But in the case of the Hamm and Apolda1 the South African court refused an application for an order directing the sale of certain goods upon their arrival in Australia, for the reason that in the opinion of the court it had no power to enforce its orders. outside its own territorial jurisdiction. Counsel argued that the Prize Court rules being the same throughout the Empire, there was no reason for assuming that The Court's order would not be enforced by the Australian authorities. The case of the Cumberland2 (decided Jan. 18, 1915, by Sir Samuel Evans) was relied upon in support of the view that the aid of the Australian Prize Courts might be invoked to carry out the order, since the res was still within the jurisdiction of the Court. In denying the application judge Juta said:

"I do not see how any order which this court can make can have any authority in Australia, or that there is any power either to see that it is carried out: and no court makes orders which it has no power to enforce. If we make an order in regard to the sale of goods in Australia, as asked for, there is no possible means of compelling those orders to be carried out. Therefore, we do not think we can make any such order as is asked for. Mr. Struben has quoted the case of the Cumberland, but that referred only to removal from one place in the United Kingdom to another place in the United Kingdom, and, therefore, it does not apply here, where we are asked to deal with goods when no longer in our jurisdiction."

Sec. 17. Conflict Between British Prize Courts. A conflict of jurisdiction between two British Prize Courts was afforded by the case of the Leonor. A motion having been made

by the Crown in the Prize Court of British Columbia that certain proceedings be transferred to the Prize Court at London, the motion was adjourned to enable counsel for the Crown to make an election within a few days respecting the filing of further evidence. During the adjournment the Crown made an identical application to the president of the Prize Court at Ottawa three thousand miles distant, and the order applied for was issued. The judge of the British Columbia court on learning the facts was highly indignant, treated the order issued by the Ottawa judge as of no validity, on the ground that he had no jurisdiction, and wrote a long opinion in which he denounced the conduct of his Ottawa colleague as an intrusion, an act of

usurpation and an attempt to interfere with the lawful authority of a brother judge of coördinate jurisdiction.

Sec. 18. Jurisdiction in Case of Joint Captures. In a war such as the late conflict was, in which the fleets of various allied powers coöperated in the prosecution of common naval operations and where, in consequence, captures were sometimes made by the joint naval forces of two or more powers, an understanding was necessary as to the particular Prize Court which should have jurisdiction. Furthermore it might happen that where a ship flying the flag of one of the allied powers was captured by a war vessel of the other, a difference of opinion would arise as to the true nationality of the captured vessel. An agreement on these points was embodied in a convention between. Great Britain and France of November 9, 1914, to which Russia and Italy subsequently adhered.1 The convention provided that in principle the jurisdiction over enemy or neutral prizes belonged to the Prize Court of the captor without regard to whether he was under the orders of the naval authorities of one or the other of the allied powers. Departure from this rule, however, might be made under exceptional circumstances by a special agreement between the parties interested. In the case of the capture of a merchant vessel of one of the allied powers, jurisdiction should belong always to the Prize Court of the country of the captured ship, the cargo in such a case, following as regards jurisdiction, the fate of the ship.3 In the case of a capture made by the joint naval forces of two or more allied powers, the jurisdiction should be that of the country whose flag is borne by the superior officer in command during the action.*

1Text in 22 Rev. Gén. de Droit Int. Pub. (1915), Docs. pp. 35 ff. and in Fauchille, La Guerre de 1914, t. I, p. 112.

"The Pao-Hing-Lie (Fauchille, Jurispr. Franc. 438) was an example of such a case.

This provision was interpreted by the French Prize Council in the case of the Narrovian (Fauchille, Jurispr. Franc. 68) from which it appears that subsequent to the conclusion of the Convention there had been an exchange of notes between the British and French governments to the effect that where the vessel was released, the Prize Court of the country whose authorities had seized the cargo, should have jurisdiction over the cargo.

