the article, they argued, must be applied in the sense attached to it by its authors. The appeal was rejected and the condemnation of the vessel sustained on the ground that the terms of article 45 were "clear and precise" and could not be invalidated by recourse to "any other document." 1 Whether in case there had been doubt in the opinion of the Council of State as to the meaning of the article it would have had recourse to the interpretation of the authors of the general Report, cannot be determined. It is quite certain that the British and German Prize Courts would have done so. The Council of State proceeded on the principle laid down in other cases that the Declaration was for France a unilateral act the interpretation of which belonged solely to the Prize Courts.

II

APPLICATION OF PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW

Sec. 116. British Doctrine of Precedents. It is an elementary principle of English prize law that a Prize Court is bound by its own previous decisions, unless there has been a change in international law to which Great Britain has given her assent, expressly or tacitly, or unless deviation from the precedents is necessary to adapt established principles to altered circumstances and conditions. In the absence of binding decisions or positive municipal enactments the Court must revert to the general practice and opinions of nations as evidenced in unilateral acts, declarations of statesmen, treaties, decisions of foreign courts, opinions of text writers, etc. And unlike the practice of the common law courts where the existence of a rule of international law and the fact of its acceptance by England must be proved by satisfactory evidence as though it were a rule of foreign law, a Prize Court will take judicial notice of a rule of international law, as the common law of the Court, in the absence of positive evidence.

1 See infra Secs. 445, 449.

But in the case of the Dacia (infra Secs. 313, 314), the French Prize Court relied in part upon the Report as ground for condemnation of the vessel.

The Henrick & Maria, 4 C. Rob. 61, 63 (1799). The Roland (II Lloyd 253), the Odessa (I Br. & Col. Pr. Cas. 559), the Berlin (I, ibid., 36), Pyke, 32 Law Qu. Review, pp. 164, 166; Westlake, Collected Papers, p. 516.

In their search for guiding principles the British Prize Courts rely, first of all, upon judicial precedents, that is, upon the reported cases in which the question at issue has previously been considered and in which an opinion has been expressed or a judgment pronounced. Cases were not lacking during the late war where, when no reported decision covering the particular point at issue could be found, a search of the public record office was made for decided cases which had not been reported and published in the collections of prize cases, and sometimes the search was successful and the court was able to base its decision upon precedent. When a decision is found and is shown to have clearly pronounced on the question at issue it is generally regarded as conclusive and is followed by the Prize Court even when the conditions of the time when it was rendered were wholly different from those prevailing when the Court was later called upon to follow it. This reliance upon the precedents, and especially upon the decisions of Lord Stowell, distinguished the attitude and policy of the British Prize Courts from those of other countries.3

4

Sec. 117. Views of the British Prize Courts. In consequence of the many new and novel questions which came before the Prize Courts during the late war and the changed conditions under which the law of prize had to be applied exact precedents were naturally sometimes lacking and there were no conventional rules applicable, in which case the Court had recourse to the views of the authorities on the principles of equity. Thus in

As stated above, the Prize Courts are of course bound by the decisions of the Judicial Committee (The Parchim, IV Lloyd 375), and in cases where their Lordships overruled the Prize Court the latter conformed its subsequent decisions to the view of the court of appeal. (The Alwina, V Lloyd 127 and the Hakan, V, ibid., 161.) But one British Prize Court is not bound by the decisions of another (The Batavier II and Batavier VI, VI Lloyd 392, and the Caboto and the Dandolo, II Br. & Col. Pr. Cas. 339). The Judicial Committee treated its earlier decisions as binding upon it (The Düsseldorf, IX Lloyd 12) and very rarely departed from them. In the case of the Elve and the Bernisse (1919) (IX Lloyd 243), however, it disapproved the decision of their Lordships in the Luna (1810).

2 Among others, see the Abonema and Other Vessels, VIII Lloyd 284.

As to the influence of Lord Stowell's decisions upon the British Prize Courts during the late war see Roscoe, Lord Stowell, His Life and the Development of English Prize Law (1916), ch. VII. When Lord Stowell became judge of the Prize Court there was no ascertainable body of prize law in England. It consisted mainly of a "mixture of meager and fragmentary reports and professional tradition and of judicial opinion." As a result of bis genius England alone of the European powers at the end of the Napoleonic wars possessed a "clear code of prize law binding henceforth upon the successors of this eminent jurist." Roscoe, Growth of English Law, pp. 134-6.

4

Compare as to this the remarks of Sir John Simon in the case of the Chile (I Br. & Col. Pr. Cas., pp. 3 ff.).

1

the case of the Juno 1 Sir Samuel Evans remarked: "As regards freight under such circumstances there is no case in the books and the question appears to be as to what is equitable." But the Prize Court refused to be guided by considerations of "heavy loss" when the rule of law did not warrant it.2

3

4

In the case of the Düsseldorf the Judicial Committee discussing the question as to whether a neutral government was entitled to damages on account of a seizure in its territorial waters through bona fide mistake, remarked that it was bound "to act judicially, and to follow legal principles and the decisions already given in prize cases," but it was obliged to confess that "the authorities prior in date to the recent war are few in number and somewhat indeterminate." So in the case of the Heim + Lord Sterndale had to say "There is no case, so far as I am aware, in which a claim for damages and demurrage has been allowed as a charge against the goods." In the case of the Proton Judge Cator of the Prize Court for Egypt said: "it may be that the books yield no precedent which is exactly in point, but I am satisfied that the decision is warranted by the principles to be extracted from a long line of authority and it is certainly in harmony with the rules agreed upon by the parties who signed the Declaration of London."

