guage of the preamble made it clear, they said, that the purpose of the Convention was the protection of operations of a commercial character, and the immunity therefore covered only vessels which were employed in such operations. Aside from the Convention, there was no principle of prize law which exempted racing yachts from the ordinary rule that enemy property seized in port at the outbreak of war, is liable to confiscation and condemnation. The decision has been criticized as unduly strict and technical and there is some ground for the view that the authors of the Convention did not intend to exclude from its benefits any vessels except warships; in short, the category of navires de commerce was meant to include all vessels except les bâtiments de guerre.1 2 Sec. 206. The Same. View of the French Prize Council. The French Prize Council in the case of the Tolna, which involved the status of an Austrian pleasure yacht seized in a French port at the outbreak of war, adopted the view of the English Prize Court that the expression navires de commerce as used in the Sixth Hague Convention could not, especially in view of the interpretative explanation contained in a letter of the minister of marine, be construed to embrace pleasure yachts such as the Tolna. The immunity contemplated by the Convention, said the Prize Commission, was an exceptional disposition and must be strictly interpreted. It applied only to "ships of commerce" found in enemy ports at the outbreak of hostilities. The Tolna was not therefore entitled to days of grace and must be confiscated. Sec. 207. The Same. View of the German Prize Court. The question as to whether a pleasure yacht was a "merchant vessel" in the sense of the German prize ordinance was passed upon by the Supreme Prize Court of Germany in the case of the Primavera, a Belgian sailing yacht which was captured by the Germans in the port of Antwerp upon their occupation of that city in October, 1914. The yacht had formerly belonged to an American who had several times traversed the Atlantic Ocean in it, but since its acquisition by the Belgian owner it had been used mainly for pleasure trips to Norway. The claimant contended that the yacht could not be regarded as a merchant vessel-navire de commerce-in the sense of the German prize ordi 1 Compare Higgins, Br. Yr. Book of Int. Law, 1922-23, p. 77, who thinks Fromageot's report bears out this view. 227 Rev. Gén. (1920), Jurispr., 90. 3 I, Entsch., 194; Fauchille and De Visscher, Jurispr. All., p. 146. 1 nance, and, in consequence, the Prize Court had no jurisdiction to condemn it. The Prize Court at Hamburg, however, condemned it, and upon appeal to the Supreme Prize Court at Berlin, the decision was affirmed. Before the supreme court the appellant argued, first, that the Primavera not having been captured at sea but in the interior of Belgium the capture was an act of land warfare over which the Prize Court had no jurisdiction; second, that it was not a sea-going vessel (navire de mer) but was used by the appellant entirely upon the canals of Holland; and, third, that it was not a "merchant vessel," and therefore the capture did not fall within the jurisdiction of the Prize Court, either under the prize ordinance or under the general rules of international law. The first contention had already been disposed of by The Court in the case of the Primula, where it was held that the prize jurisdiction applied to captures of ships made by the troops or port authorities in interior ports and this decision was reaffirmed in the present case. The second argument that the vessel was not a sea-going ship, The Court declared was refuted by the declaration of the appellant that it had on several occasions crossed the ocean and had made voyages to Norway. It possessed, therefore, the character of a sea-going vessel and it was immaterial that the yacht had been used by the present owner only for pleasure trips. As such the law of maritime war, and not that of land warfare (Art. 53 of the Fourth Hague Convention relative to the laws and customs of war on land), applied to its capture. The benefit of the Sixth Hague Convention could not be invoked since that convention would protect it only in case it were found in a German port at the outbreak of war. The third argument, that the Primavera was not a merchant vessel in the sense of the prize ordinance and therefore not a subject of prize jurisdiction, the Court rejected and laid down the rule that all vessels which are not the property of the state must be considered as merchant vessels, without regard to their character or the use to which they are put. This resulted not only from the language of the German prize ordinance but also from the discussions of the subject at the London naval conference and from the express understanding regarding the meaning of the term navires de commerce as embodied in M. Renault's report accompanying the Declaration of London. Nevertheless, the Court admitted that the term navire de com 1I, Entsch., p. 17; Fauchille et De Visscher, Jurispr. All., p. 13. See also Sec. 146, supra. merce was used in two senses: first, in the sense of the prize ordinance and the Declaration of London where it was intended to embrace all non-state owned vessels, and, second, in the stricter sense of including only private vessels employed in commerce properly speaking. It was this latter interpretation which the appellant sought to have adopted. The Court pointed out in support of its thesis that if only those vessels which are used for commercial purposes in the strict sense of the word may be regarded as "merchant vessels" it would not have been necessary to except from the right of capture hospital ships, fishing boats, vessels employed on religious missions, etc., because according to this contention the law of maritime capture would not apply to them and they would not be subject to it even if the exception had not been expressly made. Sec. 208. Are Tugs and Lighters "Merchant Vessels"? German Interpretation. In the case of the Assistent and Undine1 the German Supreme Prize Court was called upon to decide whether certain Russian wooden tug boats, ferry boats, and