A case of this kind was afforded by the capture of the C. Ferd. Laesz by a French cruiser which was acting under the order of an English commander. Fauchille, Jurispr. Franc. 202. There were a good many other cases of joint capture, especially by the British and French forces, which were the subject of prize adjudication. See among others the cases of the Cydnus (Fauchille, Jurispr. Franc. 176), the Seyhoun (ibid., 174), the Kaced Kerim (ibid., 240), the Maria (ibid., 205), etc. Prior to the adherence of Italy to the Convention referred to above, the Italian Prize Commission was called upon to judge the validity of a number of captures made by French torpedo boats which had been placed at the disposition of the Italian forces to cooperate with them in the maintenance of the blockade

Sec. 19. Tribunals of Appeal. Great Britain. In all the belligerent countries in which prize tribunals were set up during the late war provision was made for a tribunal of appeal.1 In Great Britain this tribunal is the Judicial Committee of the Privy Council, which consists of a small body of law lords, most of whom hold or have held high judicial office in the Kingdom or in the dominions.2 Curiously enough its decisions take the form not of judgments but of "humble advice" to the King as to what ought to be done, that is, whether the decision of the Prize Court should be affirmed, modified or annulled, with a full statement of the reasons on which its conclusions are based. They amount in effect, however, to judgments since its "advice" is never in fact disregarded and indeed it may be doubted whether under the existing constitutional system it could be disregarded.3 Originally an executive body in large measure, and lacking independence in the exercise of prize jurisdiction, it has steadily developed into a judicial tribunal with power to hear appeals and render what amounts to judgments in prize matters exactly as it does in the case of admiralty appeals and appeals from the highest courts in the Colonies, in India and in the Dominions.*

In France appeals may be taken from the decisions of the Prize Council to the Council of State sitting in general administrative assembly (not as a conseil du contentieux), which acts upon the report of its section on legislation, justice and of foreign affairs. In legal theory the appeal is to the President of the Republic to whom belongs the right of final decision. The decision of the Council of State is merely an avis, a recommendation, and of the Adriatic Sea. See, among others, the cases of the Aghios Spiridon (Fauchille et Basdevant, Jurispr. Ital., 4), the Aghia Elene (ibid. 17), the Posseidon (ibid., 21) and the Aghios Caralambos (ibid., 11). By an agreement of June 1, 1916, between Great Britain and France it was provided that a part of the goods going to or coming from Germany, as well as contraband generally, found in neutral mails and seized in pursuance of the Order in Council of March 11, 1915, should be sent to France for examination and for condemnation or detention, as French law might provide. the cases cited by Verzijl, op. cit., p. 312.

See

The legislation of Greece alone, among the belligerents in the late war, appears to have made no provision for an appellate jurisdiction in matters of prize, but since no prize courts appear to have been constituted in that country during the World War the statement made above that in the countries where prize tribunals were actually established provision was made for appeals remains true. See also the qualification as to Italy infra, Sec. 21.

Lowell, The Government of England, II, 467. From three to five Lords participated in the hearing of the cases appealed to the Committee during the late war. The opinions were most frequently delivered by Lords Parker or Sumner, and less frequently by Lords Mersey and Parmoor and Sir Arthur Channell.

Compare Phillimore, Int. Law, III, 664.

4 Roscoe, History of the English Prize Court, pp. 91-93.

not an arrêt or judgment and it takes the form of a decree promulgated by the President of the Republic. It is therefore analogous to the "advice" of the Judicial Committee of the British Privy Council in prize procedure. The reason for this is found in considerations of diplomatic or public policy. The Prize Council may be obliged to condemn a prize because the law so requires, but its confiscation may not be expedient for reasons of public policy, in which case the President of the Republic may, on appeal, decree the release of the prize. The Council of State, it may be observed, may, unlike the Prize Council, base its decisions upon considerations of expediency rather than of law.1

Sec. 20. The Same. Germany and Austria-Hungary. The German Superior Prize Court (Oberprisengericht) was composed of seven judges, of whom the president and two other members. were required to be learned in the law, one a naval officer, one a representative of the ministry of foreign affairs, one a representative of the shipbuilding industry and one a representative of maritime commerce.2 Unlike the English Judicial Committee and the French Council of State it is an ad hoc tribunal which is only brought into existence at the outbreak of war.

