ants refused to obey an order of the Court for the discovery of documents; 1 because the appellants were not at the time of seizure the owners of the goods; 2 because the question involved was one merely of fact and not of law; etc.

3

The Kronprinsessan Margareta, VI Lloyd 105 (note); the Antilla and other Vessels, VII Lloyd 405.

The Kronprinzessin Cecile (VIII Lloyd 125). In this case the Judicial Committee also held that an application for amendment could not be entertained nor could an error in the order of the Prize Court be corrected, at the instance of appellants who had no interest which entitled them to be heard.

The Atahualpa, July 17, 1916 (unreported).

CHAPTER IV

LAW APPLIED BY THE PRIZE COURTS

I

INTERNATIONAL CONVENTIONS

Sec. 103. Questions Raised. In deciding the cases that came before them the Prize Courts sometimes had to apply (and frequently to interpret) multilateral international conventions, occasionally bilateral treaties, often the customary law of nations and not infrequently the prescriptions of national prize regulations or legislative acts of the countries in which they sat. Sometimes where the provisions of international conventions furnished a controlling rule or principle it was necessary to decide the preliminary question whether the particular conventions had been duly ratified in accordance with their own stipulations and were therefore actually in force and binding on the Court. Likewise, it was necessary at times to decide whether in case a convention was found to be in force by reason of its ratification, it was binding, when it was established that the opposing belligerent had refused to observe its prescriptions, that is, whether the validity of the convention was conditional upon reciprocity of observance by the party invoking its benefit. Again, where a national prize regulation or legislative act provided a rule which differed from the rule of the customary law of nations, the Prize Court had to determine which of the two was binding upon it and which should therefore be applied. The question of the weight which should be given to judicial precedents and to the opinions. of eminent text writers was also one which occupied the attention, particularly of the British Prize Courts. Finally they were sometimes called upon in this connection to determine whether they were justified in taking into account changed conditions and circumstances which had come about subsequent to the pronouncement of earlier decisions and therefore of departing from the rules laid down by former Prize Courts. when strict adher

ence to them would lead to hardship and inequity. In deciding these and other questions the Prize Courts of different countries not infrequently traveled different roads and sometimes reached different conclusions.

Sec. 104. State of Maritime Prize Law in 1914. The Declaration of Paris. The outbreak of the world war found the law of maritime prize in a far less developed state than that of land warfare. As has been observed, there was "not any single law of nations binding upon the Prize Courts, but a number of different practices, each claiming to be the true doctrine, and each administered by national courts." Sir Edward Fry remarked at the Second Hague Peace Conference that prize law was "not much more than a chaos of opinions which are often contradictory, and of decisions of national courts based upon national laws." 2

1

In these circumstances, as the Judicial Committee said in the case of the Zamora, the Prize Court had itself "to determine what the law is to the best of its ability." The international conventions in force relating to maritime prize law were few and relatively unimportant, and as to some of these there was doubt as to whether they were technically, at least, in force during the war and therefore binding on the Prize Courts.

In the first place, there was the Declaration of Paris of 1856 which had become by formal accession or tacit acceptance by all the powers an established part of the general body of international law. But occupying only a half dozen lines of print and limited to the briefest statement of a few general principles regarding the immunity of goods from capture and as to what

1 Bentwich, The Declaration of London, p. 3.

'A number of continental countries had, or promulgated shortly after the outbreak of the war, "codes" of prize law, in the form of ordinances, regulations, instructions, etc. Such were the German Prisenordnung of Sept. 30, 1909, and the Prisengerichtsordnung of April 15, 1911; the French Instructions of Dec. 19, 1912 (revised 1916); the Italian Rules for the Exercise of the Right of Capture, March 25, 1917 (text in Fauchille et Basdevant, Jurispr. Ital., Annexe, pp. xlv ff.), and the Merchant Marine Code of Oct. 24, 1877; the Austrian Regulations (Dienstbuch), promulgated May 2, 1913 (Eng. trans. in Procs. Orders in Council and Docs. Relating to the European War Compiled and Published by the Sec. of State of Canada, 1916, 2d Supp., pp. 425 ff.); the Russian Prize Regulations of March 27, 1915, in force during the World War (French trans. 4 Rev. Gén, de Droit Int. Pub., 1897, Docs., pp. 6 ff.); the Belgian Loi organique du Conseil des prises, Aug. 26, 1919 (Moniteur Belge, Sept. 1-2, 1919), to which may be added the Chinese Regulations Governing the Capture at Sea, 1917 (Eng. trans. in Cheng, Judgments of the High Prize Court of the Republic of China, pp. 136 ff.), and the Siamese decree of July 20, 1907 (Eng. trans. in London Gazette, Sept. 18, 1917). As to these national regulations see my Int. Law and the World War, Vol. I, pp. 9 ff., and the valuable notes of Verzijl, op. cit., Annexe II, pp. 1357 ff.

