Summary.

war; its value is usually capable of compensation in money, and may be protected by insurance; it is in the custody of men trained and paid for the purpose; and the sea, upon which it is sent, is res omnium, the common field of war as well as of commerce. The purpose of maritime commerce is the enriching of the owner by the transit over this common field; and it is the usual object of revenue to the power under whose government the owner resides.

"The matter may, then, be summed up thus: Merchandise, whether embarked upon the sea or found on land, in which the hostile power has some interest for purposes of war, is prima facie a subject of capture. Vessels and their cargoes are usually of that character. Of the infinite varieties of property on shore some are of this character and some not. There are very serious objections of a moral and economical nature to subjecting all property on land to military seizure. These objections have been thought sufficient to reverse the prima facie right of capture. To merchandise at sea these objections apply with so little force that the prima facie right of capture remains."

There is no distinction now to be made between capture at sea and seizure in port; and apart from the practice introduced by the declaration of Paris in favor of neutral vessels it does not matter in what ships the cargoes seized Order in Coun- or captured may happen to be. According to the order

cil 1665.

made in council, in 1665, as to the rights of the Lord High Admiral in former times, which are now the rights of the King in his office of admiralty, "all ships and goods coming into ports, creeks, or roads of England or Ireland, unless they come in voluntarily on revolt or are driven in by the King's cruisers," belonged to the lord high admiral, and now belong to the Crown, and according to Lord Stowell, "Usage has construed this to include ships and goods already come into ports, creeks, or roads, and these not only of England and Ireland, but of all the dominions thereunto belonging"; see the Rebeckah.23 Enemy goods It has never been urged that enemy goods are free from capture or seizure if they happen to be in British ships.

in British ships.

This is, no doubt, the reason why there are no reported judgments upon the point, but if decisions of prize courts are desired to show that enemy cargoes in British ships have been captured, reference can be made to the Con

23 (1799) I. C. Rob. 227.

queror 24 and the Mashona,25 and the Journal of Comparative Legislation, 1900, page 326. See also The Cargo ex Emulous, sub nomine Brown v. The United States,"" for the opinion of Story J. in similar cases.

26

As to the suggestion that the right of seizure or capture of enemy property carried as cargoes in British ships no longer exists after the declaration of Paris, it is obvious that the declaration only modified or limited the right in favor of neutrals for the benefit and protection of the commerce of neutrals and in the interest of international comities, and did not in any other respect weaken or destroy the general right.

American doc

It is well known that the United States of America trine." refrained from acceding to the declaration of Paris because they desired that all property of private persons should be exempted from capture at sea-to which most other States have always refused to agree.

And in practice what would become of such cargoes? A British ship could not, in times of war, carry it or hand it over to the enemy either directly or through any intermediary, as it is not permitted to her to have any intercourse with the enemy.

In my view it is abundantly clear that enemy goods carried in British vessels are subject to seizure in port and capture at sea in times of war.

As the cargo has been sold, the order of the court will be for the payment out of the proceeds to the claimants. The ATTORNEY GENERAL. I ask for a reasonable time for appealing.

The PRESIDENT. Certainly. Stay of proceedings for three weeks, and, if notice is given for appeal, stay of proceedings will be till the hearing of the appeal.

THE "MARIA."

IN H. B. M. PRIZE COURT FOR EGYPT.

March 17, 1915.

1 Trehern, British and Colonial Prize Cases, 259.

case.

Claim for condemnation of the Turkish sailing ship Statement of the Maria, a vessel of 27 tons engaged in general coasting

24 (1800) 2 C. Rob. 303.

25 (1900) 10 Cape Times L. R. 163.

25 (1813) 1 Gallison, 563.

(1814) 8 Cranch, 110.

Hague Conventions VI and XI.

Decision.

trade, which was seized at Alexandria shortly after the outbreak of war between Great Britain and Turkey on November 5, 1914.

GRAIN, J.: I am of opinion that counsel who appears on behalf of the master and owner of this vessel, the sailing ship Maria, has not been able to show any cause why she should not be condemned. He admits that she does not come under Convention VI or XI of The Hague Conference, 1907, as although Turkey was a party to that conference, and the conventions were signed by her diplomatic representative, they were never ratified by the Sultan of Turkey. But he submits that she comes under an established rule of law that small coasting vessels are exempt from capture and confiscation, and he quotes the judgment of Sir Samuel Evans in The Berlin (ante, p. 29; [1914] p. 265), in which he states his opinion "that it has become a sufficiently settled doctrine and practice of the law of nations that fishing vessels plying their industry near or about the coast * * * are not properly subjects of capture in war so long as they confine themselves to the peaceful work which the industry properly involves."

