seized at Port Said after the outbreak of the war. The vessel was free to leave at any time between August 14 and October 13, 1914, but no safe conduct was offered the master and in the opinion of the Court it would have been refused if requested. The Court held that under such circumstances the vessel was not to be deprived of the protection afforded by the Sixth Convention. "Permission to leave," said Judge Cator, "unless accompanied by a safe conduct, is wholly illusory; it in no way satisfies the intention of Article 1 of the Convention; and if the Bärenfels had steamed out of Port Said it may be postulated as a certainty that she would have been captured on reaching the high seas. I have no doubt that Article 2 applies and the ship cannot be confiscated." "When a proclamation offering days of grace is issued," said the Judicial Committee, "it ought to be explicit and unambiguous."1 When, therefore, a vessel was seized and put in charge of a watchman and her papers and charts removed with no intimation that in case the master applied for a pass they would be restored and he would be allowed to leave, the ship was not liable to confiscation even if no request was made for a pass. The prosecution, it was said, should make it clear that, in case the masters wished to avail of the offer, passes would be given and their papers restored. "It would ill become a sovereign power," the Judicial Committee added, "and would ill become a Court of Prize adjudicating upon the rights of others. . . to seek to give effect to a proclamation which was less than clear, in order to curtail the advantages which the Convention was intended to secure to a ship which finds itself in its enemy's port." But where a vessel was allowed to leave and was offered a sufficient pass to a neutral port, but refused to take advantage of the offer she was held to be not protected by the Convention. It was not necessary, the Court held, that the pass should be unconditional; reasonable conditions might be attached to it, such as the obligation of the master to discharge within a limited time the cargo at the port to which it was consigned and depart therefrom within 48 hours after the completion of the discharge. Refusal to leave with the offer of such a pass rendered the ship liable to confiscation." The Turul, VIII, Lloyd, 449; III, Br. & Col. Pr. Cas. 356. ון Sec. 224. What Constitutes Force Majeure? By Article 2 of the Sixth Convention a merchant vessel which owing to circumstances of force majeure is unable to avail of permission to leave, cannot be confiscated. In the cases of the German merchant vessels seized by the Belgian authorities in the ports of Antwerp, Ostend, and Ghent the owners contended that even if the vessels were free to leave, as the Belgian government asserted they were, they were unable to do so owing to circumstances of force majeure resulting from their inability to procure adequate crews and pilots to replace those who had left to obey the German mobilization order. The Belgian Prize Council, however, rejected this contention and held that this was not a case of force majeure in the sense of the Convention. In any event, said the Prize Council, the masters could, if they had desired, have obtained crews from among neutral seamen, a considerable number of whom were there without employment. Furthermore, it was added that at the moment of capture no allegation was made regarding inability to leave on account of lack of crews and pilots. It was evident, therefore, that their masters did not desire to leave, for the reason that had they done so they would have been captured in the North Sea.1 The Egyptian Prize Court held in the case of the Achaia, and the decision was affirmed on appeal by the Judicial Committee, that the refusal of a vessel to leave under a sufficient pass offered it could not be said to have been due to force majeure 2 nor was the refusal of the master to leave because of his alleged lack of funds with which to purchase coal and provisions, especially since he had refused an advance from the consignees of the cargo, to be regarded as a case of force majeure. The Prize Court thought it would be stretching the meaning of the Convention to the "breaking point" to hold that this constituted circumstances "beyond control." This interpretation was approved by the Privy Council on appeal. In the opinion of their Lordships "the force majeure contemplated in the Article is one which renders the vessel unable to leave the port and cannot be construed to include the circumstance that the master has not been provided by the owners with sufficient financial resources to continue his voyage." But where a ship had been seized in a See the cases of the Minna; the Feronia; the Elbing, Hanau and Tasmania; the Delos; the Atto and Ganelon; the Wartburg and others, 47 Rev. de Droit Int., pp. 138, 190, 271, 277, and 289. 'V, Lloyd, 63; II, Br. & Col. Pr. Cas., 45. The Concadoro, V, ibid., 92; I, ibid., 390, and II, ibid., 64. British port at the outbreak of war and put in charge of a watchman and her papers and charts removed, the general statement in a proclamation subsequently issued, allowing days of grace was not a sufficient intimation to the master that if he chose to apply for a pass the watchman would be removed and his papers and charts restored and he would be free to depart within the time mentioned in the proclamation. If, therefore, he remained, his ship was not liable to condemnation because his inability to leave would be a case of force majeure within the sense of Article 2 of the Hague Convention. The Judicial Committee added, however, that if the master had had the opportunity of departing but had for reasons of his own decided not to avail himself of it, as, for example, because he could not sail without coal and could get no money to procure a supply or because he was not sufficiently confident that a British passport would protect him from capture by enemy vessels, "then it has been settled that in such a case it is his own choice-it may be also his own misfortune -that detains him in the port, but the ship is liable to be confiscated because it cannot be truly said that force majeure is what has prevented him from