and American authorities for the view that while the condemnation of a prize in a neutral port may be "irregular it is nevertheless clearly valid." 1

Sec. 68. The Same. Case of the "Appam."2 Professor De Visscher in his defense of the claim asserted by the Belgian Prize Council to exercise jurisdiction over German ships interned in Dutch waters, referred to the case of the Appam as another and more recent instance in which a Prize Court claimed and exercised jurisdiction over a prize while it was lying in a neutral port. The Appam was an English merchantman which had been captured by a German warship and taken into Newport News, Virginia, where the German government claimed the right to bring and hold it in pursuance of the treaty of 1799 (renewed in 1828) between the United States and Prussia. Upon its being libelled in the United States District Court at Norfolk by the original British owners for the purpose of obtaining its restitution, the German government protested on the ground that the American court was without jurisdiction to entertain the suit and that it being a case of prize the German Prize Court alone was competent to deal with the vessel. The German ambassador in a note to the American Secretary of State adverting to the terms of the treaty of 1799 which provided among other things that prizes should not be "put under legal process where they come to and enter the ports of the other party" added: "besides, the Appam flies the naval flag of and belongs to the German government, and therefore the possession of the captors in a neutral port is the possession of their sovereign. The sovereign whose officers have captured the vessel as a prize of war remains in possession of that vessel and has full power over her. The neutral sovereign or its court can take no cognizance of the question of prize or no prize and cannot wrest from the possession of the captor a prize of war brought into its ports." The German contention was evidently based on the assumption that German title to the prize had already been acquired by the

his judgment that the circumstances being entirely special, the case must not be considered as a precedent for the condemnation of a prize brought into a neutral port. "The rule is," said Dr. Lushington, "that the prize shall be brought into a port belonging to the captor's country, and the Court must guard itself against allowing a precedent to the contrary to be established." See also the observations of Dr. J. B. Scott, 10 Amer. Jour. of Int. Law (1916), p. 829.

Phillimore, International Law, Vol. III, Sec. CCCLXXII.

For further discussion of this case see Secs. 14, 24 supra, and Sec. 173 infra.

Text in Spec. Supp. to 10 Amer. Jour. of Int. Law (1916), p. 391.

mere fact of capture and without a decision of the Prize Court of the captor's country. It also apparently proceeded on the theory that the action in the American court was in effect a proceeding in prize; in fact, it was not such, but a proceeding in admiralty to determine not the question of the legality of the capture but whether the German captor had a right under the treaty with the United States and under the general principles of international law, to bring the prize into an American port and to deposit it there as spoils of war.

Sec. 69. View of the American Supreme Court. The District Court held that the German captor had no such right and that the Court in the exercise of its admiralty jurisdiction was competent to hear the claim of the British owners and to order the restitution of the vessel to them, and this was accordingly done. The judgment of the District Court was affirmed, upon appeal, by the Supreme Court.1

The Court apparently considered that title to the prize did not pass to the captor by the mere fact of capture, as the Germans claimed, and could not pass until the legality of the capture had been affirmed by the decision of a Prize Court of the captor's country and that such a decision could not be legally taken by a German Prize Court while the prize was lying in a neutral port.

In the meantime, nevertheless, Prize Court proceedings for the condemnation of the vessel had been instituted in the German Prize Court and on May 11, 1916, the Imperial Prize Court at Hamburg rendered a decision condemning the Appam as a good and lawful prize. The Prize Court evidently assumed that it had rightful jurisdiction to pronounce the condemnation of the prize although it was lying in a neutral port and did not discuss at all the question of jurisdiction.

This decision was rendered nearly a year before the decision of the United States Supreme Court, but the fact that the German Prize Court had taken jurisdiction and condemned the ship did not deter the United States court from proceeding with the case. On the contrary, it expressly denied that the German Prize Court had exclusive jurisdiction, and as stated above, the American court apparently did not recognize that the German Prize Court could lawfully exercise jurisdiction at all to condemn

243 U. S. 124. Text of the decision also in 11 Amer. Jour. of Int. Law (1917), pp. 443 ff.

English text of the decision in 11 Amer. Jour. of Int. Law (1917), p. 872.

a prize lying in a neutral port.1 As to the first mentioned point the Supreme Court said: "Nor can we consent to the insistence of counsel for appellant that the Prize Court of the German Empire has exclusive jurisdiction to determine the fate of the Appam as lawful prize. The vessel was in an American port and under our practice was within the jurisdiction and possession of the District Court which had assumed to determine the alleged violation of neutral rights, with power to dispose of the vessel accordingly. The foreign tribunal under such circumstances could not oust the jurisdiction of the local court and thereby defeat its judgment."

The decision of the Supreme Court has been generally approved by American authorities but naturally German writers disapprove it.3

2

Compare the observations of Dr. J. B. Scott, 10, ibid., pp. 826, 829. See, among others, Scott's article cited and Coudert, The Appam Case, 11 Amer. Jour. 302.

