without intention of capture, whether it should be condemned or released, whether in case the property is not condemnable there were justifiable grounds for seizing it, whether in case the prize has been destroyed at sea there were justifiable grounds for the destruction, whether the owners are entitled to an indemnity for damages and losses sustained, etc.1 The jurisdiction of the Belgian Prize Council, on the contrary, is regulated not by executive ordinance, but by the organic law of 1919 for the constitution of the Prize Council, which in more general terms empowers the Council to decide upon the validity of prizes taken by captors of Belgian nationality or by allied captors, with the consent of their State, and upon "all other matters of prize" when the capture has been made in the territorial waters of Belgium or its colonies or when the interest in litigation was covered by the Belgian flag.

In China the jurisdiction of the Prize Court is declared by the "Prize Court Rules" of November 30, 1917,2 to extend to "all matters relating to capture at sea."

In France the matter is dealt with in equally general terms by the decree of November 28, 1861, Article 1 of which charges the Prize Council with deciding upon "all claims and issues (demandes et contestations) relative to the validity of maritime prizes the judgment of which belongs to the French authorities.3 Sec. 34. Sources of British Prize Jurisdiction. The jurisdiction of the British Prize Courts, apart from that resulting from the general principles of international prize law, is determined in part by acts of parliament, in part by the terms of the royal commissions under which the Prize Courts are constituted at the beginning of war, in part by Orders in Council issued from time to time during the war and in part through the interpretation of the Prize Courts themselves. In the case of the Südmark (No. 2) the Judicial Committee rejecting the argument of

1 See the somewhat similar prescriptions in the Austro-Hungarian Prisengerichtsordnung of Nov. 28, 1914, Secs. 7-8.

2Text in Judgments of the High Prize Court of the Republic of China, p. 125. When China entered the war (August 14, 1917), she had no Prize Court rules and it was contended by the claimants of several German ships seized at the outbreak of the war that the rules in so far as they related to capture could not be applied retroactively, but both the District and Supreme Prize Court rejected the argument. See, among others, the case of the Albenga, ibid., p. 34.

The reprisals decree of March 13, 1915, extended the jurisdiction of the Prize Council to include the determination of the question of whether goods belonging to German subjects seized in pursuance of the decree were coming or going from Germany.

VI Lloyd 343; II Br. & Col. Pr. Cas. at p. 478. As to the origin and

counsel that the Prize Court had jurisdiction, and, in fact was under an obligation to enforce the rules of the Hague Convention, said:

"The jurisdiction of a Court of Prize does not embrace the whole region covered by international law. It is confined to taking cognizance of, and adjudicating upon, certain matters (including capture at sea), which in former times were enumerated in the royal commissions under which the Court was constituted, and are now defined both by statute and by the royal commission issued at the beginning of the war-see Naval Prize Act, 1864 (3) (27 & 28 Vict. c. 25), s. 55, sub-s. 5, Judicature Act, 1891 (54 & 55 Vict. c. 53), s. 4, sub-s. 1, and Royal Commission of August 6, 1914."1

In the case of the Roumanian 2 Sir Samuel Evans referring to the royal commission issued to the Prize Court at the beginning of the late war as the source of its jurisdiction, said:

"By this commission the Court is 'authorized and required to take cognizance of and judicially to proceed upon all and all manner of captures, seizures, prizes, and reprisals of all ships, vessels and goods that are or shall be taken, and to hear and determine the same; and according to the course of admiralty and the law of nations, and the statutes, rules and regulations for the time being in force in that behalf, to adjudge and condemn all such ships, vessels and goods as shall belong to the German Empire or the citizens or subjects thereof, or to any other persons inhabiting within any of the countries, territories or dominions of the said German Empire, which shall be brought before you for trial and condemnation.'"

The jurisdiction thus conferred was broadly interpreted by the Prize Courts, so that in practice it was made to embrace nearly all claims and controversies arising in connection with maritime capture-a goodly number in fact over which the prize tribunals of various other countries declared themselves to be without jurisdiction.

Sec. 35. The Same. Italy and Siam. The jurisdiction of the Italian Prize Commission is declared by article 225 of the Merchant Marine Code to be the determination of the validity of the capture and the liability to confiscation of prizes taken. By the decree of May 30, 1915, relative to the treatment of enemy merchant vessels sequestered in Italian ports at the outjurisdiction of the British Prize Court see 140 Law Times (1915-1916), 417 ff. and 437 ff.

The Naval Prize Act, 1864, expressly reserves the jurisdiction and authority of the Prize Court "to take cognizance of and judicially proceed upon any capture, seizure, prize or reprisal of any ship or goods, and to hear and determine the same, according to the course of Admiralty and the law of nations, to adjudge and condemn any ship or goods" and also "any other jurisdiction or authority of, or exercisable by a Prize Court."

'I Lloyd 191; I Br. & Col. Pr. Cas. at p. 85.

break of the late war the Prize Commission was further charged with determining the nationality of the goods found on such vessels, which goods if of enemy nationality, were to be restored at the close of the war without payment or could be requisitioned upon payment, and if of neutral nationality, were to be released or requisitioned upon payment. By the decree of August 1, 1915, the Prize Commission was further charged with hearing and determining claims for damages arising in connection with the exercise of the right of capture.

The jurisdiction of the Prize Court of Siam as defined by a decree of July 20, 1917, embraced "full jurisdiction . . . to take cognizance and judicially proceed in all matters of prize, including special captures, namely, conjoint captures with an ally, captures arising out of land expeditions, joint captures or captures by the officers and crew of a ship other than a ship of war and also salvage and prize bounty."

