"When once the Prize Court has acquired jurisdiction over the principal cause, it will exert its authority over all the incidents. It will follow prize proceeds into the hands of agents or other persons holding them for the captors, or by any other title. . . . It may also enforce its decrees against persons having the proceeds of prizes in their hands, notwithstanding no stipulation, or an insufficient stipulation, has been taken on a delivery on bail; for it may always proceed in rem where the res can be found, and is not confined to the remedy in the stipulation; and in these cases the court may proceed upon its own authority ex officio, as well as upon the application of parties; nor is the court functus officio after sentence pronounced, for it may proceed to enforce all rights, and issue process therefor, so long as anything remains to be done touching the subject-matter. The Prize Court has also . . . exclusive authority as to the allowance of freight, damages, expenses, and costs in all cases of captures, and though a mere maritime tort unconnected with capture jure belli may be cognizable by a court of common law; yet it is clearly established that all captures jure belli, and all torts connected therewith, are exclusively cognizable in the Prize Court.' (Pp. 30-32.)"

Then reviewing the decisions and the opinions of text writers, Sir Samuel added:

"The Prize Court has constantly dealt with claims for freight and damages where ships or cargoes have been captured or seized, not only as between captors and owners, but also as between owners of ships and owners of cargo, and have adjudicated upon such claims whether the ship or cargo has been released, and when both ship and cargo have been released; and apparently no action involving questions in similar cases were brought in any common law court. And this is obviously for grounds solid in justice and convenient in practice, because the two courts administered two different codes or systems of law; the Prize Courts deal with claims in accordance with the Law of Nations, and upon equitable principles freed from contracts, which almost always cease to have effect upon capture or seizure, by reason of the non-appearance 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."

He observed, finally, that the Prize Court had its own special machinery (registrar, merchants, marshal, etc.) for dealing with such matters; consequently there were reasons of convenience as well as of law why the Prize Court should have jurisdiction of such claims.

Sir Samuel reaffirmed the principle here enunciated, in the case of the St. Helena.1 In this case the shipowners brought an action in a common law court (King's Bench division) for pro rata freight but the decision was against their claim. They thereupon resorted to the Prize Court, the jurisdiction of which

1IV, ibid., 289; I, ibid., 618.

the cargo owners contested on the ground that the matter was res judicata. Sir Samuel overruled the objection. He did not think that the King's Bench division had decided the exact question which he was asked to decide. The case there was an action upon a contract for a certain sum and the judge was not asked to decide upon principles which are applicable to cases of this description in the court of prize.

"The plaintiffs," he said, "did not appear before him and say, 'We are not entitled according to the common law-according to the municipal law-to anything at all, but we hope that you will apply the equitable principles which have been applied in the Prize Court and give us some sum in lieu of the full freight.' That application was never made, and the learned Judge never decided upon any such claim as that. Upon the claim which was made before him-a claim under the municipal law-he decided and pronounced judgment. The claimants now come here and say that there was no jurisdiction in the King's Bench Division which would entitle the learned Judge to deal with the matter upon the footing on which it ought to be dealt with in this Court. Therefore they say, 'So far as our present claim is concerned, we did not make it in the Court of King's Bench, and we could not do so because it had no jurisdiction to deal with such a matter.' In this Court I have jurisdiction to deal with it if it is a matter arising out of a seizure as prize, and I think it is perfectly clear, according to the evidence, not only that there was a seizure as prize of this cargo, but that such rights as the claimants have for the carriage of the cargo must be determined in accordance with the principles in prize."1

In the case of the Iolo 2 Sir Samuel again affirmed the jurisdiction of the Prize Court in respect to claims for freight on cargoes released. He said: "I have pointed out that, according to the authorities and practice of the court of prize, the jurisdiction of the court to deal with freight is not affected by the release of the cargo, even if it had been released upon the decision of The Court that it had been wrongfully seized, which was not the case in relation to this cargo."