5

In the case of the Gothland Sir Samuel Evans referring to a "new point" made by counsel in support of a claim by the insurers, said: "There is no precedent for such a claim." In the case of the Rio Janeiro which involved a claim by certain shipowners for damages due to the diversion of the ship, Lord Sterndale was evidently embarrassed by a decision of his predecessor, Sir Samuel Evans, in the case of the Gorontalo 8 where damages of this kind had been allowed and which decision according to English practice was binding upon him. Nevertheless, he found that the circumstances of the two cases were not exactly identical, so that he was able to disallow the claim without abandoning the rule of stare decisis. In the case of the Leonora and other vessels Sir Samuel Evans, asking himself whether there were "any precedents or decisions or any authority apart from actual decision or precedent, in support of or against

9

1 I Lloyd 177; 1 Br. & Col. Pr. Cas. 156.
The Panariellos (IV Lloyd 306).

IX Lloyd 12; III Br. & Col. Pr. Cas. 670.
VIII, ibid., 484; III, ibid., 463.

V Lloyd 44; II Br. & Col. Pr. Cas. 293.
VIII, ibid., 330; III, ibid., 464.

• VII, ibid., 307; III, ibid., 181.

II Br. & Col. Pr. Cas. at p. 121.

See Sec. 259 infra.

the Order in Council," thus answered the question: "There is no decision against it." Apparently the absence of a decision against the validity of an Order in Council whose validity was attacked created a presumption at least that it was valid.

1

But while reported decisions constituted conclusive authority, the lack of decisions supporting a claim for condemnation could not be relied upon by the owners of goods to support a claim for their release. Thus in the case of the Roumanian 1 where the appellants relied on the dearth of reported cases in which enemy goods on British ships at the commencement of hostilities had been condemned as prize (in fact there was no case whatever), Lord Parker observed:

"With regard to the dearth of reported decisions, it is to be observed that the plainer a proposition of law the more difficult it sometimes is to find a decision actually in point. Counsel are not in the habit of advancing arguments which they think untenable, nor, as a general rule, do cases in which no point of law is raised and decided find their way into law reports. If, on the one hand, it be difficult to find a case in which enemy goods on British ships at the commencement of hostilities have been condemned as prize, it is, on the other hand, quite certain that no case can be found in which such goods have been held immune from seizure."

On the contrary, such decisions as there were, bearing upon the point, did not, he said, support the appellants' contentions, but rather contradicted them.

So great is the respect shown by a British Prize Court for the opinions of its earlier judges that even the dicta of the latter in certain circumstances will be cited and relied upon in support of the conclusions reached. Thus in the case of the Oscar II 2 where the question at issue was whether the Crown was liable for damages for the loss of innocent goods, resulting from the negligence of the naval authorities, Lord Sterndale remarked that it was a very important question the determination of which would require time for consideration, but for the fact that in his opinion it had already been decided in the case of the Zamora; at least there were dicta, in the opinion of Lord Parker, who gave the judgment in that case, which were applicable in the

'II Lloyd 378; I Br. & Col. Pr. Cas. 536. Sir Samuel Evans evidently sometimes entertained serious doubt as to the validity of the reasons upon which former decisions were based; indeed, he sometimes almost admitted that they were not sound, but in such cases he would say, "I accept the law as it stands." See Sec. 9, his opinion in the Maningtry (II Lloyd 202). 'IX, ibid., 267; III, ibid., 421.

present case. As to the kinds of dicta and the weight to be given them, Lord Sterndale said:

"What was said in the Zamora-the words I am going to refer to in a minute may perhaps be said to be dicta; but it seems to me that there are two kinds of dicta; one is a dictum which is uttered, if I may say so, casually without the words being really under the consideration of the person who is delivering his judgment; another is a dictum which is the considered judgment, and part of the process of reasoning, of the person who is delivering his judgment; and if I find a dictum of that second kind by the Privy Council, in my opinion it is my duty to follow it."

Sec. 118. Foreign Decisions as Authority. The British Prize Courts frequently invoked the decisions of foreign courts, especially those of the United States, sometimes those of the Japanese Prize Court during the Russo-Japanese war and occasionally French prize jurisprudence. In the case of the Zamora, where Sir Samuel Evans was discussing the sale of goods by interlocutory orders before condemnation he cited a list of cases on the subject decided by the American courts which he said "next possibly to our own have done most for the elucidation and development of the law of nations applicable to the law of prize." 1

In the case of the Marie Glaeser Sir Samuel invoked the authority of American, Japanese, and French decisions relative. to the claims of neutral mortgagees of captured enemy ships and in the case of the Roumanian he cited and quoted from various American and Japanese decisions in support of his conclusion that the cargo of a ship seized in a warehouse in port was within the jurisdiction of the Prize Court. In the case of the Berlin he referred to the judgment of Mr. Justice Gray of the United States Supreme Court in the case of the Paquête Habana as "full of research, learning and historical interest" and added that it would be "a work of supererogation" for him to review again the practice of other countries in respect to the exemption of fishing vessels from capture. In the same case he quoted from several decisions of the Japanese Prize Court (1905). In the case of the Ophelia Lord Mersey cited the authority of the Supreme Court of the United States on the effect of "spoliation of papers"; in the case of the Kim both court and counsel relied upon the decisions of the United States Supreme Court during the Civil War, dealing with the subject of continuous voyage, and reference was

In the case of the Odessa and the Cape Corso (II Lloyd 405) the Judicial Committee stated that "a considered judgment of the United States Supreme Court was entitled to the greatest possible weight."