where ships are in the habit of coming for the purpose of loading or unloading their cargoes. The case of the Möwe was, therefore, that of a vessel not in port within the meaning of Article 1 but of one "encountered on the high seas" within the meaning of Article 3 and since Germany had not ratified the latter Article the ship was not entitled to the immunity which it provided. In reply to the alternative argument of the claimants that the vessel was captured, if not in port, in "territorial waters" and therefore not on the high seas, Sir Samuel said he would assume that she was taken in territorial waters though he considered that matter immaterial, since the Convention did not refer to "territorial waters." A vessel might, he said, be in territorial waters for scores of miles and might pass numerous ports without any intention of entering any of them, in which case it would be idle to say that on this account it would be immune from capture. He pointed out that where the Hague Conventions intended to deal with territorial waters as distinguished from ports they were expressly referred to as les eaux territoriales (e.g. the Twelfth and Thirteenth Conventions). In answer to the contention that the ship was not liable to condemnation because she was not captured on the "high seas" he pointed out that the words "encountered on the high seas" in Article 3 were not an accurate rendering of the authoritative French rencontrés en mer. Where the Conventions were intended to cover acts done on the "high seas" the phrase en pleine mer was employed. The French words rencontrés en mer were therefore exactly applicable to this case.

The Judicial Committee in the case of the Belgia1 adopted the same restrictive interpretation. The Belgia was a German ship which on the afternoon of August 4, 1914, before the outbreak of war between Great Britain and Germany, attempted to enter the port of Newport but was stopped and ordered to anchor at a point alleged to be within the fiscal port but at some distance from the docks in an open roadstead where cargoes were never discharged or unloaded. This was not a "port" in the ordinary mercantile sense, that is, a place where ships load and unload, nor a "port" within the meaning of the Sixth Convention. It was not considered necessary to determine whether the Belgia, as alleged, was within the fiscal port of Newport, since in the opinion of their Lordships Articles 1 and 2 of the Convention did not apply to vessels merely within fiscal ports. "Those articles," said Lord Sumner, "are limited to merchant ships, and refer to

1IV, Lloyd, 134; II, Br. & Col. Pr. Cas., 32.

commercial transactions, not to fiscal regulations. The word port is used not only in the collocation 'enemy port,' but of 'a port of destination' and 'a port of departure'-well recognized terms in the language of commerce. To extend the benefit of Articles 1 and 2 of the Sixth Convention to vessels within a fiscal port would be not only to interpolate a word not used in the articles, but to introduce a new test not relevant to the subject-matter and involving different considerations. That the scope of Articles 1 and 2 is 'commercial,' and not 'fiscal,' is further confirmed by the language of the preamble of the Convention. The parties to the Convention are not concerned with the fiscal regulations in any particular country, but anxious to insure the security of international commerce against the surprises of war, and to protect, as far as possible, operations undertaken in good. faith and in process of being carried out before the outbreak of hostilities."

1

A somewhat similar case was that of the Erymanthos decided by the commercial court of Malta, in prize. This was a German merchant vessel which arrived off Malta in ignorance of the outbreak of war and was not allowed to enter but was ordered to anchorage in St. Paul's bay and while on her way was seized as prize. The Court being called on to decide whether the capture was made "in port" or, while "entering port" or whether she was "encountered at sea," held that the capture "really took place at sea in territorial waters between the grand harbour and St. Paul's Bay, although the material capture was, in its final stages, carried out . . . at St. Paul's Bay." The Court added, however, that it would have been immaterial even if the capture had taken place in St. Paul's Bay, this on the authority of Sir Samuel Evans' decision in the Möwe that the word "port" in the Hague Convention must be construed in its usual and limited popular or commercial sense as a place where ships are in the habit of loading or unloading, embarking or disembarking. St. Paul's Bay was not a "port" in that sense. It was a place of anchorage for examination purposes at a distance of some miles from the Grand Harbour and there were no other ports in Malta, with two exceptions, within the meaning attributed to the word by Sir Samuel. The Court of Malta said it concurred fully with Sir Samuel and considered that his interpretation was "the only possible interpretation of the word 'port' used in the Convention."

'I, Br. & Col. Pr. Cas., 339. See also Secs. 222, 233, infra.

