advances. Sir Samuel Evans held, however, that the Prize Court had no jurisdiction to allow such claims although he suggested that the Crown might "out of its bounty deal favorably with any such claims."1 Again he refused to entertain the claims of certain British pledgees of bills of lading of captured enemy cargo, who contended that while they were not the legal owners they had a beneficial interest in the goods and therefore an equitable right to reimbursement from the proceeds of the sale. "Such proceedings," he said, "would be wholly foreign to the jurisdiction and working of this court." 2 Upon appeal Sir Samuel's judgment was affirmed by the Judicial Committee. Their Lordships declared that the redress of hardships, such as these, rested with the Crown and not with the Prize Court and they added that the power of the Crown to exercise bounty in such cases still existed and was not affected by the Civil List Acts. Lord Mersey said on this point:

3

"It is said that in Lord Stowell's time there was a possibility of redressing any individual hardship which might be caused to neutral or subject by

See

To

The Marie Glaeser, I Lloyd 56; I Br. & Col. Pr. Cas. at p. 59. also the Henry Fürst, I Lloyd 183. Further discussion as to the claims of mortgagees, Secs. 116-117; 203-244; 331-335 infra. The editor of the London Solicitors Journal and Weekly Reporter (Vol. 59, p. 156), criticized as technical and archaic this doctrine of the Prize Court that being a court of law it must follow strict legal principles. "Is a British or neutral subject," the editor asked, "to lose his money because he has had business relations with persons who at the time were subjects of a friendly state, but who have since become enemies? The answer is clearly in the negative." Among other reasons given by the Prize Court for its decision was that it did not possess the means for making the necessary inquiries and calculations for ascertaining the extent of the claims of mortgagees in such cases. But as the editor of the Solicitors' Journal pointed out, the Court in other cases is both a court of law and a court of equity and that in fact it can and has made such calculations, as it did in the Juno in respect to freight earned. "But here," he continued, "we have the doctrine that the Prize Court is a court of equity-apparently_a court of equity for some purposes and of law for other purposes. allow freight, it is a court of equity with means of making calculations; but when a mortgagee puts in a claim, the Court is a court of law and says it cannot make the necessary calculations." He concluded, "This is an extraordinary state of affairs, and while admitting the weight of authority the president has had to contend with, and recognizing to the full the responsibility of this position, and the anxious carefulness of his judgments, we regret that the British Prize Court has not led the way in ameliorating the case law and admitting claims which obviously require satisfaction. The hundred years since Lord Stowell might have sufficed for this change." Compare also the remarks of Roscoe, Lord Stowell; His Life and the Development of English Prize Law (p. 84), who observes that while the decisions of Sir Samuel Evans during the late war in respect to the rights of lien holders and mortgagees, based as they were upon Stowell's judgment, were a remarkable tribute to him, "one does not feel sure that, under the altered circumstances of the age, he might not have found some ground by which to limit the effect of his previous judgments." See further as to this, Sec. 295 infra.

The Odessa, the Cape Corso, I, ibid., 301; I, ibid., at p. 176.

'II, ibid., 405; I, ibid., at p. 567. See also the Tergestea (II Lloyd 149).

an appeal to the bounty of the Crown, and that in some way or other the Crown has lost its power of bounty in the matter. It is true that Lord Stowell, when pressed with the individual hardship of decisions he was about to announce, sometimes referred to the fact that any apparent injustice might be met by an exercise of the Crown's bounty-see The Belvidere (1 Dods. 353) and The Constantia Harlessen (Edw. 232). Whether his judgments were in any way based on that consideration, or whether they would not have been the same if the possibility of the exercise of the Crown's bounty had not existed, is an arguable point. In their Lordships' opinion, however, it is unnecessary to decide this point, for, after hearing the Attorney-General, they have come to the conclusion not only that the Crown had and was accustomed to exercise a power of bounty by way of redress of hardships, but that such power still exists unimpaired."