taking advantage of the opportunity."1 VII PROPER ORDERS TO BE ISSUED BY THE PRIZE COURTS Sec. 225. Chile Orders. There was some doubt and some difference of opinion among the British Prize Courts as to the proper orders which they should make in respect to enemy ships which were entitled to the benefit of Article 2 of the Sixth Convention. In the case of the Chile, the first to come before a British Prize Court, the Attorney-General stated that since no information had been received from the German government as to what course it proposed to adopt in regard to British ships found in German ports at the outbreak of the war, that is, since there was no "reciprocal arrangement" that the ships of both countries should be released, he would ask for an order which The Turul, VIII, ibid., 449; 1II, ibid., 356. See also the Case of the Tergestea (II Lloyd 149) where the English Prize Court held that the inability of an Austrian ship to leave because of congestion in the port and the absence of proper facilities for discharging her cargo constituted a case of force majeure within the meaning of the Convention. 'I, Lloyd, 8; I, Br. & Col. Pr. Cas., 1. would not involve the instant condemnation of the vessel, but for an order of detention with right of the Crown to apply later for an order of condemnation in case it was ascertained that Germany's course justified the confiscation of the vessel. Such an order, he said, would preserve to the Court full control and jurisdiction over the ship and yet it would be a recognition of the application in letter and spirit of Article 2 of the Convention. It would, at the same time, suspend the transfer to the Crown of title to the vessel, so that if as a result of some disaster unconnected with the war, the ship should be destroyed, the ownership would still be in the claimants and not in the Crown. In reply to a query by the President of the Prize Court as to the meaning of Article 2, the Attorney-General stated that, in his opinion, it meant that at the end of the war a merchant vessel protected by the Article would be restored without payment of compensation by the government. He did not understand that in the meantime the property in the ship would pass from the original owners to the Crown and then back again at the end of the war. If, therefore, the ship was lost during the period of detention, the government would not be responsible. The order for which he asked meant that the ship should be so dealt with by the Prize Court as to enable Article 2 to be applied at the end of the war, namely that the Chile should be adjudged as belonging at the time of capture to the enemies of the Crown and as such was rightfully seized and that she be detained until further order with the right of the Crown at any time to apply for a decree of condemnation. The President complied with this request and issued an order for the detention of the vessel "until a further order should be issued by the Court." The language of the order was not strictly in accord with the Prize Court rules of 1914 (Order XXVIII) but it was followed by the same court in the cases of the Tommi and the Rothersand1 and others and by the Prize Courts of South Africa, Canada, and of Jamaica.* Sec. 226. Action of the Prize Court for Egypt. In the case of the Gutenfels the Prize Court for Egypt at first issued a "Chile order" in respect to a German vessel seized in a Suez Canal port but subsequently by a "further order" declared that the vessel must be restored or her value paid to the owners at the 'II, Lloyd, 1; I, Br. & Col. Pr. Cas., 16. The Hamm, No. 5, and Apolda, No. 6 (Cases Decided in the Prize Courts of South Africa, p. 15) and the Sturmvogel and Seeadler (ibid., 29). The Bellas, I, Br. & Col. Pr. Cas., 95. The Atlas and Lighters, II, ibid., 470. conclusion of the war. Upon appeal by the Crown the Judicial Committee varied the judgment of the Prize Court by substituting a "Chile order" of detention until further order. Thus the correctness of such orders was approved by the highest judicial authority. In the case of the Bärenfels, Judges Cator and Grain of the Prize Court for Egypt disagreed as to the proper order to make, the former holding that the vessel should be detained until the end of the war when it must be restored to her owners or the value paid them, while the latter held that a simple order of detention, that is a "Chile order," should be made with liberty of the Crown to apply at any time for an order of condemnation. Judge Cator being the senior member of the Court, his order prevailed and was therefore the order of the Court. Upon appeal the Judicial Committee, however, approved the dissenting view of Judge Grain and substituted a "Chile order," as it did in the cases of the Gutenfels, the Prinz Adalbert, the Kronprinzessin Cecilie and others. It may be observed that in a number of cases where orders had been made for detention until further order, with a declaration that the ships should be restored or their value paid to the owners at the conclusion of the war such orders were upon appeal to the Judicial Committee reversed and decrees of condemnation substituted therefor. 5 Sec. 227. Final Disposition of Ships Detained Under "Chile Orders." Ships against which "Chile orders" were made unless superseded by decision of the Judicial Committee substituting orders of condemnation therefor, remained in the custody of the Prize Court. But under the terms of such orders the Crown was always at liberty to apply to the Court for a further order of condemnation which it sometimes did with success." It was not until some months after the Treaty of Versailles had been ratified that the Crown took steps to obtain definitive decisions regarding the final disposition of such vessels. In the case of the Marie Leonhardt, a German vessel against which a "Chile order" had been made in August, 1914, the Crown in 1920 asked the Prize Court for a decree of condemnation. Sir Henry Duke, IV, Lloyd, 336; I, Br. & Col. Pr. Cas., 102. 'I, Br. & Col. Pr. Cas., 123. I, Br. & Col. Pr. Cas., 123. IV, Lloyd, 336; II, Br. & Col. Pr. Cas. 36. For example the Marquis Bacquehem, V, ibid., 79; II, ibid., 58. X, Lloyd, 178; III, Br. & Col. Pr. Cas., 761. |