See an article entitled The Case of the Appam and the Law of Nations, by Dr. Arthur Burchard, 11, ibid., p. 270, who argues that the United States courts had no lawful jurisdiction of the case because there was no breach of neutrality; that the decision as to restitution involved passing on the legality of the capture; that the determination of this question belonged only to the Prize Court of the captor's country and that the British claimants were bound to await the decision of the German Prize Court and in case they were dissatisfied with it, to leave it to their government to present their claims through the diplomatic channel to the German government.

CHAPTER III

PRIZE COURT PROCEDURE

I

SOURCES OF RULES OF PROCEDURE

Sec. 70. English Rules. Unlike the substantive law of prize, that is, the law which defines the causes for which belligerents may capture, destroy, detain or confiscate ships and cargoes of the enemy or of neutrals, the law of the procedure of the Prize Courts has been, in large measure, codified. It is found in special laws enacted by the legislature or in decrees or ordinances issued by the chief of state in pursuance of his inherent prerogative or as a result of authority conferred upon him by legislative delegation. In Great Britain the matter is dealt with, in part, by the "Naval Prize Act, 1864," the "Prize Courts Act, 1894," the "Prize Courts (procedure) Act, 1914," amending the Act of 1864, the "Imperial Prize Courts Act, 1915" and the "Prize Court Rules, 1914," amended by Orders in Council in September and November, 1914, and in February, March and April, 1915. The Prize Court rules of 1914 embrace 289 rules with appendices containing forms and tables of fees and costs.2 They were made by the King in Council in virtue of authority

'Lord Parker observed in the case of the Südmark (III Br. & Col. Pr. Cas. 77) that the procedure of prize courts "has always been recognized as a matter of municipal as opposed to international law." In the Zamora (IV Lloyd at p. 50) Sir Samuel Evans remarked that "matters of practice in proceedings are not of international concern; and are not, and cannot be, regulated by uniform international principles or procedure to be applied in the courts of all countries." In the case of the Corsican Prince (I, ibid., p. 186), Sir Samuel observed that "the Prize Court Rules have been framed for this Court and have been made under the Prize Court Act, 1894, and not by the Rule Committee which frames the rules for the High Court. 'Texts of these acts and of the Prize Court Rules of 1914 may be conveniently found in Tiverton, The Principles and Practice of Prize Law (London, 1914), Appendices I, II & III, and in the supplement thereto. In 1908 Prize Court Rules codifying the old practice of the High Court of Admiralty in prizes and containing some additions were promulgated in accordance with the provisions of the Naval Prize Act of 1894, but they were never in force in time of war and were superseded by the Prize Court Rules of 1914.

conferred by the Prize Court Act of 1894. Lord Parker pointed out in the case of the Zamora that the Prize Court rules, so far as they relate to procedure and practice have, therefore, statutory force and it is from the statute and not from the executive that they derive their validity. As such they are binding upon the Prize Court. But an order issued by the Crown in Council may deal with other matters than rules of procedure or practice; its prescriptions can only be regarded as rules of procedure when they prescribe the course to be followed by the judge; if the effect is not merely to give directions but to alter the substantive law administered by the Prize Court it is not binding upon the Court since the Court "must deal judicially with all questions which come before it for determination and it would be impossible for it to act judicially if it were bound to take its orders from one of the parties to the proceedings." 2

In the case of the Kim and other vessels the contention was put forward by the claimants that the Order in Council of October 29, 1914, modifying Article 36 of the Declaration of London relative to continuous voyage, introduced not merely a new rule of procedure but a modification of the substantive law and as such was not binding upon the Prize Court. Sir Samuel Evans admitted that if the Order had affected the substantive rights of neutrals it would not be binding upon the Prize Court; but, in his opinion, it had no such effect, its purpose being merely to alter the practice as to evidence and methods of proof by adding certain presumptions contained in Article 34 of the Declaration of London. It was not therefore in violation of any rule or principle of international law. In the case of the Zamora Sir Samuel stated that matters of procedure and practice were "a domestic affair, in which no foreign neutral or enemy has any voice or right to interfere." If his Lordship meant to affirm that the substantive rights of claimants are not affected by rules of procedure and evidence his view cannot be accepted.3

Order 45 of the Prize Court Rules of 1914 declares that in all cases not provided for by the rules "the practice of the late High Court of Admiralty of England in prize proceedings shall be followed, or such other practice as the president [of the Prize Court] may direct." In pursuance of this order Sir Samuel Evans

See also the observations of Sir Samuel Evans in the same case (IV Lloyd at p. 50) to the effect that the Prize Court Rules have the force of an Act of Parliament, since they are made "under statutory powers." Lord Parker in the Zamora (ibid., at p. 89).

Compare Pyke, 32 Law Quar. Review, 64, 166.