Prize Court could act was to assume that an enemy ship fitted with wireless apparatus receives from its government, either directly or by transmission from other ships, prompt news of the outbreak of hostilities between its own and any other country. After some hesitation, however, he said he had come to the conclusion that this presumption was open to rebuttal by the production of proof to the contrary and in this case the onus had been freely discharged by the ship. A decree of detention until the end of the war, with a declaration that the vessel must then be restored or her value paid to the owners, was issued. Upon appeal, the Judicial Committee substituted a "Chile order" in lieu of the order for detention and restoration but it does not appear that it took a different view as to the ignorance of the master in entering the port.1

The Cape of Good Hope provincial division of the supreme court sitting in prize issued decrees of detention rather than of condemnation against two German vessels whose masters asserted that they entered the port of Table Bay in ignorance of the existence of war. The truth of their statements was accepted in view of the fact that neither vessel was equipped with a wireless telegraphic outfit. But the same court confiscated the German steamer Birkenfels, which entered the same port after the outbreak of war in pretended ignorance of the existence of hostilities, but which had on board a wireless telegraph installation which functioned regularly. Following the decision in the case of the Gutenfels No. 2 the Court laid down the rule that vessels fitted with wireless intallations must be presumed when entering port after the outbreak of war to have had knowledge of the existence of war and that the onus of proving the contrary rests upon the ship when, as in this case, the installation was in good working order throughout the voyage and there were a number of wireless stations, neutral and German, with which the ship could have communicated, it was natural that the Birkenfels must have been aware of the existence of the war. The onus of satisfying the Court to the contrary not having been discharged, the vessel was condemned.

Sec. 215. What Constitutes Ignorance of Hostilities? In the case of the Marquis Bacquehem, the Prize Court for Egypt

4

IV, Lloyd, 336; II, Br. & Col. Pr. Cas., 36.

The Hamm and Apolda No. 2, Cases Decided in the Prize Courts of South Africa, p. 15. To the same effect, see the Bismarck No. 4 (ibid., p. 27).

Ibid., p. 19.

'I, Br. & Col. Pr. Cas., 130.

refused to condemn an Austro-Hungarian vessel which after having been stopped in the Red Sea on August 17, 1914, by an English warship and informed that a state of war existed between Great Britain and Austria-Hungary, was allowed to continue and entered the port of Suez in the belief that it would be treated as a neutral port. She was subsequently taken out to sea by the Egyptian authorities and handed over to an English warship which brought her to Alexandria and put her in the custody of the Prize Court. The case was distinguishable from those of the somewhat similar cases of the Gutenfels and the Bärenfels1 in that she was aware of the existence of hostilities when she entered port, whereas the latter vessels were not. Strictly speaking, therefore, she was not entitled to the benefit of Article 2 of the Convention. But the Court held that a British Prize Court ought to give effect to the object of the Hague Conventions and should interpret the rules of international law in a broad spirit, and since the vessel had derived her information of the existence of hostilities from a British cruiser, which had allowed her to proceed, she could not be confiscated but only detained and restored to her owners at the end of the war. Judge Cator said,

"On that point I have no doubt, but I find it hard to decide whether we should confiscate the ship or only order her detention. For although it is true that after being warned the Marquis Bacquehem might have run for a neutral port, it certainly does seem hard that she should be in a worse plight because the Duke of Edinburgh (an English warship) allowed her to proceed instead of taking her before a Prize Court, especially as this permission seems to have been given in the belief that the ship was entitled to consideration in consequence of her ignorance that war had broken out. Moreover, no stipulation was made that she should go to a neutral port, and she may have been encouraged in the belief that she could enter Suez in security. On the whole, I think that we should only order detention.""

Judge Grain concurred in the decision. After adverting to the failure of the Duke of Edinburgh, under a misapprehension, to capture the Marquis Bacquehem when she had a right to do so, he said, "The point which remains is, are we in consequence of this incident to consider that this vessel has lost the relief granted under the Hague Convention? That is to say, does she become a vessel entering port with knowledge of war on account of the knowledge which she has received from H.M.S. Duke of Edin

'I, Br. & Col. Pr. Cas., 102, 122.

As to Judge Cator's observations regarding the duty of the Court to give effect to the Hague Conventions, see Sec. 109, infra.

burgh? I am of opinion it would not be just to take advantage of this incident to make out a case of confiscation against her." But upon appeal, the Judicial Committee reversed this liberal decision and condemned the vessel on the ground that she was not in a belligerent port at the outbreak of war, nor did she enter such a port while ignorant of the existence of hostilities, nor was she captured on the high seas while ignorant of such hostilities. The reasoning of the Prize Court, said their Lordships, was not "in accordance with any principle of law" and could not be accepted. The commander of the Duke of Edinburgh acted under a misapprehension that some period of grace had been allowed and accordingly refrained from capturing her. His entry in the log book of the Marquis Bacquehem that she had been boarded and allowed to proceed could not be regarded as a sort of license to proceed without any risk of capture but was a mere memorandum of the fact of visit and search. Indeed, their Lordships concluded, if the commander had been truthfully informed of the facts of the case he would have captured the vessel on the simple ground that she entered with full knowledge of the existence of hostilities an enemy port where in the circumstances she was not entitled to protection or immunity under any international convention.