lighters, seized at Libau, were "merchant ships" (Kauffahrteischiffen, navires de commerce) within the meaning of the German prize code and whether therefore the Prize Court had jurisdiction to pass upon their liability to condemnation. It does not appear that their immunity from capture under the Hague Convention was invoked by the claimants. The lighters were employed for loading and unloading ocean going steamers and the tugs for moving the lighters and ferry boats. The Prize Court at Hamburg held that considering the small size and tonnage of the craft, they were not merchant vessels although privately owned and consequently the Prize Court had no jurisdiction. Upon appeal by the Imperial Commissioner the Supreme Prize Court affirmed the decision of the lower court and held that while as a general rule all vessels belonging to private individuals must be regarded as merchant vessels within the sense of the German prize ordinance, the rule was not without exception. The term "merchant vessel," said the Court, implies the idea of a ship which by its structure and build has a certain importance. Tugs and lighters which are employed merely to maintain communication between the shore and ships anchored in port and which by reason of their build and dimensions are never designated as "ships" by mariners cannot be regarded as "merchant vessels." 1I, Entsch., 150; Fauchille et De Visscher, Jurispr. All., p. 116. See also Secs. 60, 61, supra. This was recognized by the prize ordinance in its provisions relative to the carrying of flags and identification papers. For these and other reasons it was little probable that the prize code ever intended that the Prize Court should have jurisdiction of cases of capture of such craft as tugs and lighters. Their capture was therefore governed not by the law of maritime prize but rather by the laws of land warfare, notably by Article 53 of the Fourth Hague Convention of 1907. In the case of the Comte de Smet de Naeyer,1 the German Supreme Prize Court overruling the Prize Court at Hamburg, again affirmed the rule that according to the German prize ordinance, which it declared was in accord with the Declaration of London, merchant vessels include all ships not belonging to the state and the vessel which was the object of proceedings in this case not coming within the exception referred to above in the case of the Assistent and Undine was condemned as good prize. The vessel was owned by a company which conducted a school of navigation and which had occasionally received subventions from the state. This fact and the further circumstance that the school was under the surveillance of the state did not, however, give the vessel the character of a public ship. Nor did the fact that the vessel had for some years ceased to make sea voyages and remained at anchor in port, deprive it of its character as a sea-going vessel since it could easily be retransformed into a transport ship.2 Sec. 209. English and German Interpretation Compared. It will be recalled that in the English case of the Germania counsel for the appellant argued before the Privy Council that the category of "merchant vessels" embraced all vessels not belonging to the state and they relied upon German authority and jurisprudence and upon the discussions at the International Naval Conference in support of their contention but the Privy Council rejected the contention and held that not all privately owned ships were merchant vessels and that among these were yachts. The decision of the German Prize Court in the case of the Primavera that yachts are merchant vessels was therefore contrary to the English decision, although in both cases the decision led to the same result: the condemnation of the yachts. In the English case, however, the Prize Court was interpreting the Sixth Hague Convention. The question involved was whether pleasure yachts belonged to the category of vessels which the Convention 1I, ibid., 209; ibid., 159. See further, as to these German cases, Secs. 60, 190, supra. intended to protect against capture. In the case of the Primavera the German Prize Court was called upon to interpret not the Hague Convention, which was not applicable, but the German prize ordinance. According to this ordinance all vessels not the property of the state fall within the category of merchant vessels and the Primavera being of this class and not coming within the protection of the Hague Convention, since it was not captured in a German port, was confiscated. The two decisions so far as they relate to the status of yachts are not necessarily contradictory since a yacht may well be a merchant vessel in the sense of the German prize ordinance and yet not be in the sense of the Hague Convention. As to the meaning of the term "merchant vessel" (navire de commerce) as used in the Hague Convention and the Declaration of London, however, the opinions of the British and German Prize Courts are not in accord. The former apparently restricts the term to vessels which are employed strictly for purposes of commerce and transportation, that is, their character or use is the test; the latter extends it to include all vessels not belonging to the state, that is, ownership is the test. III INTERPRETATION OF THE WORD "PORT" IN THE SIXTH Sec. 210. British Interpretation. The meaning of Article 1 relative to days of grace for merchant vessels "in an enemy port" or which "have entered a port belonging to the enemy" was a subject of controversy and of interpretation by the Prize Courts in a number of cases. The specific questions raised were: what is a "port" and what are the "high seas" in the sense of the Convention? In the case of the Möwe,1 the British Prize Court held that a German merchant vessel captured at a place in the Firth of Forth which was not within the limits of a "port" in the usual commercial sense but was within the limits of the "port" of Leith for customs purposes was not protected by the Sixth Convention. The word "port" as used in the Convention did not mean, Sir Samuel Evans said, a fiscal port but must be construed in its usual popular or commercial sense as a place 'II, Lloyd, 70; I, Br. & Col. Pr. Cas., 60. |