Sec. 39. The Same (Continued). In the case of the Emil1 the Prize Court for Egypt reached the same conclusion regarding the want of jurisdiction to allow the claims of British mortgagees of captured enemy property or to exercise the bounty of the Crown to redress hardships. On the latter point Judge Cator said:

"It has been suggested that this Court might exercise what is called the bounty of the Crown in favour of these British mortgagees, but that is impossible. The Crown has always listened favourably to the complaints of British subjects who suffer hardship by reason of the strict enforcement of the rule, and it would seem that Lord Stowell sometimes himself exercised the Crown's bounty as judge of the Prize Court, and ascertained the sum to be paid by enquiry in chambers-The Belvidere (1813), (1 Dods. 183; 2 Eng. P. C. 183). But this practice has not been continued, and I think it must be admitted that if such jurisdiction ever existed it has fallen into desuetude and cannot be revived without legislative authority.""

Judge Cator took occasion to say that the Crown, recognizing the justice of such claims which the Prize Court was unable to allow, had recently set up a Prize Claims Committee to consider claims of this character and to recommend to the Crown the exercise of its bounty where the claims were well founded. It may be remarked that although Judge Cator denied that the Prize Court had jurisdiction to allow such claims he thought that "upon general principles of equity" the mortgagee in such cases had in the absence of appearance by the mortgagor a sufficient interest in the subject matter to justify his being heard upon the question, for example, whether the ship should be detained or confiscated and that in case it were condemned he was entitled to appeal against the decree of condemnation.

I Br. & Col. Pr. Cas. 257. See also Sec. 295 infra.

To the same effect see the Hamm and Apolda, No. 4, South Afr. Prize Court decisions, p. 51; the Rufidji (ibid., 77); and the Bendu, No. 10 (ibid., 99).

1

In the case of the Paneriellos 1 the Judicial Committee applying the rigorous rules relative to trading with the enemy felt obliged to uphold the condemnation of goods belonging to an alleged subject who was guilty of no conduct which appeared to him to be illegal and whose claim was supported by equitable considerations. As to this their Lordships observed: "These, however, are considerations which, though weighty, can only be addressed to the clemency of the Crown. They cannot affect the judgment which a Prize Court, administering strictly the universal rule as it finds it, is bound to pronounce in the grave case of trading with the enemy."

Sec. 40. Belgian Jurisprudence. The Belgian Prize Council adopted substantially the same view in regard to the incompetence of a Prize Court to extend the doctrine of equity so as to redress hardships. Thus in the case of the Brussels,2 an English vessel, whose master, Captain Fryatt, had been shot by the Germans, which vessel had been recaptured by the Belgian naval forces, the Prize Council observed that in every case of capture there was a "governmental phase" where the captor state might show generosity toward a neutral or allied power, and a "contentious phase" such as existed in the present case where the prize tribunal had merely to decide whether the capture was legal according to the rules of international law, and "however great the regret felt by the Belgian Prize Council at being obliged to detain an allied ship which had become "illustrious" in the struggle against a common enemy, it could not in the present case depart from its mission and decide according to other principles than those of law, tempered according to the case, by equity." The vessel, although originally belonging to the subject of an ally, was therefore condemned.

It followed the same rule in the case of the Roelfina and dismissed the claim of an allied government (France) which was an insurer of property captured by the Belgian forces. It said: "However much regret the Belgian Prize Council must feel in being obliged to reject the claim of a friendly nation . . . which during the war has made the most noble effort for the triumph of the cause of civilization, while leaving to the Belgian government the care of giving effect to its claim, it (the Prize Council) is duty bound, upon pain of failing in its mission, to limit itself, to judging according to the law."

1IV Lloyd 306; II Br. & Col. Pr. Cas. at p. 57.

247 Rev. de Droit Int. et de Lég. Comp. (1920), p. 135.

Moniteur Belge, 1920, p. 136.

Sec. 41. Jurisprudence of Other Countries. The supreme Prize Court of Roumania adopted the same view in the case of the Nicolae, a ship requisitioned against the will of the owner by the Russian Soviet authorities and recaptured by the Roumanian authorities.

