for condemnation that the ship is an enemy ship, but in pursuance of some international convention, or otherwise, is only liable to detention and not to condemnation, the decree shall direct the marshal to retain the ship in his custody until further orders." Pressed as to what international convention or otherwise he relied on, counsel said he relied on the third article of the Sixth Hague Convention, and on article 6 of the Order in Council of August 4, 1914 (promulgated in this Colony on August 5). He quoted the recent case of THE TOMMI AND THE ROTHERSAND (ante, p. 16; [1914] P. 251), and referred to that of THE R. C. RICHMERS. (Times, Sept. 25, 1914). The question of whether and how far the provisions of the Hague Convention of 1907 are binding on a British Prize Court is one which I believe has not yet been decided. But it is unnecessary to have regard to this Convention in this. case, as, if it applied, the article which would have to operate would be article 3, and as to that Germany has not agreed. So no benefit can possibly be given under it. Order 6 of the Order in Council of August 4, 1914, has reference only to enemy merchant ships which, first, at the date of the outbreak of war were in any port in which the Order applied, or which, secondly, cleared from their last port before the declaration of war, and after the outbreak of hostilities entered a port to which the Order applied with no knowledge of the war. The cases of THE TOMMI AND THE ROTHERSAND (ante, p. 16; [1914] P. 251) and THE R. C. RICHMERS (Times, Sept. 25, 1914) were all cases of vessels which had been captured in port. The vessel in the present instance was taken, as pointed out already, at sea on August 8, and among her ship's papers is a German wireless certificate. I am clearly of opinion that section 20 of the Naval Prize Act, 1864, is in force for the purpose of this case, and that the Rules of 1914 are not applicable, the Court having elected to proceed P.C.C. 16 under the previous Rules; and further, that the Leda is undoubtedly a German vessel under a German master, with a crew mostly composed of Germans, and flying the German flag. Were the claimants even the actual shareholders, it appears to me the property must go with the capture of the vessel in which they have put their money. Assuming that the claimants had property in this vessel, or were the owners of the whole or any part of the vessel, the fact that the ship was sailing when captured under the German flag, with papers entitling her to do so, and was in the commerce of the German Empire, and navigated by a German master, would be fatal to their claim. This point I believe to have been decided in the recent case of THE MARIE GLAESER (ante, p. 38; [1914] P. 218), heard in the Admiralty Division of the High Court of Justice in England. I have no hesitation in ordering the condemnation of this vessel. INGHAM, J., and BLUCK, J., concurred. Decree of condemnation. [IN H.B.M. PRIZE COURT FOR EGYPT.] (Silting at Alexandria.) CATOR, P., and GRAIN, J. Feb. 6, 1915. THE ACHAIA. Enemy Ship Outbreak of War-Discharging in Belligerent Port-Offer of Safe-conduct Pass-Form of Pass-Refusal to Leave-Subsequent Detention-Hague Conference, 1907, Convention VI. arts. 1, 2. An enemy vessel, lying in a belligerent port at the outbreak of war, which fails to take advantage of permission to leave, accompanied by an adequate safe-conduct pass to a neutral port, is liable to condemnation. Suit for condemnation of an enemy vessel as prize. The Achaia, a German steamship of 2,732 tons, came into the port of Alexandria on July 31, 1914, to discharge a portion of her cargo. When war broke out between Great Britain and Germany, the detaining officer appointed by the general officer commanding the troops in Egypt offered her a safe-conduct pass to a neutral port with permission to leave at any time before sunset on August 14. She declined to go, and after the days of grace had expired she was detained by the Egyptian authorities, and on October 17 finally seized as prize by an officer from H.M.S. Warrior. Arthur Preston (H.M. Procurator-General), for the Crown. CATOR, P.-My brother deals so fully with the facts in the judgment which he is about to read that I will not recapitulate them. On the outbreak of hostilities the Achaia was in Alexandria, and under the old rule was liable to confiscation; but article 1 of the Sixth Hague Convention declares it to be desirable that an enemy ship found in a hostile port at the outbreak of war should be allowed to depart freely, either immediately, or after (which I think must mean within ") a sufficient term of grace, and to proceed direct after being furnished with a passport (in the French a laissez-passer) to its port of destination or such other port as shall be named for it. And article 2 says that ships which are not allowed to proceed under the terms of article 1 cannot be confiscated. The intention is clear that if they get a pass, by which of course is to be understood an adequate pass, and decline to make use of it, the old law will still apply. No one has disputed that proposition, but the owners contend that pass offered in this case was inadequate. the It is perfectly clear that Grogan Bey, the Chief Inspector of Ports, was authorised by the Government to give the Achaia a pass. Counsel could do no more than try to pick holes in its form, to complain that the time allowed was very short, and to contend that it was the business of the authorities to get the pass vised by the French Consul. Without discussing these points in detail, I have only to say that, in my opinion, the form, although framed for use in a British port, was quite adequate for its purpose; that the time was sufficient, and would have been extended had there been any necessity; and that there was no obligation on the Government to obtain a visé from a French 16* P.C.C. |