that he did not think the decision of Sir Samuel Evans in the case of the Jeanne was exactly in point. He thus stated the general rule: "The general rule is that the carriage of contraband forfeits the right to freight; but there is a higher rule than that, and it is that the Court must do justice. I have to see in this case whether there is any ground of justice, either upon fact or upon presumption, upon which it ought to be held that this shipowner has forfeited his claim to have freight for these goods that is, has forfeited the right to come to the Court, and to ask the Court, upon recognising his innocence of complicity in a contraband transaction, to direct that he shall receive payment of freight. I put the power of the Court no higher than that. I do not conceive that there is—indeed I conceive that there is not-power in the Court to award freight to a shipowner who is knowingly a party to a contraband transaction. On the other hand, I conceive that there is power in the Court to award freight to a shipowner who unknowingly carries contraband, and who is not a party in intent to a contraband transaction." 1 On the finding that the shipowner's transactions were entirely innocent and that he had no knowledge of the contraband nature of the cargo and that the captor had derived advantage from the carriage, Sir Henry allowed his claim for freight. On appeal the Judicial Committee approved the judgment of the lower court as to its discretionary power to allow freight in exceptional circumstances for the carriage of contraband goods, but it disagreed with the lower court on its finding that the circumstances in this case justified the allowance of freight. The judgment on this point was accordingly reversed. Their Lordships held that the matter of whether the shipowner was entitled to freight ought not to turn on his ignorance or knowledge of the character of the cargo and still less should proof of his ignorance be treated as a title to a decree for freight, otherwise "the owner of a general ship would rarely lose his freight, for captors could seldom hope to bring such knowledge home to him, considering how numerous and often how small are the separate parcels shipped, and in what haste they are often taken aboard." Their Lordships added: "In cases of continuous voyage a similar difficulty would arise even for entire cargoes, and such a rule would, in the case of cargoes wholly or mainly contraband, leave no middle term between forfeiture of the ship and release of it with an allowance of freight. It is not too much to require that shipowners should know both the contents of belligerents' proclamations as to contraband and the descriptions of the goods entered in their own manifests. How it might be, if contraband articles were fraudu1X, ibid., 212; III, ibid., 943. lently concealed in seemingly innocent packages or disguised by the shippers under a plausible misdescription, need not now be decided. The shipowner always has the remedy in his own hands, if he requires his freight to be prepaid, and the general practice in the late war to do so shows how available such a remedy is." The Prize Council of France was in many cases unable to allow claims for freight where the claimants were entitled to it, for the reason that different from the British Prize Courts, it had jurisdiction over such claims only when they were accessory to a decision on the question of the validity of the capture.1 Thus where a neutral ship was diverted to a French port and the contraband cargo seized, after which the vessel was authorized to proceed, the Council was incompetent to pass on the claims of the shipowner for damages or freight. The remedy of the claimant in such a case was petition to the minister of the marine. But where there had been an actual capture and the Prize Council was called upon to judge the question of the validity of the capture, it was competent to hear accessorily thereto claims for freight. In such cases where goods on a neutral vessels were condemned as contraband, the Prize Council refused as did the British Prize Council to allow freight to the shipowner.3 But where the goods had been released or the owners reimbursed for their value, the Council allowed freight.* Sec. 482. Claims of Interested Parties Other Than Owners. In several cases claims were made by interested parties for freight paid by them in advance to the shippers in order to obtain delivery of the goods. In the case of the Clan Urquhart," where goods consigned to a house in Germany, shipped on a British vessel were pledged to British merchants who paid freight to the shipowners, their claim for repayment of the freight out of the goods, which had been condemned, was disallowed by Sir Samuel Evans. The claimants, he thought, were aware that at the time they paid the freight, which was a month after the outbreak of the war, the goods were destined to Germany; they paid it at their own risk and they had no lien or claim against the captors. Their only remedy was to recover from their German customers by suit after the close of the war. In the case of the Maningtry," where goods on a British ship 1 Supra, Sec. 58. See, among others, the cases of the Franc. 27) and the Fortuna, ibid., 46. The Atlas No. 3, the council of state Rev. Gén. (1920), Jurispr. 6. Jiul No. 1 (Fauchille, Jurispr. IV Lloyd 202; I Br. & Col. Pr. Cas. 497. were condemned as enemy property Sir Samuel held that persons who had voluntarily paid the freight for their own purposes were not entitled to reimbursement from the captors, but that when it had been "honestly paid" on condemned cargoes which would have had to bear the expense of freight, if unpaid, they were entitled to reimbursement, if in the circumstances the Court considered it just and equitable. In this case British bankers, holders of the bills of lading, who had innocently paid a portion of the freight in ignorance of the fact that the cargo had already been seized as prize were held to be entitled to reimbursement out of the proceeds of the condemned cargo. But in the case of the Bilbster,1 decided the same day, the same claimants were denied reimbursement of freight both as against the shipowners and out of the proceeds of the condemned cargo. Likewise in the case of the Kwango 2 Sir Samuel Evans allowed a claim of British pledgees for the repayment of freight out of the proceeds of a cargo carried on a Belgian ship and condemned