It is said that the French Prize Council "tempers by considerations of equity." the règlements of the eighteenth century, but like the British Prize Court it too declared itself without jurisdiction to pass upon the claims of non-enemy persons who had made advances upon captured enemy cargoes (les créanciers gagistes). The Chinese Prize Court likewise held that it had no jurisdiction to pass upon the claims of a neutral firm that had furnished supplies to a captured enemy ship. The jurisdiction of a Prize Court, it declared, was limited solely to determining whether the ship or cargo should be condemned and that the claims of third parties against the ship for debts was a matter for the civil courts to judge.*

5

In the German case of the Kiew where the claimants attempted to demonstrate that it was in conformity with equity that the goods in question should be released to them, the Prize Court rejected their contention on the ground that it represented "a false point of view." "A Prize Court," it added, "has no jurisdiction to decide upon the ultimate fate of goods after they have been regularly captured. The sole question, the only one which is decisive in the present case, is whether the ship and goods were liable to capture in virtue of the law of prize in force. If this question is affirmatively answered, the legal conclusion follows with certainty that they are subject to confiscation. Reasons drawn from equity or expediency cannot change anything in the course of judicial procedure. In fact, moreover, no reasons of equity or political expediency could be found which would

Cited by Verzijl, op. cit., p. 32.

'De Boeck, De la Propriété Privée Ennemie, p. 374. This author quotes Portalis as saying in the celebrated case of the Statira that "en général les règlements de la course, qui ne partent qu' improprement le nom de lois, et qui sont eux-mêmes essentialement variables, pro temporibus et causis, sont toujours susceptibles dans leur application d'être tempérés par des vues de sagesse et d'équité," and that "les lois et les règles particulières doivent toujours être exécutées de la manière la plus conforme aux principes de la raison universelle, surtout dans les matières appartenant au droit des gens, dans lesquelles les législateurs se sont toujours glorifiés de n'être que les respectueux interprètes de la loi naturelle."

The Athena and Other Vessels, Fauchille, Jurispr. Franc. 457; also the Eir (ibid., 33).

The Albenga, Judgments of the High Prize Court of the Republic of China, pp. 16, 20, 25.

I Entsch. 241; Fauchille et De Visscher, Jurispr. All. 184.

lead to a denial in a case such as this of the right of capture of the ship or the seizure of the goods."

In the case of the Haelen1 the German Prize Court refused to allow a claim of the Belgian Relief Commission for the release of certain goods which were a part of an enemy cargo on an enemy ship which had forfeited the protection accorded to it for the transportation of supplies to the civil population of Belgium. The claim was held to be one over which the Prize Court had no jurisdiction, that belonging rather to the administrative authorities.

III

RELATION OF PRIZE COURT TO OTHER COURTS

Sec. 42. Prize Court Ousts Jurisdiction of Other Courts in Matters of Prize. The principle that a Prize Court has exclusive jurisdiction in matters of prize and that its jurisdiction overrides that of the other courts was emphasized by the Prize Court for Egypt in the case of the Lützow (No. 6).2 In this case. goods belonging to a Japanese firm had been seized and released to the claimants, whereupon the latter brought an action for damages against a bonded warehouse company in whose custody they had been placed as bailees or agents for the marshal. The defendants denied that the Prize Court had jurisdiction and maintained that the mixed tribunals alone were competent to hear the case. The Prize Court overruled the objection and held that the action being one "concerning merchandise captured in the ports of Egypt" the Prize Court alone had jurisdiction to hear and determine it." Adverting to the work of the Egyptian Prize Court and the validity of its establishment, Judge Grain said:

“H. B. M. Prize Court has been established at Alexandria and sitting almost daily for nearly four years, and somewhere about 1,200 cases have been heard before the Court and adjudicated upon, and I think I may say without exaggeration that members of practically every nation in the world

1II Entsch. 177.

III Br. & Col. Pr. Cas. 329.

But compare the case of the Sturmvogel and see Adler (So. Afr. cases 29), where a civil court issued an attachment against an enemy ship and gave judgment to lien holders for a sum due for coal, provisions and money advanced for dock dues, etc. The claimants then applied to the Prize Court to order the payment of the judgment out of the proceeds of the sale of the prize.