Sec. 36. Prize Court Judge of Its Own Competence. The jurisdiction of a Prize Court to determine the legality of a capture and pass upon questions accessory thereto includes the jurisdiction to determine its own competence according to the national law, that is, whether a particular claim presented to the Court is one which it is competent to hear and decide. Naturally this includes the right to reject the claim. Thus the German supreme Prize Court said in the case of Eemland and Gaasterland (sec. 32 supra):

"According to the organization of prize procedure, such as it has been established by the Prize Court Ordinance, the indispensable base to the preliminary condition of the institution of the proceedings is to deliver the prize to the prize officer. If the purpose of the capture was not to take the prize in to port, it is necessary that a report of the capture or, in default of a report to the Court, then to the admiralty. Communications or declarations of privately interested parties do not suffice for the institution of proceedings. . . . This does not mean, it is well understood, that the institution of prize proceedings is left to the good pleasure of the maritime authorities. These latter have, on the contrary, the obligation to bring before a Prize Court for decision every matter of prize which has not been determined in some other manner. This is in fact what has been done without exception during the present war. In a great number of instances the Prize Courts have been seized of cases which they declined to take jurisdiction."

Text in Fauchille et Basdevant, Jurispr. Ital., Annexe, p. VII. Text, ibid., p. xxii. Certain special powers were conferred on the Prize Commission by the decree of June 24, 1915. Ibid., p. xiii.

See also the Austro-Hungarian case of the Schkodra No. 1. Normal Verordnungsblatt für die K. u. K. Kriegsmarine, June 25, 1918, 21 Stück, p. 216.

Judge Cator of the Prize Court for Egypt in the case of Ten Bales of Silk at Port Said1 thus defined the general jurisdiction of the British Prize Court:

"The law and customs which regulate the condemnation or release of such property is termed prize law, and the question whether any particular goods fall within the category of prize is determinable by the Prize Court; that is to say, if the Crown advances a claim to goods as maritime prize, it is for the Prize Court alone to determine all questions to which the claim gives birth, whether such questions relate to ownership arising out of capture of goods admittedly subject to prize law, or go to the jurisdiction of the court by a defence that the goods have not such a quality as to render them susceptible of what I may call maritime capture. . . . It is not often that a question arises as to the quality in which goods are taken, for they are usually seized on board a ship; and it is fundamental that all goods captured afloat are subject to prize law. Still, it does sometimes happen that a cargo has been separated from a ship, and a dispute has ensued between the captors and owner as to whether it falls within the jurisdiction of the prize court or not."

The Italian Prize Commission in the cases of the Mikail 2 and the Anthippi3 replying to the argument of the owners that the Commission was without jurisdiction for reasons to be explained hereafter, said:

"It belongs to the judge to examine the matter submitted to his judgment when the decision comprises as in the present case the interpretation of an act relied upon as the basis of the claim. Thus, even if this commission does not have the power to pronounce upon its own competence, it is impossible to deny that it has in the special case the right to pronounce on the two preliminary exceptions, since it would lead, if it were well-founded, not to a denial of the competence of this commission, but simply the admissibility of the action of the State."

II

EQUITABLE JURISDICTION OF PRIZE COURTS

Sec. 37. British Jurisprudence. Sir Samuel Evans said in the case of the Juno that "the Prize Court has always claimed

4

'I Lloyd 177; I Br. & Col. Pr. Cas. at p. 160. See also the case of the Iolo (I Br. & Col. Pr. Cas. at p. 301), where Sir Samuel Evans quoted the following from Lord Stowell:

"This Court sits no more than the Courts of common law do to make contracts between parties; but, as a Court exercising an equitable juris

to exercise equitable jurisdiction, using that term in its broadest sense, and not in its more technical chancery meaning," and in this case he held that the claim of certain shipowners to freight and other expenses could be resolved by "a rational application of fair and equitable considerations." Accordingly he allowed in part their claim.

Again in the case of the Corsican Prince1 adverting to the distinction between the jurisdiction of equity and law applied by the Prize Courts and those of the courts of common law, he said: "The Prize Courts deal with claims in accordance with the law of nations and upon equitable principles freed from contracts, which almost always clash and have effect upon capture or seizure, by reason of the non-approval or non-completion of the contract of affreightment; whereas common law courts would only determine the consequences of the strictly legal contractual obligations of the parties." A common law court would therefore allow a claimant the whole freight earned or nothing at all, according to whether the contract had been performed or not, whereas the Prize Court could take all the circumstances into consideration and allow proportional freight or discard the contract rate altogether.2

Sec. 38. But Prize Court No Jurisdiction to Redress Hardship. Where a Prize Court is called upon to decide the question of the legality of a capture, which legality is determined by positive rules of municipal or international law, considerations of equity cannot be allowed to influence the decision of the Prize Court. Its decisions in such questions must therefore be based upon strict legal principles. If the decision results in hardship or substantial injustice to the claimant, the government and not the Prize Court has the power to furnish redress. Thus the British Prize Court dismissed the claims of British and neutral mortgagees of enemy ships and goods although the mortgages were executed in time of peace, and upon equitable considerations the mortgagees were entitled to reimbursement out of the proceeds of the sale of the prize for the amount of their diction, it considers itself bound to prove as well as it can for that relation of interests which has unexpectedly taken place under a state of facts out of the contemplation of the contracting parties in the course of the transaction."

In this case and that of the St. Helena (ibid., 622) Sir Samuel Evans pointed out that the principles of prize law were more equitable than those of the common law and that consequently a claimant can sometimes obtain relief in the Prize Court when he could not in a common law court.

II Lloyd 198; I Br. & Col. Pr. Cas. at p. 185.

See further as to this Sec. 479 infra.