3

Finally, the Judicial Committee in the case of the Lisa decided in 1923 affirmed that the Prize Court had jurisdiction to deal with all incidental matters arising out of the seizure of a cargo which was placed in the custody of the Court, notwithstanding that it had been subsequently released to the claimants.

The French Prize Council on the other hand declared itself in

Further consideration of this case, Sec. 478 infra. 'II Lloyd 336; I Br. & Col. Pr. Cas. at p. 301. 18 Lloyd's List Law Reports 29.

competent to hear and allow claims for freight on cargoes seized and released to the neutral owner. But it asserted jurisdiction in a case where English owners of a cargo on an enemy ship claimed freight which they had been obliged to pay after the release of the goods by the French state and where the loss of the freight claimed was the result of the seizure of goods the legality of which the Prize Council had to determine.3

2

The question whether the Prize Court has jurisdiction to allow freight on contraband goods condemned was decided in the affirmative by the Judicial Committee of the Privy Council, in the case of the Prins der Nederlanden. The Procurator-General contended that the Court had no such jurisdiction and that freight was never allowable for the carriage of contraband goods. Their Lordships held that the allowance of freight was a matter within the discretion of the Court and ought not to turn on the shipowners' knowledge or ignorance of the character of his cargo."

Sec. 57. The Same. Claims for Damages. In the case of the Wilhelmena (1923) Sir Henry Duke was called upon to decide the question whether the Prize Court had jurisdiction over a claim for damages instituted against The Procurator-General, for the alleged illegal seizure and detention of a neutral fishing trawler and its cargo, in view of the Public Authorities Protection Act, 1893, which allows actions against public officials only subject to certain specified conditions. The Procurator-General contended that he was protected against the action by the above mentioned. law and that consequently the Prize Court had no jurisdiction to hear the claim. Sir Henry held, however, that the Prize Court being charged with administering international law, the act in question did not prevent proceedings for damages being brought in the Prize Court even though they were not brought within the true limit fixed by the Act. Since the cargo had been. sold and the proceeds paid into the Court its jurisdiction had undoubtedly attached. In the course of his judgment Sir Henry, speaking of the purpose of the Naval Prize Act of 1864 and the effect upon it of the Act of 1893, said:

"That Act, with its various regulations as to things to be done in prize, no doubt imposes some statutory duties upon captors, as I have already indicated, as well as upon persons concerned in the matters of administra

'The Gorontalo, Fauchille, Jurispr. Franc. 73: and the Ogliastra, ibid., 82. The_Barmbek, ibid., 270. The Atlas, ibid., 39.

2

VI Lloyd 205; III Br. & Col. Pr. Cas. 943. 5 See further, Sec. 481 infra.

6

X Lloyd 371.

tion with which the statute deals. It does not, however, purport to deal with the substantive law of prize, the right of capture, and the relative interests of captor and claimant in captured goods. Sect. 55 of the Act indeed expressly provides that courts of prize shall as heretofore take cognizance of and judicially proceed upon any capture, seizure, prize or reprisal and hear and determine the same according to the course of admiralty and the law of nations. How and where an action or proceeding for breach of duty under the Act of 1864 may be judicially dealt with, it is not necessary to consider, though it may well be considered that prima facie such a delinquency falls to be adjudicated upon in a municipal court. At any rate, the statutory limitation upon such an action or proceeding which was expressed in the Act of 1864 is not a limitation upon a proceeding in prize, and the Act of 1893 does not in terms alter its character or extend its operation. Since the Naval Prize Act, 1864, did not introduce any limits of time for proceedings in prize, properly so called, and the Public Authorities Protection Act, which deals expressly with the limitation in that statute, does not in express terms extend its scope, and is not primarily or specifically an Act to alter the law of prize, I am satisfied that the Legislature did not intend to make, and has not by the Act of 1893 made, the drastic change in the law of prize which has been contended for on behalf of the Crown in this case."