constitutes a lawful blockade it laid down no tests to be applied in determining enemy character, or as to what constitutes contraband, or what rules shall be adopted in determining its liability to capture. Various matters in respect to blockade, which have since become a frequent subject of controversy were left untouched by the Declaration.1

Sec. 105. The Same. The Hague Conventions. The first Hague Conference did not occupy itself at all with the subject of maritime war and while the program of the Second Conference apparently contemplated the formulation of a maritime "code" to supplement the regulations concerning land warfare, the actual achievements were disappointing. A number of conventions were formulated and some of them were generally ratified but they were not comprehensive and they have been characterized as being "more remarkable for what they omitted than for what they settled" and that "in many cases where they professed to establish a rule, its value was whittled away by its vague statement." 2 Among these conventions were those relative to the treatment of enemy merchant vessels in port at the outbreak of war, the conversion of merchant ships into war vessels, the adaptation to maritime warfare of the principles of the Geneva Convention, naval bombardments, certain restrictions upon the right of capture in naval warfare and the rights and duties of neutral powers in naval warfare. Some of them left unsettled important questions concerning the matters with which they dealt and none of them pretended to deal with the important subjects of blockade, contraband, visit and search, destruction of prizes, transfers of flag and unneutral service. In the final act of the conference the voeu was expressed that "the preparation of regulations relative to the laws and customs of naval war should figure on the program of the next conference and that in any case the powers might apply, as far as possible, to sea warfare, the principles of the convention relative to the laws and customs of war on land."

Sec. 106. The Same. The Declaration of London. The third conference has never been called but the preparation of the

'Lord Sumner in the case of the Kronprinsessan Margareta and Other Vessels (VII Lloyd 241; III Br. & Col. Pr. Cas. 803), adverting to the non-comprehensiveness of the Declaration observed: "It says nothing about the criteria by which the enemy or neutral character of goods is to be determined; it says nothing about the doctrine of 'infection'; it says nothing about admissibility or rules of evidence; it says nothing of the rights of a belligerent to repress traffic in contraband of war, or of the modes by which Courts of Prize give effect to and protect those rights."

Bentwich, op. cit., p. 1.

regulations recommended by the second conference was in part attempted by the international naval conference at London in 1908-09 and the results were embodied in an international Act known as the Declaration of London, which, however, had not been ratified by any of the powers at the time of the outbreak of the war.1 Since, however, many of the rules embodied in the Declaration were merely declaratory of the preexisting customary law and practice-it was in fact stated in the preamble that "the signatories are agreed that the rules contained in the following chapters correspond in substance with the generally recognized principles of international law"-they were, as such, binding upon the belligerents and their Prize Courts, equally with other rules of customary international law, without regard to the status of the Declaration in which they were embodied. Such of its rules, however, as constituted innovations upon or departures from the customary law-and the Prize Courts held that some of its rules were of this character, notwithstanding the contrary assertion in the preamble-were not binding upon the Prize Courts.

The provisions of the Declaration had, in the main, already been embodied in the prize regulations of a number of countries before the outbreak of the war and were incorporated in those of other countries, subsequent thereto. Upon the outbreak of the war the Declaration, notwithstanding its non-ratification, was put into effect by decrees or orders of various belligerent governments, usually with alterations or additions, although Great Britain and France subsequently revoked their orders and decrees and announced that henceforth they would not be bound by the Declaration but would exercise their belligerent rights at sea in strict accordance with the "law of nations." 2 The attitude of the Prize Courts toward the Declaration varied therefore with the successive changes of policy adopted by their governments in respect to the Declaration. In the sections immediately following, their attitude toward the various international conventions will be examined in turn.

Sec. 107. Application by Prize Courts of Declaration of Paris. All the Prize Courts which were called upon to decide questions involving the application of the Declaration of Paris

As to the efforts of the American government at the outbreak of the war to induce the belligerent maritime powers to agree to observe the Declaration notwithstanding its non-ratification, see the correspondence in Spec. Supp. to Amer. Jour. of Int. Law, Vol. IX, pp. 1 ff.

As to the attitude of the various belligerent governments toward the Declaration, see my Int. Law and the World War, Vol. I, pp. 29 ff.