But in The Tinos, etc., by the German Supreme Court to be released. Scott, 555, a number of German and Austrian vessels lying in Greek territorial waters were in September, 1916, seized by the Allies. They were condemned by the French Prize Court on the ground that they had violated Greek neutrality by using Greek ports and waters as bases for supplies and naval operations, and had made such waters the theatre of their hostilities. The Bangor, 2 B. & C. P. C. 206, owned by a Norwegian firm, flying the Norwegian flag, and commanded by a Norwegian master, was fitted and manned from New York for the purpose of supplying German warships with coal, stores and electric gear. She was captured by H.M.S. Bristol in the middle of the Strait of Magellan, where the strait is seven miles wide. Upon the assumption, however, that the Bangor was, in fact, captured within the territorial waters of Chile, Evans, P., asked: (1) Could the owners of the vessel, who were ex hypothesi to be treated as enemies, rely on the territorial rights of a neutral State and object to the capture? (2) Must the objection to the validity of the capture come from the neutral State alone? No proposition in international law," declared the learned President, "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.' He referred with approval to the proposition as stated in The Sir William Peel, 5 Wall. 517, neither an enemy nor a neutral acting the part of an enemy, can demand restitution of captured property on the sole ground of capture in neutral waters.' Assuming that H. C. XIII. 1907, was binding, it was, he said, "only directed to the relations between neutral Powers and belligerent Powers, and was only intended to apply to questions arising between neutral Powers and belligerent Powers as such. Its provisions were not intended to deal with any question between belligerents and did not affect the rule relating to capture in territorial waters of a neutral State as between two belligerent Powers, where the neutral State did not intervene. But this limitation will not apply where the prize illegally taken was neutral; in which case the violation of neutral territory may be set up and damages claimed, irrespective of any complaint on the part of the State whose territory was violated. So, the Sir William Peel --a British vessel captured during the civil war by a United States cruiser in Mexican waters-was restored by the United States Court without any claim on the part of Mexico; and although costs and damages were refused by the Court, yet at a later stage damages were awarded by a Joint Commission to which the question had been referred (u). In the case where no restitution is made by the State or Courts of the captor, the injured belligerent has, as we shall see, certain alternative remedies against the neutral State (x). As between the parties to the Hague Convention XIII. 1907, moreover, an obligation to liberate (u) Moore, Int. Arb. iv. 3935. (x) Infra, p. 417. both prize and crew, on the demand of the neutral Power, is now specifically imposed on the State of the captor (y). But if an enemy ship is captured within neutral territorial waters under a bona fide mistake as to the exact line of the three-mile limit, and the neutral Government makes a "territorial claim," she must be restored, and the neutral Government is entitled to be reimbursed the costs and expenses incurred in connection with taking delivery of the ship in the captor's country. The Dusseldorf, 3 B. & C. P. C. 664, a German vessel, was captured on the 22nd of February, 1918, by H.M.S. Tay & Tyne, about 200 yards within Norwegian territorial waters. On the 30th of August, the captors issued a writ in prize claiming condemnation of ship and cargo. The Norwegian Consul-General in London, on behalf of the King of Norway, entered an appearance and claimed (1) delivery up of the Dusseldorf and her cargo or its proceeds, (2) the cost of removing her to Norway, (3) the costs and fees payable to the Marshal of the Prize Court, and (4) the vessel having been requisitioned by the British Government pendente lite, an account of the profits made by the Crown from the use of the ship, or, alternatively, for payment of a reasonable sum for her use. Lord Sterndale, P., ordered the release of the ship and cargo but refused costs or damages. From the latter part of the order the Consul-General appealed. In delivering the opinion of the Judicial Committee, Lord Sumner said their Lordships considered the error of judgment by the commander of the Tay & Tyne to have been very pardonable, and that the sovereignty of Norway had suffered the minimum of prejudice from this unintentional violation. In the vessel herself and her cargo, the Norwegian Government had neither right, title nor interest, nor had they ever even possession. The German owners had all the right and interest, and in the absence of any treaty or convention, they could neither come before the Court directly as claimants, nor could they be allowed to do indirectly what is directly incompetent. Indeed, as against them, the capture was good, being the capture of enemy property; and the "claim of territory "is one which is available to the territorial Sovereign only, and not to the private shipowner. That disposed of the fourth claim for profits obtained from requisitioning the ship. Outside these proceedings the Norwegian Government had suffered no pecuniary loss or disadvantage. A Court of Prize was not a disciplinary tribunal for officers of H. M. Navy charged with the correction of errors committed by them while discharging their duties. A claim for amends for an invasion of territorial sovereignty should be made through the usual diplomatic channels. For the illegal capture of the ship damages could not be awarded. But since the ship ought not to have been seized at all, the true claim was for a restitutio in integrum so far as the Government of Norway were concerned. This involves the payment of the expenses of returning the vessel to Norway. But the claim for the repayment of the Marshal's fees, etc., rested on a different footing and must be rejected. The vessel had come regularly into the custody of the officers of the Court, and but for the requisition, which was also a regular proceeding, would have remained throughout in its (y) See Art. 3, p. 422, infra. charge, and so would have had the benefit of care and protection, which would ensure to enhance the vessel's value or avert depreciation. The costs, however, were properly charges on the property itself and must be discharged by those to whom the vessel is delivered up. But when an enemy vessel is captured within territorial waters under a bona fide mistake, and subsequently destroyed on reasonable grounds, restitution will not be granted. The Valeria, 3 B. & C. P. C. 834; [1921] A. C. 477, a German vessel, was captured by a British armed trawler, in the honest belief that she was outside Norwegian waters. Owing to bad weather she had to be abandoned, and as she was a danger to navigation her crew were taken off and she was sunk. Upon the claim of the Norwegian Government for restitutio in integrum, it was