according to Article 51 of the Declaration of London.1 He added that in pursuance of this view the case had been submitted to the Prize Court at Hamburg and that it had rendered a judgment on July 10, 1915, upholding the legality of the destruction, but that it had at the same time upheld the validity of the treaties which made Germany liable for an indemnity. The Court being unable to fix the amount of the indemnity, for want of data, the German government proposed that the determination of the amount be entrusted to two experts, one selected by each party. The German government, he said, would promptly pay the amount as "a duty or policy founded on existing treaty obligations" but not as a satisfaction for the violation of American treaty rights. If this proposal should not be acceptable to the American government Germany was willing to submit the difference to the Hague Court of Arbitration. The American government agreed to accept the first suggestion on the assumption that the arrangement should include provision for an umpire in case the experts failed to agree and provided that the acceptance of the indemnity should be understood to be without prejudice to the American contention that the sinking of the Frye was without legal justification. The Secretary of State added that it would be necessary to determine in case the proposal were accepted whether, pending the arbitral award, the German government would govern its naval operations in accordance with its own interpretation or that of the United States. In a note of Sept. 20, 1915, the German Secretary of State informed the American government that it had given orders to its naval forces not to destroy American merchant vessels transporting conditional contraband "even when the conditions of international law were present." Here the correspondence ended and it may be added that the agreement to arbitrate was never carried out.

Sec. 3. Function of a Prize Court. In general, the office of a Prize Court is to determine the validity of maritime captures, that is, whether a particular capture was legal according to the principles of international law. The determination of various ancillary or incidental questions which arise in connection with the decision of the principal question also falls within 1 Ibid., 188.

The judgment is not printed in the collection of Prize Court decisions used in the preparation of this work and the German government declined to furnish the American government with a copy. Scott, A Survey of International Relations Between the United States and Germany, p. 333. Supp. to 10, ibid., p. 345.

'Ibid., 192.

the jurisdiction of the Prize Court, the extent of such jurisdiction varying in the different countries.1 Lord Parker said in the case of the Roumanian 2 "the chief function of a court of prize is to determine the question 'prize or no prize'; in other words, whether the goods seized as prize were lawfully so seized, so as to raise a title in the Crown." But where the Prize Court has once acquired jurisdiction over the principal cause it will exercise its authority over all the incidents: claims for freight, damages, expenses, costs, maritime torts, etc.3

Prize Courts, it may be observed, are set up both in the interest of the belligerent and for the protection of the rights of neutrals. Lord Sumner in the case of the Leonora thus defined this dual rôle:

"The office of a Court of Prize is to provide a formal and regular sanction for the law of nations applicable to maritime warfare, both between belligerent and belligerent and between belligerent and neutral. Whether the law in question is brought into operation by the act of both belligerents in resorting to war, as is the case with the rules of international law as to hostilities in general, or by the assertion of a particular right arising out of a particular provocation in the course of the war on the part of one of them, it is equally the duty of a Court of Prize, by virtue of its general jurisdiction as such, to provide for the regular enforcement of that right, when lawfully asserted before it, and not to leave that enforcement to the mere jurisdiction of the sword. Disregard of a valid measure of retaliation is, as against neutrals, just as justiciable in a Court of Prize as is breach of blockade or the carriage of contraband of war. The jurisdiction of a Court of Prize is at least as essential in the neutral's interest as in the interest of the belligerent, and if the Court is to have power to release in the interest of the one, it must also have inherent power to condemn in justice to the other."

Originally Prize Courts were regarded as national organs established for the purpose of enabling a belligerent state to ascertain and fix its own responsibility for the acts of its commissioned warships," but they have become more and more to

'As to this see Secs. 55 ff. infra. As the Belgian Prize Council remarked in the case of the Zaanstroom the rôle of a Prize Court is entirely different from that of the government, in that the latter may release a prize even where its capture was legal according to international law, whereas the Prize Court cannot do so.

II Lloyd 378; I Br. & Col. Pr. Cas. at p. 546.

