Effect of

break of

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Property found by a belligerent on one of his merchantmen does not enjoy any immunity from confiscation, since enemy private property at sea,1 unlike private property on land, is liable to capture everywhere except on a neutral vessel or neutral territory.2 Accordingly, during the World War, British Prize Courts in several cases condemned enemy goods on British merchantmen whether seized before or after they had been landed in British ports.3

Further, enemy goods discharged before the outbreak of war into a bonded warehouse in a British port, and found in bond at the outbreak of war, are still considered by British practice as sea-borne.1

§ 102a. In former times International Law emthe Out: powered States when war was impending, or at its War on outbreak, to lay an embargo upon all enemy merchantchantmen. men in their harbours in order to confiscate them. Further, enemy merchantmen at sea could at the outbreak of war be captured and confiscated, although they did not even know of the outbreak of war. As regards enemy merchantmen in the harbours of the belligerents,

1 In 1905, during the RussoJapanese War, a Russian vessel, the Thalia (see Takahashi, pp. 605-620 ; Russian and Japanese Prize Cases, ii. p. 116), was seized while undergoing repairs in a Japanese shipyard, and condemned as an enemy vessel, although, being on land beside a dock, she was not at sea. This was prior to Hague Convention vi., which forbade confiscation of enemy merchantmen in harbour at the outbreak of war. (See below, § 102a.)

2 The assertion-see Latifi, Effects of War on Property (1909), p. 90that as 'from the point of view of Municipal Law, ships are floating portions of the national jurisdiction,' enemy goods found in a belligerent's own ships are not subject to the law of maritime capture, but will be on the footing of the moveable property of enemy subjects found on

a belligerent's territory,' is wrong, because merchantmen are not really floating portions of the flag State. See above, vol. i. § 264.

3 The Miramichi, (1914) 1 B. and C. P. C. 137; The ten bales of silk at Port Said, (1916) 2 B. and C. P. C. 247; The Dandolo, (1916) 2 B. and C. P. C. 339. See below, § 177 and § 197. The Roumanian, (1914) 1 B. and C. P. C. 75, 536. On the meaning of the term 'port' see Baty in the Law Quarterly Review, xxxiv. (1918), pp. 420-427, who denies that quays and dry docks are part of a port. And it matters not whether enemy cargo itself is concerned, or the proceeds of its sale, because it had been sold in a British port on account of its perishable character. The Glenroy, (1918) 3 B. and C. P. C. 161. 4 The Eden Hall, (1916) 2 B. and C. P. C. 84.

it became, from 1854, during the Crimean War, a usage, if not a custom, that no embargo 1 should be laid on them for the purpose of confiscating them, and that a reasonable time, so-called days of grace, should be granted them to depart unmolested; but no rule was in existence until the Second Hague Conference of 1907, which produced a Convention (VI.) 'relative to the Status of Enemy Merchant-ships at the Outbreak of Hostilities.' In coming to an agreement on the subject, two facts had to be taken into consideration. There was, first, the fact that in all maritime countries numerous merchantmen were being built from special designs in order that they might quickly, at the outbreak of, or during, war, be converted into cruisers; it would therefore have been folly for a belligerent to grant any lenient treatment to such vessels. There was, secondly, the fact that a belligerent fleet could not remain effective for long without being accompanied by a train of colliers, transport vessels, and repairing vessels; it was, therefore, of the greatest importance for a belligerent to have as many merchantmen as possible at his disposal to give such assistance to the fleet. For this reason Convention VI. represented a compromise, and distinguished between vessels in the harbours of the belligerents and vessels on the sea.

(a) Vessels in harbour :

(1) Article 1 of the convention enacts that, in case an enemy merchant ship is at the beginning of the war in the port 3 of a belligerent, or having left its last port of departure before the commencement of the war,

1 See above, § 40.

* See Lémonon, pp. 647-661; Higgins, pp. 300-307; Nippold, ii. pp. 146-153; Scott, Conferences, pp. 556-568; Dupuis, Guerre, Nos. 7481; Scott in A.J., ii. (1908), pp. 260269; Wehberg, pp. 194-200.

To enjoy the benefit of this VOL. II.

L

article, a vessel must be inside a port; it is not sufficient that she is inside a roadstead leading to a port. See The Belgia, (1915) 1 B. and C. P. C. 303, 2 B. and C. P. C. 32; see also The Möwe, (1914) 1 B. and C. P. C. 60; The Fenix, Z.I., ix. (1915), p. 103, A.J., x. (1916), p. 909.

enters a belligerent port in ignorance of its outbreak, it is desirable that she should be allowed freely to depart, either immediately or after a reasonable number of days of grace, and, after being furnished with a pass, to proceed direct to her port of destination, or to any other port indicated. It is obvious that, since only the desirability of free departure of such vessels is stipulated, even a belligerent which is a party to the convention is not compelled to grant free departure; nevertheless there must be grave reasons for not acting in accordance with what is considered desirable by Article 1. Secondly, such a belligerent may make a distinction in the treatment of the several enemy vessels in his harbours, and may grant free departure to one or more of them, and refuse it to others, according to discretion.