as enemy property. In the case of the Anastassios Koroneos,3 where before the outbreak of the war goods were shipped by Turkish merchants on a German vessel consigned to sales agents at Malta, but which in consequence of the outbreak of war deviated to a neutral port where the goods were trans-shipped and forwarded by a Greek steamer to Malta and subsequently condemned, the Prize Court of Malta held that while the owners of the Greek ship were entitled to freight for the carriage of the goods to Malta, their claim for freight paid to the German shipowners in order to obtain the release of the goods, could not be allowed. No claim whatsoever, said the Court, for disbursements made with regard to enemy goods could be recovered in prize proceedings. The judge added: "I am aware that a certain relaxation of this principle is now admitted in favour of British or non-enemy bankers or subjects who disburse money to obtain goods on which they have a lien, but the present claim is prima facie an attempt on the part of a neutral company to save, not only the freight due to an enemy ship, but to give the enemy a sum over and above the amount due. "The National Steam Navigation Co. of Greece had no lien on the goods, and no interest in the matter except that it was entrusted by the owner of the goods, or by the Deutsche Levante Linie, to carry out the contract which that company was unable to perform." IV Lloyd 156; I, ibid., 507 (note). 'II, ibid., 194; I, ibid., 519. 'II, ibid., 194; I, ibid., 519. II CLAIMS FOR INDEMNITIES ON ACCOUNT OF SEIZURES IN Two classes of claims under Sec. 483. Claims of Owners. this head came before the Prize Courts during the late war: (1) claims by the owners of or other persons interested in the ship or cargo, and (2) claims by neutral governments for damages on account of the infringement of their neutrality. No claims of the first class appear to have ever been allowed in any case. Only two such claims appear to have come before the German Prize Courts but they were disallowed for the reason that they had not been presented within the period prescribed,1 or for the reason that the seizure was held not to have actually taken place in neutral waters.2 In the case of the Bangor Sir Samuel Evans disallowed a claim for restitution and for costs made by the owners of a vessel flying a neutral flag which was captured in the territorial waters of Chile (at least the Court was willing to assume that it was captured in such waters) while engaged in carrying coal and other supplies to German warships. The owners of the vessel, he said, could not rely upon the fact of capture in neutral waters in support of their claim that the capture was illegal and that they were therefore entitled to restitution and costs. Objection to capture in neutral waters, said Sir Samuel, could only be made by the neutral power whose rights had been violated by the capture. "No proposition in international law," he added, "is clearer or more surely established, than that a capture within the territorial waters of a neutral is, as between enemy belligerents, for all purposes rightful; and that it is only by the neutral State concerned that the legal validity of the capture can be questioned. It can only be declared void as to the neutral State and not as to the enemy." Regarding the contention of the claimants that this well-established rule of international law had been modified by the 13th Hague Convention of 1907, Sir Samuel said The Ambiorix (I Entsch. 170; Fauchille et De Visscher, Jurispr. All. 131. In this case the Court also emphasized that it was not proven that the seizure had actually taken place in neutral waters. The Guldborg (ibid., 280; ibid., 215). 'V Lloyd 308; II Br. & Col. Pr. Cas. 206. 'Sir Samuel cited in this connection, among others, the cases of the Anne (3 Wheat. 435), the Sir William Peel (5 Wall. 517), and the Adela (6 Wall. 266). it was clear that this Convention dealt only with the relations between belligerent and neutral powers, and not with questions arising between belligerents; it did not herefore affect the rule relating to capture in the territorial waters of a neutral State, as between two belligerent powers, when the neutral State did not itself intervene. Sec. 484. Claims of Neutral Governments. Claims of the second type, namely those made by neutral powers for damages on account of seizures made in their territorial waters, were considered at length by the British Prize Court and on appeal by the Judicial Committee, in several cases. In the case of the Düsseldorf Lord Sterndale released an enemy vessel which had been captured within the territorial waters of a neutral State (Norway) but refused to allow a claim of the neutral government for damages and costs for the violation of its neutrality, for the reason that the captor had merely miscalculated the distance from the Norwegian shore and that there had been no intentional violation of neutral rights. Counsel for the claimant maintained that the Norwegian government had not only to protect its own territory against violations of neutrality but that it might be held responsible to belligerents whose ships had been seized within its waters. Consequently, in order to protect itself, it must ask for a decision on the question of whether it was entitled to damages and costs. Lord Sterndale, relying on the decision of Lord Stowell in the case of the Twee Gebroeders,2 where it was held that damages and costs were not allowable to the neutral government when the capture took place in its waters as a result of misapprehension and mistake, denied the claim. The captor in this case, he thought, instead of deliberately violating the neutrality of Norway attempted to respect it but unfortunately made the mistake of calculating the three mile distance from the mainland instead of from an island. Upon appeal to the Judicial Committee, the decision of Lord Sterndale was reversed in part, their Lordships holding that while the Norwegian government was not entitled to anything in the nature. of damages for the wrongful seizure of the vessel in its waters, nor for the costs and fees of the marshal of the Prize Court in connection with the custody of the vessel, it was entitled to be reimbursed for the costs and expenses incurred in connection with the delivery of the ship in England and the taking of it IX Lloyd 1, 12; III Br. & Col. Pr. Cas. 466, 664. 2 3 C. Rob. 162 (1800). |