'Sir Samuel Evans in the case of the Corsican Prince (I Br. & Col. Pr. Cas. 183), quoting Story's Notes on the Principles and Practice of Prize Courts (pp. 30-32). In the case of the Stigstad Sir Samuel Evans offered to decide as an arbitrator what sum, if any, should be paid the shipowners in consequence of the detention of their vessel, but he added that since such decision would be merely an arbitral award, there could be no appeal from it. VII Lloyd 356; III Br. & Col. Pr. Cas. at p. 396.

'Compare Pyke, 32 Law Quar. Review, p. 148, and 16 Jour. of Soc. of Comp. Leg. (new Ser. 1916), p. 106; Wheaton, Int. Law (5th ed., 1918),

be regarded as organs for the protection of the rights of neutrals and it was this motive which led to the attempt in 1907 to establish an international Prize Court. The conception that the purpose of Prize Courts is not so much, however, the protection of neutrals as to insure the observance by the naval forces of national prize regulations and instructions still dominates Continental European juristic thought-and especially that of Germany. This view was emphasized by the German Supreme Prize Court in the case of the Batavier V2 where after declaring that Prize Courts are national tribunals it asserted that "they are established by their state to determine whether the legal instructions to which the naval authorities should conform are observed or not." In Anglo-American countries, however, the rôle of the Prize Court as "a trustee for persons who are found ultimately to be entitled to captured property" receives greater emphasis. It ought to be equally the function of a Prize Court to safeguard the lawful rights and interests of neutrals against belligerent excesses as well as to enforce the observance by overzealous naval commanders of the instructions which they receive from their Sovereign, for as Judge Cator justly observed in the case of the Marquis Bacquehem 3 "A Prize Court is peculiarly the guardian of its nation's honor, and foreign countries will cite its decisions as indicating the temper of its people." "It is not the function of a Prize Court," said Lord Sumner in a famous case, in answer to the argument that Germany by her general misconduct had forfeited her right to the benefit of a particular Hague Convention, "to be a censor of the general conduct of a belligerent, apart from his dealings in the particular matters, which come before the Court, or to sanction disregard of solemn obligations by one belligerent, because it reprehends the whole behavior of the other." The spirit which

p. 608, and Holland, Letters on War and Neutrality (2d ed., 1914), p. 171. Dupuis (Le Droit de la Guerre Maritime, p. 400) remarks that according to English doctrine it is the neutral interest alone that renders prize adjudication necessary. Compare also the remarks of Lord Parker in the case of the Zamora (II Br. & Col. Pr. Cas. at p. 12).

1

Compare Bonfils, Manuel de Droit Int. Pub., 6th ed., p. 851, and the authorities there cited, and Dana, Notes to Wheaton, p. 480.

Fauchille et De Visscher, Jurispr. All, 90. To the same effect see the Zaanstroom I Entscheidungen des Oberprisengerichts in Berlin, 118 (hereafter cited as Entsch.) and Fauchille et De Visscher, Jurisprudence Allemande en Matière de Prises Maritimes, 97 (hereafter cited Jurispr. All.). I Br. & Col. Pr. Cas. at p. 134.

The Blonde, Hercules and Prosper, X Lloyd 246; III Br. & Col. Pr. Cas. at p. 1045. Compare in this connection the remarks of Lord Sumner in the Deutsche Kohlen Depôt case (VIII Lloyd at p. 152) to the effect that "a Prize Court is not warranted in creating a penalty where the [Suez

should guide every Prize Court was expressed by Sir Henry Duke when, adverting to the general rule under which the carriage of contraband forfeits the right to freight, he said: "but there is a higher rule than that, and it is, that the Court shall do justice." 1

Sec. 4. Nature of Prize Courts. Are Prize Courts national or international tribunals? As is well known, Sir William Scott in his day affirmed that the British Prize Court, although sitting under the authority of the King of Great Britain, was "a court of the law of nations"; that it was charged with administering the law of nations and that although the seat of its authority was local it was the duty of a British Court to decide questions submitted to it as it would decide them if it were sitting at Stockholm. Sir William Scott of course did not mean to imply that a Prize Court is a court of the law of nations in the sense that it is established and organized by international agreement; on the contrary, he expressly affirmed that the British Prize Court sat under the authority of the King of Great Britain; that is, it was a national rather than an international court from the point of view of its organization and source of authority. It was an international tribunal only in the sense that it was charged with applying international law and of administering justice between nations; in short, it was international in its misson, but national in organization. This was the view taken by the British Prize Courts during the late war. Thus Judge Grain of the Prize Court for Egypt admitted in the case of the Bärenfels that the Canal] Convention creates none, or in declaring a seizure to be bad because in no other form could it effectively create a penalty at all."