I am of opinion that this dictum applies merely to small fishing boats belonging to men who are earning their livelihood and supplying the food of the small communities on the coasts. The vessel now before me is a general trading vessel of 27 tons, carrying on the general trade of the country, and, as The Hague conventions do not apply, is liable to capture and confiscation. This ship is therefore an enemy ship lawfully captured, and the order of the court is that she be confiscated and sold. 23

THE "PAKLAT."

Supreme Court of Hong-Kong. In prize, April 14, 15, 1915.

1 Trehern, British and Colonial Prize Cases, 515.

CAUSE FOR CONDEMNATION OF ENEMY SHIP AS PRIZE.

On August 21, 1914, the Paklat, a German steamship of 1,657 tons belonging to the Norddeutscher Lloyd Linie, whilst bound from Tsingtau to Tientsin with women and children refugees, was captured by H. M. S. Yarmouth and brought to Hong-Kong as prize. The blockade of

28 See note, ante, p. 122.

Tsingtau was then imminent, and it was in fact besieged by the allied forces on August 27.

It was contended on behalf of the owners that the vessel, which, it was alleged, was going to be interned at Tientsin to be used for the housing of destitute refugees, was employed on a philanthropic mission" within the meaning of article 4 of the Eleventh Hague Convention, which exempts from capture "vessels employed on religious, scientific, or philanthropic missions."

April 15.-REES-DAVIES, C. J.: This ship was taken and seized as prize by H. M. S. Yarmouth on August 21, 1914, off the Shalientau Island, and was brought to the port of Hongkong. It is now asked that she be condemned as prize.

The defense, as set up on affidavits of the master of the vessel, alleges that she was requisitioned by the government at Tsingtau on the outbreak of the war to carry women and children to Tientsin, as the train service was overcrowded, and the intention was to intern the ship at Tientsin until the end of the war, the ship to be used in the meantime to house such women and children as had insufficient means to live on land. It is also alleged that the ship was specially fitted for this purpose.

The master also states that he had express instructions from the Tsingtau government to fly the German flag and the parliamentary flag (white truce flag) at the foremast, and to carry all lights at night. It is also alleged that the ship was available for any women or children of any nationality, other than Chinese, who might wish to avail themselves of her use, and that no passage money was demanded or paid by the passengers in question.

Under these circumstances it is contended that she was on a "philanthropic mission" within the meaning of article 4 of the Eleventh Hague Convention, 1907, and is exempt from capture.

At the outset of the proceedings I expressed the strongest doubt as to whether it could be so regarded, and the Crown has since fortified me with an extract, under the hand and seal of the assistant undersecretary of state for foreign affairs, of the official report of the committee of the Deuxième Conférence Internationale de la Paix, La Haye, 1907 (Actes et Documents), which, I think, leaves no reasonable doubt as to the construction to be placed on the article in question. It reads (inter alia): "It is obvious that such a favor can only be granted under

the condition that there is no intermeddling (immiscer) in the war operation. In order to avoid all difficulties the power whose ship in question bears the colors must refrain from involving her in any war service." The favor granted to the said ship bestows upon her a sort of neutralization which must last until the end of (all) hostilities, and which must prevent her from having her destination altered."

Now, as to the construction which has to be placed on the foregoing language, I entirely agree with the attorney general's rendering, and will adopt the words which he used in argument. The word "neutralization" here means that the ship is placed entirely outside the pale of any warlike operations, and must in consequence keep herself entirely apart from any service in connection with the war or that may have any effect on the war.

It was contended on behalf of the owners that the intention to intern the refugees at Tientsin was a philanthropic mission, and the recent decision of Mr. Justice Gompertz in the Hanametal, (1 B. and C., P. C. 347), neutral vessel, was relied upon; that the carrying of refugees was not intermeddling with warlike operations, and so was not a breach of neutrality law. I think that there is no real analogy between the reasoning adopted in that case and the present. There is a fundamental difference, as the attorney general contends, between the "neutralization" of an enemy ship within the meaning of the official report on the convention and the neutrality of a nonbelligerent ship. There are many things which the latter may be able to do which in some measure may affect the war without rendering herself liable for a breach of neutrality, and in such case it must be demonstrated to the court by the captor that some unneutral service has been performed. This onus, I understand, is what the Crown failed to discharge in the case of the Hanametal (1 B. and C., P. C. 347).

The fact that a neutral ship may carry refugees without being liable to capture does not imply the same power in an enemy ship, although given "une sorte de neutralisation" for the purpose of the philanthropic mission in question. To construe "philanthropic mission" as suggested might lead to serious consequences which clearly could not have been contemplated by the article, and it might enable an enemy vessel to escape to a neutral port under any similar professed act of philanthropy. If it were