V

TREATMENT OF ENEMY VESSELS ENTERING AND REMAINING FOR PURPOSES OF REFUGE IN NEUTRAL PORTS WHICH SUBSEQUENTLY BECAME BELLIGERENT PORTS

Sec. 216. Interpretation of the British Prize Court. In a number of cases the Prize Courts were called upon to determine whether the protection of Articles 1 and 2 of the Sixth Convention applied to vessels which were not actually caught in enemy ports at the outbreak of the war but which entered them at a time when they were neutral, for the purpose of seeking refuge against capture.

In the case of the Belgia,2 a German vessel which attempted to enter a British port some hours before the outbreak of war between Great Britain and Germany, the British Prize Court

1V, Lloyd, 79; II Br. & Col. Pr. Cas. 58.

IV, Lloyd, 117; I. Br. & Col. Pr. Cas., 303. See also Sec. 210, supra.

expressed "grave doubt" whether the Sixth Convention was intended to protect such vessels. The captain contended that his purpose in endeavoring to enter the port was to obtain a supply of coal. The Court refused to believe his story (since in fact he had an ample supply) and declared that his real purpose was to escape possible capture by the cruisers of France, between which power and Germany war had already broken out, and also to get instructions from the German government.

Sir Samuel Evans passed definitely on the question in the case of the Prinz Adalbert1 and the Kronprinzessin Cecilie, two German vessels which entered the port of Falmouth on the morning of August 4, 1914, before the outbreak of war between Great Britain and Germany, but after the master had received a wireless message that war had already broken out between Germany and France. Both were condemned on the ground that the Sixth Convention did not protect vessels entering port under such circumstances. Adverting to the preamble to the Convention whose object is stated to be the desire to "insure the security of international commerce against the surprises of war" and to "protect as far as possible operations taken in good faith, and in process of being carried out before the outbreak of hostilities," Sir Samuel observed that these vessels were not in the port of Falmouth "in pursuance of any commercial undertaking at all"; and that the object of the master in taking them in was not to engage in commerce but was for a totally different purpose, which was not contemplated by the powers when they agreed upon this provision of the Hague Convention. The vessels were therefore condemned as good prize. Upon appeal to the Judicial Committee a "Chile order" (detention) was substituted for the decree of condemnation, following the precedent in the case of the Gutenfels. The Judicial Committee thought the effect upon Article 1 and 2 of the preamble to the Convention was a point which admitted of "considerable doubt" and it was a question which they did not propose to decide at that time. By the substitution of

2

IV, ibid., 360; II, ibid., 70.

IV, ibid., 360; III, ibid., 363.

This decision is criticized by Mr. C. N. Gregory (13 American Journal of Int. Law, 91) on the ground that a vessel on a commercial voyage which enters a port to seek shelter against capture might well be treated in the same way as one which enters to escape a violent storm. This criticism, if restricted to the judgment of the Prize Court which condemned the ships, contains an element of justice, but since the Judicial Committee overruled the Prize Court and substituted an order of detention it is hard to see wherein lies the weight of the criticism. It is not clear what other decision the Judicial Committee could have reached without affirming the judgment of Sir Samuel Evans.

a "Chile order" the rights of the Crown would be preserved intact for decision when the war was over and the views of the German government as to the true construction of the Convention would be known. The question was never definitely decided by the Privy Council, and the final disposition of the vessels was left to the treaty of peace.

Sec. 217. Status of Enemy Merchant Vessels in Egyptian Ports. The question of the applicability of the Convention to vessels taking refuge in neutral ports under the circumstances explained above assumed great importance by reason of the entrance of large numbers of German ships, in particular, into the territorial waters of Egypt, the Suez Canal, the ports of the United States, Brazil, China, Siam, and other countries which were neutral for some time after the outbreak of war in Europe but which ultimately became belligerents.

As regards those entering Egyptian waters the question involved not only the application of the Hague Convention but also the interpretation of the Suez Canal Convention of 1888 relative to the international status of Egypt and of certain Egyptian ports.

The Prize Court for Egypt held that while the Suez Canal Convention established the right of free passage through the canal for all ships without distinction in time of war, as in time of peace, it did not give a right of asylum to belligerent merchant vessels in the ports of the canal and consequently such vessels entering the canal not for the purpose of passing through it but for the purpose of refuge were liable to seizure.1 This view was affirmed by the Judicial Committee of the Privy Council.2 The Prize Courts also held that Egyptian ports prior to the establishment of the British protectorate, in December, 1914, and before Turkey entered the war, must be regarded as enemy ports vis à vis Germany and Austria-Hungary, in the sense of the Sixth Hague Convention.3 While the Prize Court for Egypt held that German merchant vessels found in such ports were entitled to the benefit of the Sixth Hague Convention and could therefore only be detained until the end of the war when they must be restored, the Privy Council overruled the Prize Court to the extent of adjourning a final decision, not because it enter1 See especially the case of the Gutenfels, I, Br. & Col. Pr. Cas., 102. 2 The Gutenfels, Bärenfels, and the Derflinger; compare also the Pindos, Helgoland and Rostock.

'See notably the cases of the Gutenfels, the Achaia and the Marquis Bacquehem.

The Gutenfels and the Bärenfels.