3

4

The Prins der Nederlanden, VI Lloyd 181; III Br. & Col. Pr. Cas. at p. 701.

The Maria, 1 C Rob. 350. Compare also his opinions in the Recovery, 6 ibid. 348; the Walsingham Packet, 2 ibid. 77, and the Fox, Edwards Adm. Rep. 312. Dr. Lushington in the case of the Franciska (Spinks 111; 2 Eng. P. C. 346) referred to the Prize Court as being "not a municipal court but a court for the administration of public law." The following authorities apparently consider Prize Courts to be international tribunals, at least in some sense : Halleck, Int. Law, II, p. 111; Maine, Int. Law, p. 96; Hall, Int. Law, p. 277, and Phillimore, Int. Law, 3d ed., III, pt. 11, ch. 1. Pitt Cobbett (cases II, 192) states that they are national courts only in the sense that they are established and regulated by the sovereign authority of the country in which they sit, and from which they must ultimately take the law which they apply even though that law may not conform to the law of nations. Baty and Morgan (War, Its Conduct and Legal Results, p. 362) say "a Prize Court resembles, as Dr. T. A. Walker remarks (Science of Int. Law, p. 46), a divisional court sitting in a particular country, of a great international tribunal."

3

Compare in this sense De Boeck, op. cit., p. 349; Fauchille, op. cit., p. 579; Dupuis, Le Droit de la Guerre Maritime, Sec. 221; Oppenheim, op. cit., 3d ed., Vol. II, p. 626; Holland, Letters on War and Neutrality, 2nd ed., p. 171; Westlake, Int. Law, 2nd ed., pt. II, pp. 155, 317; and Pyke, 32 Law Qu. Review, p. 148. 'I Br. & Col. Pr. Cas. at p. 129.

Prize Court was an international tribunal in the sense that by the Order in Council and the commission appointing him to sit in prize charged him "to hear and determine according to the law of nations" and he asserted that he was not sitting "solely for the purpose of administering the municipal law of this land." But there was nothing in his opinion to indicate that he considered the Prize Court to be an international organ in the sense that its jurisdiction was derived from any other source than that of the sovereign authority by which it was constituted. "It must be remembered," said Lord Parker in the case of the Roumanian 1 "that the jurisdiction of the Prize Court is based in every case upon a Commission under the Great Seal." In the case of the Zamora his Lordship said: "Of course the Prize Court is a municipal court, and its decrees and orders owe their validity to municipal law. . . a Court which administers municipal law is bound by and gives effect to the law as laid down by the sovereign state which calls it into being." Both the German and French Prize Courts emphasized that they were national tribunals and as such were bound to apply national law even when it was not in conformity with international law.3

1

II

ORGANIZATION

Sec. 5. Practice as to Number During World War. Prize Courts being municipal rather than international organs their constitution and organization are matters which are determined entirely by the legislative or executive authorities of the states in which they exercise their functions. In consequence, one finds marked differences in the constitution of those which were set up in the different countries during the late war, although there were certain features common to all of them. Thus in all the countries the prize jurisdiction was organized in two instances: a tribunal of first instance and a tribunal of appeal. The number of tribunals of first instance varied. In Austria-Hungary, China, France, Belgium, Italy, Japan, Portugal,* Roumania and Siam only one 1II Lloyd, 378; I Br. & Col. Pr. Cas. at p. 546. IV ibid., 62; II ibid., at p. 12.

See Sec. 133 infra.

4 By the decree-law of April 20, 1916, jurisdiction to conduct preparatory examinations in prize cases, however, was conferred on all the commercial tribunals of Portugal, but the right to pronounce definitive judgments was reserved to that of Lisbon.