(2) The former usage that enemy merchantmen1 in the harbours of the belligerents at the outbreak of war might not be confiscated, was made a binding rule upon the parties by Article 2, which enacts that such vessels as are not allowed to leave,2 or are by force majeure3 prevented from leaving during the days of grace, may not be confiscated, but may only be detained for restora

1 The British Prize Court was called upon to decide what kinds of vessels came within the term merchantmen (navires de commerce). It condemned the Germania, a racing yacht found at Cowes at the outbreak of war (1 B. and C. P. C. 573, and, on appeal, 2 B. and C. P. C. 365; see Zitelmann in Z.V., xi. (1918), pp. 1-19), and the Oriental, a Hungarian yacht found in the same place (1 B. and C. P. C. at p. 575), on the ground that they were not merchantmen. The author would have preferred to include within the term private vessels of all kinds (as did the German Prize Court in another connection-see The Primavera, Journal du Droit international

(Clunet), xliv. (1917), p. 1804).

In H.M. Procurator in Egypt v. Deutsches Kohlen Depot Gesellschaft, (1916) 2 B. and C. P. C. 439, 3 B. and C. P. C. 264, the Privy Council held that a fleet of lighters used in port to coal vessels, and the tugs used to tow them, were not merchantmen. See also The Atlas and Lighters, (1916) 2 B. and C. P. C. 470.

2 There were several cases in which vessels did not avail themselves of a pass, and were therefore condemned. See The Pindos, (1915) 1 B. and C. P. C. 248, 2 B. and C. P. C. 146.

3 Lack of funds is not force majeure: The Concadoro, (1915) 1 B. and C. P. C. 390, 2 B. and C. P. C. 64.

tion, without compensation, after the conclusion of peace, or requisitioned on payment of compensation to

the owners.

(3) Both these articles apply also to enemy cargo on board these vessels.1

(4) The convention does not apply to merchant ships which by their construction show that they are intended for conversion into war vessels.2

By Article 6 this convention was made applicable only if all the belligerents in a war were party to it. During the World War, several belligerents, including the United States and Italy, were not parties, and the question arose whether in strict law it was binding.3

However this may be, at the outbreak of the war Germany proposed to the Allied Powers that days of grace should be allowed to merchant vessels found in enemy ports to depart unmolested, and France, by decrees of August 4 and August 13, 1914, granted seven days' grace to German and Austrian vessels in French harbours, or entering them in ignorance of the outbreak of hostilities. Great Britain, by Order in Council of August 4, 1914,5 declared that if information was received by a certain hour that no less favourable treatment was being accorded by Germany to British merchantmen and cargoes, German merchantmen (with certain exceptions) in British ports, or entering them subsequently in ignorance of the declaration of war, might load and depart within ten days. But no such information was received, and all German vessels were detained.6 On the other hand, reciprocal permission. to depart within a period of grace was granted by Great Britain to Austrian merchant vessels and by

1 Article 4.

2 Article 5. The Derflinger, (1916) 2 B. and C. P. C. 36.

* See Garner, i. § 104, who holds that it was not binding. The author had expressed no opinion.

See Garner, i. § 105, and R.G., xxii. (1915), Documents, pp. 9-10. 5 London Gazette, August 7, 1914. • London Gazette, August 11, 1914; The Chile, (1914) 1 B. and C. P. C. 1, at p. 7.

Austria-Hungary to British merchant vessels found in their harbours or entering them in ignorance of the outbreak of war.1

The first German vessel found in port to come before the British Prize Court was The Chile, and she was not then condemned, but ordered to be detained until further order. A similar decree was made in many other cases.3 Among them was that of The Marie Leonhardt, which came again before the court after the conclusion of peace as a test case. After argument upon the binding force 5 of Article 2 of Hague Convention vi. the German owners abandoned their claim under that convention, and the court held that (apart from the convention upon which it had become unnecessary to express an opinion) 'ships of the enemy in our ports the outbreak of hostilities are detained in our ports to be confiscated if no reciprocal agreement is made.' 6

at

(1) Enemy merchant ships which left their last port of departure before the outbreak of war, and, while still ignorant of the outbreak of war, are met at sea (en mer) by cruisers of the belligerents, may, according to Article 3, be captured; they may not, however, be confiscated, but may either be detained for restora

1 London Gazette, August 14, 1914; Garner, i. § 106. As to the attitude of other belligerents, see Garner, i. §§ 105, 106, 115.

2 See 1 B. and C. P. C. at p. 12. 3 The Bellas, (1914) 1 B. and C. P. C. 95; The Gutenfels, (1916) 2 B. and C. P. C. 36; The Turul, (1919) 3 B. and C. P. C. 356; The Prinz Adalbert, (1916) 2 B. and C. P. C. 70, reversed on appeal, 3 B. and C. P. C. 70; The Kronprinzessin Cecilie, see 3 B. and C. P. C. 363 at p. 365, also reversed on appeal. In these last two cases the German ship had taken refuge in a British port prior to the outbreak of war between Great