Sec. 211. The Same. German Interpretation. The German Prize Court was called upon to decide the meaning of the word "port" in the case of the Fenix,1 a Russian vessel which had been seized on the 20th of August, 1914, by a German torpedo boat not far from the mouth of the Elbe in the environs of Hamburg and taken ultimately into the port of Hamburg. The claimants argued, inter alia, that at the time of the capture the Fenix was already in the Elbe and was in the act of "entering port" and was therefore exempt from confiscation under the terms of Article 1 of the Sixth Hague Convention. They called attention to the fact that in several more recent wars, notably the Crimean war, the Franco-German war of 1870, and the Spanish-American war, days of grace had been accorded not only to enemy merchant vessels actually in port at the outbreak of war but equally to those which were proceeding bona fide to an enemy port. The Hague Convention intended to confirm this practice, as the preamble clearly indicated, and if through an inadvertence in drafting, this latter class of vessels was not expressly provided for, the manifest object of the Convention should not be defeated by a restrictive interpretation. The Prize Court admitted that this interpretation might in a certain measure be considered as exact. But the fact existed none the less that Germany had made reservations to the ratification of Article 3 relative to vessels encountered at sea and that in consequence such vessels were not entitled to the benefit of that article, it being applicable only to ships already in port or which "entered" after the outbreak of war. It would be arbitrary to hold, the Court added, that a vessel which is bound to a hostile port is in the same situation as one which has actually entered the port. Adverting to the French text of the Convention, the Court observed that the words entrant dans un port signified simply in einen Hafen einlaufen and there was no reason why these words should be given an interpretation more extended than the text warranted. Even under this strict interpretation ships approaching, bona fide, an enemy port do not lose the benefit of the Convention, because if they are not protected by Article 1 they come under the protection of Article 3. But those in the latter category cannot be placed in the first. The expressed desire of Germany to see the granting of days of grace made obligatory had nothing to do with the question of what ships must be considered as "at sea"

1

I, Entsch., 1; Fauchille et De Visscher, Jurispr. All., 1; English trans., 10 Amer. Jour. Int. Law, 909.

and what must be considered as "entering port." The proceedings of the Hague Conference on this question, said the Court, showed that this interpretation was in accord with the view of the authors of the text.1 It resulted therefore indubitably that Article 1 must be interpreted still more strictly than the lower Prize Court had done, in the sense that it applied only to ships which without having knowledge of the existence of hostilities had really entered or were arriving in an enemy port. So long as the ship is outside a port, properly speaking, even though it is in the immediate environs, it is not protected by Article 1; it must, on the contrary, be considered as "at sea" and subject to capture in view of the non-ratification by Germany of Article 3. Finally, the Court added, this view was in accordance with the strict interpretation of the British Prize Court in the case of the Möwe.

A somewhat similar case decided by the German Supreme Prize Court was that of the Primula,2 which was a Russian merchant vessel seized by a German warship in the river Trave between Lübeck and Travemünde at the moment it was leaving the port of Lübeck. The Court held that it must be considered as having been seized, not in port but at sea and in consequence of the German reservations to Article 3 of the Sixth Convention it was not entitled to the benefits thereof. Again the Court reaffirmed its interpretation in the case of the Fenix that a vessel captured outside a port, even in its immediate environs, was not protected by Article 1. This case differed from that of the Fenix only in the fact that while the Fenix was entering port the Primula was leaving a port. But this difference, the Court held, did not affect the question of principle involved. It could not be admitted that some 20 kilometres of distance on the river between Lübeck and Travemünde must be considered as constituting a "port" in the proper sense of the word and the fact that these waters were subject to police jurisdiction of the port authorities did not make them a port.

3

Sec. 212. The Same. French Interpretation. In the case of the Walküre, the French Prize Council and the Council of State, upon appeal, held that a German merchant vessel which had been seized at the outbreak of the war in the harbor of

"The Court here cited Niemeyer, Urkundenbuch Zum See-Kriegsrecht, p. 473. 11, Entsch., 17; Fauchille et De Visscher, Jurispr. All., 13. See also Sec. 207, supra.

Fauchille, Jurispr. Franc., p. 303.

Makatea, at a place called Port Temao, in the French colony of Polynesia, could not be considered as having been found "in port" or in a place assimilable to a port, but was encountered at sea, and was not therefore entitled to the benefit of Articles 1 and 2 of the Sixth Hague Convention. The seizure of the vessel was made near the approach to an island or a place where according to the map the coast offered no cover for ships and where they were obliged, in order to trans-ship, to motor to buoys anchored at great depth and distant 300 metres at least from the shore.

IV

VESSELS ENTERING ENEMY PORTS IN IGNORANCE OF THE OUTBREAK OF HOSTILITIES

Sec. 213. Convention No Application to Vessels to Which Entrance Is Refused. In Article 1 of the Sixth Hague Convention the desire is expressed that a ship which has left its last port of departure before the commencement of the war and entered a port belonging to the enemy, while still ignorant of the outbreak of hostilities should be allowed days of grace within which to depart freely. This provision was strictly interpreted by the British Prize Courts. As already stated the commercial court of Malta, in the case of the Erymanthos,1 interpreted the clause to mean that only ships which actually succeed in entering port while still ignorant of the outbreak of hostilities were exempt from confiscation-that is those which are allowed to enter-and not those which while desirous of entering are refused permission to do so.

Sec. 214. Presumption of Knowledge. Possession of Wireless Apparatus. In the case of the Gutenfels No. 2,2 the Prize Court for Egypt held that a German vessel fitted with wireless telegraphic apparatus and which did not reach Port Said until about seventeen hours after the outbreak of war between Great Britain and Germany must be presumed to have entered the port with knowledge of the existence of war. In view of the great development of wireless telegraphy in recent years, said Judge Cator, and the extended use to which it has been put for the dissemination of news at sea, the only safe rule upon which a

I, Br. & Col. Pr. Cas. 339. Sec. 210, supra.

'II, Br. & Col. Pr. Cas., 136.