held by the Judicial Committee that the captors, by the seizure in neutral territorial waters, did not thereby become insurers of the prize against all risks and in all events for the benefit of the neutral Sovereign. The only wrong which could be vindicated was the wrong to the sovereignty of the King of Norway. It was impossible to restore the ship, but neither the King of Norway nor the German owners had any proprietary interest in the vessel or any claim to its value. The appeal was dismissed. In The Pellworm, 3 B. & C. P. C. 702 and 1053, four German merchantmen drifted within Dutch territorial waters before their capture was completed by a British flotilla. They were requisitioned by the British Government, and two were sunk by German submarines. The Dutch Government claimed restitution of the two survivors and compensation for those lost, together with damages and costs for all. Following the principles laid down in The Valeria that the seizure in its territorial waters did not confer any proprietary right upon the neutral Government, Duke, P., refused the claim for compensation for all the vessels, since upon requisition they became vested in the Crown. The sinking of some of them was irrelevant. Neither the claimants nor the owners were barred by it in respect of a claim upon the funds which resulted from the requisition, since neither of them was an actor in the lawless transactions by which the ships were destroyed. Nor could the claim for use of the ships be entertained, since the claimants had no property of their own in respect of which such a claim could arise. Apart from the Treaty of Versailles, 1919, restitution in value by payment of the appraised value of the ships would have been decreed to the claimants for the use of their respective owners, but by Art. 297 of that Treaty Germany ceded to the Allied Powers all property and interests of German subjects within their respective territories. Upon appeal to the Privy Council, their Lordships held that "changes in the ownership of the vessel cannot defeat the claim of territory, which is independent of ownership but that on the other hand where there has been no intentional misconduct or affront on the part of the captors and the loss of the vessel in question without default on the part of those in control of her, has made her return in specie impossible, the payment of damages to the claimant is a wholly inappropriate remedy." But for the requisitioning, the vessels would have been restored by the Court before the Treaty of Versailles. Consequently, the survivors ought to be returned to Dutch waters, whatever the present rights of property or possession might be, and the obligation to return applied to the appraised value of those lost which otherwise would be a profit growing out of their own wrong. If the Dutch Government thought fit, they might restore them to the British Government rather than to their German owners. (ii) DUTIES INCIDENT THERETO. THE GENERAL ARMSTRONG. [Moore, Int. Arb. ii. 1071; Ortolan, Diplomatie de la Mer, ii. 300; Case.] ON the 26th September, 1814, during war between Great Britain and the United States, the General Armstrong, an American privateer under the command of Capt. Reid, was lying in the Portuguese harbour of Fayal, in the Azores. On the evening of that day a small British squadron under Commodore Lloyd also put into that port. On the night of the 26th certain boats from the British squadron approached the General Armstrong; whereupon those on board the latter, after hailing the boats and summoning them to haul off, immediately fired upon them, with the result that two men were killed and several wounded. It was alleged by the captain of the privateer that these boats were "well manned and apparently as well armed "; but this was denied by the British commander, who charged the privateer with an unprovoked attack and violation of the neutrality of the port. It was not until after this engagement that any appeal for protection on behalf of the privateer was made to the local authorities. The latter thereupon communicated with the British commander, and protested against any resumption of hostilities in a neutral port. In reply they were informed that inasmuch as the General Armstrong had been the first to violate the neutrality of the port, a single small vessel would be told off to take her, but that if hostilities were encountered from the castle, then the whole squadron would treat the town as hostile. Accordingly, on the following day, a small brig belonging to the English squadron took up her position near the General Armstrong, and attacked her; with the result that the latter was ultimately abandoned and destroyed by her crew, who succeeded in escaping to the shore (2). The United States Government subsequently made a claim for compensation against Portugal for breach of duty in allowing the General Armstrong to be captured in neutral territory; but this was resisted by Portugal on the ground that the American vessel had herself engaged in belligerent operations. After much correspondence the affair was, in 1851, submitted to the arbitration of the President of the French Republic, who, in the result, found against the claim. The Award.] The arbitrator, after reciting the facts, and adverting more especially to the doubts which existed as to whether the boats first fired on by the General Armstrong were provided with arms or ammunition, proceeded as follows: "Considering that the report of the Governor of Fayal proves that the American captain did not apply to the Portuguese Government for protection until blood had been shed . . . that the Governor affirms that it was only then that he was informed of what was passing... that he several times interposed with Commodore Lloyd with a view to obtain a cessation of hostilities . . . that the weakness of the garrison . . . and guns armed intervention on his part impossible; in this state of things that Capt. Reid, not having applied in the beginning for the intervention of the neutral Sovereign, and having had recourse to arms for the purpose of repelling an unjust aggression of which he claimed to be (a) the object, thus failed to respect the neutrality of the territory of the foreign Sovereign, and released that Sovereign from the obligation to afford him protection by any other means than that of a pacific intervention; . . . from which it follows that the Government of Her Most Faithful Majesty cannot be held responsible for the results of a collision, which took place in contempt of her rights of sovereignty and in violation of the neutrality of her territory and without the local officer . . . having been requested in proper time . . . to grant aid and protection . ; therefore, (z) During the engagement, the crew of the privateer are stated to have fired langrage, including nails and knife blades, inflicting excruciating torture on those who were wounded: see Halleck, i. 563, n. The defence rendered all considering of the privateer was also aided by her countrymen from the shore who fired on the assailants from the protection of the adjoining rocks. (a) The word used is prétendait. |