Sec. 58. The Same. French Jurisprudence. The established doctrine in respect to French prize jurisdiction is that the Prize Council is incompetent to hear and determine claims for damages except where the decision is accessory to the judgment on the question of the legality of the capture. "To judge according to the law of nations," says Bardoux, "whether the capture is legal, such is the function of the council . . . if therefore controversies arise between different claimants relative to the ownership of the property captured, it is not for the council to decide the difference unless that is indispensable to determine the validity of the capture." This principle was definitely laid down. by the Prize Council in the cases of the Borussia and the Ludwig in 1870 and 1871.2 It will not, therefore, as the British courts will, entertain jurisdiction of a claim for damages independently of and apart from the main question of the validity of the capture. If such a claim is made the council must refer it to a designated tribunal of commerce to make the liquidation. Thus during the late war it declared itself incompetent to hear the claim of the owner of a neutral ship which had never been captured and which had been authorized after the debarkation of the cargo to continue its voyage,3 or the claim of a neutral for the

'Jurisprudence du Conseil des Prises 51; compare also De Boeck, De la propriété Privée Ennemie, p. 372. Texts in Barboux 52, 53. See, among others, the cases of the Insulinde, Fauchille, Jurispr. Franc. 21; the Atlas, ibid., 40; the Fortuna, ibid., 46; and the Jiul, ibid., 26.

expense of debarkation and discharge of captured goods which were subsequently released. The attempt to recover damages through petition to the Council of State acting in its contentious capacity where the claim was not accessory to the question of validity of capture resulted in failure, that body holding that it was incompetent to afford the relief sought.2

Sec. 59. The Same. German, Austrian, and Italian Jurisprudence. The German Prize Court did not, like the French Prize Council, refuse to take jurisdiction of claims for damages where the claim was not accessory to the main decision as to the legality of the capture. Thus it declared itself competent to hear and determine the claim of a Norwegian shipowner whose vessel had been seized and subsequently released by the prize office without the question of the validity of the seizure being brought before the Prize Court. In accordance with British prize jurisprudence it also took jurisdiction of claims for damages filed by owners of innocent cargoes which had been released without prize adjudication, where the ship transporting them had been seized.*

But it declared its incompetence to hear the claim of the owner of a ship and cargo wrongfully captured, for reimbursement of a sum advanced by him for expenses for the conservation of the ship and cargo; 5 and likewise also the claim of a neutral shipowner for losses occasioned by the taking of his vessel into a German port for the purpose of visit when the visit was not followed by capture and a claim for loss on account of the deterioration of the goods seized.' The incompetency of the Prize Court was even declared in the case of claims of the last mentioned character, when the loss was due to prolonged detention of a neutral ship which was finally released for lack of sufficient reasons justifying confiscation.8

6

The Prize Court of Austria-Hungary declared itself without jurisdiction to hear a claim for damages put forward by the master of a neutral ship in behalf of the crew and a claim for damages made by the neutral owners of a cargo, which had been

The Gorontalo, ibid., 72.

The Tamborah, Rev. Gén. de Droit Int. Pub., 1921, Jurispr., p. 6. The Norefos, I Entsch. 30; Fauchille et De Visscher, Jurispr. All., 23. Among other decisions to the same effect see the Hasenkamp, the Bertha Elisabeth and the Sydney Albert.

The Zaanstroom, I Entsch. 118; Fauchille et De Visscher, 99.

The Alfred Hage I, ibid., 25; ibid., 20.

The Bertha Elisabeth, I Entsch. 58; Fauchille et De Visscher, 46.

The Thorsten, I Entsch. 253; ibid., 192. To the same effect see the Batavier VI, the Norden and the Koningin Regentes.

The Bretland, II Entsch. 230.

The Kephallonia, Normal Verordnungsblatt, 14 Stück, 1917, p. 204.