The Austro-Hungarian Prize Court of appeal (Oberprisengericht) during the late war was composed of a flag officer of higher rank who acted as president, two high officers of the judicial service of the marine, a legal representative of the ministry of foreign affairs, and two persons designated by the Austrian and the Hungarian ministries of commerce."

Sec. 21. The Same. Other Countries. In Belgium the court of appeal at Brussels was designated to serve as the tribunal of appeal in prize cases. In China a "high Prize Court" was established at Peking to hear appeals from the district Prize Court at Shanghai. It was composed of a president and eight judges to which were attached two procurators and two registrars. To serve as members of the high Prize Court there were designated three judges of the supreme court of the Republic, two officers of the navy, one councillor of the ministry of

1 Worms, article cited p. 102.

Prisengerichtsordnung, Sec. 6. See also Huberich, “German Prize Law," 59 Solicitors' Journal and Weekly Reporter, p. 70; and Huberich and King, 18 Columbia Law Review, 503.

Prisengerichtsordnung, Sec. 3. See also Huberich, "The Austro-Hungarian Prize Courts, 59 Solicitors' Journal and Weekly Reporter, p. 438.

Loi organique du Conseil des Prises, Aug. 26, 1919, modified by the law of Aug. 17, 1920 (Art. 23).

the navy, one of the ministry of foreign affairs and one representative of the legislative bureau.1

The Italian decree of May 30, 1915 (Art. 10) constituting the Prize Commission 2 declared that the decisions of the commission were not to be the subject of appeal, opposition or annullment and that they could only be submitted by way of recourse to the Court of Cassation at Rome in accordance with the terms of Article 3 of the merchant marine law of March 31, 1877. So far, therefore, as appeals were allowed at all the Court of Cassation was the tribunal to which they were taken.

In Japan a "higher Prize Court" to hear appeals from the lower Prize Court at Sasebo was provided for by a decree of September 11, 1914. It was to be composed of a president (who was required to be a privy councilor) and eight councilors, one of whom had to be a privy councilor, two naval officers, three judges of the Court of Cassation, one director of the legislative bureau and one director of the bureau of political affairs of the foreign office.3

In Portugal the supreme tribunal of justice served as the court of appeals in prize cases. In Roumania a superior court of prize composed of seven members and including various functionaries, naval officers and representatives of the commercial interests was constituted by a decree of September 18, 1917. The Russian supreme Prize Court was formed by the adjunction to the council of admiralty of two senators and a representative of the ministry of foreign affairs.

In Siam appeals from the decisions of the Prize Court were allowed to the Judicial Committee of the Privy Council (the "Dika Court") but its decisions required the approval of the King to be valid.5

Sec. 22. Differences of Organization. The above outline of the organization of the prize jurisdiction in those countries in which prize tribunals were set up during the late war, reveals

1 Prize Court Rules of 1917, Secs. 5 and 6. Text in Cheng, Judgments of the High Prize Court of the Republic of China, p. 125. List of the judges ibid., pp. 1-2.

French Text in Fauchille and Basdevant, Jurisprudence Italienne, App. p. V.

Imperial decree of Aug. 20, 1894, modified by decrees of March 7, 1904, February, 1905, and Sept. 11, 1914 (Art. 3). It appears however, from the decision in the case of the Zuimo, the only Japanese case heard upon appeal during the World War, that the court of appeal was actually composed of eleven judges.

Decree-law of Aug. 14, 1916 (Art. 5).

Decree of July 20, 1917 (Art. 6). See also Verzijl Le Droit des Prises de la Grande Guerre, p. 16.