Prize § 192. It has already been stated above1 that the capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through its adjudication that the vessel becomes finally appropriated. The origin 2 of Prize Courts is to be traced back to the end of the Middle Ages. During the Middle Ages, after the Roman Empire had broken up, a state of lawlessness established itself on the high seas. Piratical vessels of the Danes covered the North Sea and the Baltic, and navigation of the Mediterranean Sea was threatened by Greek and Saracen pirates. Merchantmen, therefore, associated themselves for mutual protection, and sailed as a merchant fleet under a specially elected chief, the so-called Admiral. They also occasionally sent out a fleet of armed vessels for the purpose of sweeping pirates from certain parts of the high seas. Piratical vessels and goods which were captured were divided among the captors according to a decision of their Admiral. During the thirteenth century the maritime States of Europe themselves endeavoured to keep order on the open sea. By and by, armed vessels were obliged to be furnished with letters patent, or letters of marque, from the sovereign of a maritime State, and their captures submitted to the official control of such State as had furnished them with their letters. A board, called the Admiralty, was instituted by maritime States, and officers of that Board of Admiralty exercised control over the armed vessels and their captures, inquiring in each case 3 into the legitimation 1 § 185. I follow the excellent summary of the facts given by Twiss, ii. §§ 74-75, but see also Marsden, Documents relating to Law and Custom of the Sea (i. 1915, ii. 1916), and the same author in the English Historical Review, xxiv. (1909), p. 675, xxv. (1910), p. 243, xxvi. (1911), p. 34, and in the Journal of the Society of Comparative Legislation, 3 The first case that is mentioned as having led to judicial proceedings before the Admiral in England dates from 1357; see Marsden in the English Historical Review, xxiv. (1909), p. 680. of the captor, and the nationality of the captured vessel and her goods; and after modern International Law had grown up, it was a recognised customary rule that in time of war the Admiralty of maritime belligerents should be obliged to institute a court 1 or courts, whenever a prize was captured by public vessels or privateers, in order to decide whether the capture was lawful or not. These courts were called Prize Courts. This institution has come down to our times, and nowadays all maritime States either constitute permanent Prize Courts, or appoint them specially in each case of an outbreak of war. The whole institution is essentially one in the interest of neutrals, since belligerents want to be guarded by a decision of a court against claims by neutral States regarding alleged unjustified capture of neutral vessels and goods.2 The capture of any private vessel, whether prima facie belonging to an enemy or a neutral, must, therefore, be submitted to a Prize Court. Prize Courts are not international courts, but national courts instituted by Municipal Law, and the law they administer is Municipal Law,3 based on custom, statutes, or special regulations of their State. Every State is, however, bound by International Law to enact only such statutes and regulations for its Prize Courts as 1 In England an Order in Council, dated July 20, 1589, first provided that all captures should be submitted to the High Court of Admiralty; see Marsden, ibid., p. 690. 2 The fact that in Great Britain the Prize Courts are competent to condemn British vessels found guilty of trading with the enemy has nothing to do with International Law, but is entirely a matter of Municipal Law, just as is the question-see above, § 101-whether trading with the enemy is permitted or prohibited. But, according to British practice, British Prize Courts are likewise competent to condemn merchantmen of an ally which have been found guilty of trading with the enemy. This practice is based 4 The constitution and procedure of Prize Courts in Great Britain are governed by the Naval Prize Act, 1864 (27 & 28 Vict. c. 25), the Prize Courts Act, 1894 (57 & 58 Vict. c. 39), the Prize Courts (Procedure) Act, 1914 (4 & 5 Geo. v. c. 13), the Prize Courts Act, 1915 (5 & 6 Geo. v. c. 57), the Naval Prize (Procedure) Act, 1916 (6 Geo. v. c. 2), the Conduct of Prize to Port of Prize Court. are in conformity with International Law.1 A State may, therefore, instead of making special regulations, directly order its Prize Courts to apply the rules of International Law, and it is understood that, when no statutes are enacted or regulations are given, Prize Courts have to apply International Law. Prize Courts may be instituted by belligerents in any part of their territory, or the territories of allies, but not on neutral territory. It would nowadays constitute a breach of neutrality on the part of a neutral State to allow the institution on its territory of a Prize Court.2 Whereas the ordinary Prize Courts are national courts, Convention XII. of the Second Hague Conference provided for the establishment of an International 3 Prize Court at the Hague, which, in certain matters, was to serve as a court of appeal in prize cases; but this convention was never ratified, and during the World War there was no International Prize Court. § 193. As soon as a vessel is seized, she must be conducted to a port where a Prize Court is sitting. As a rule, the officer and the crew sent on board the prize by the captor will navigate her to the port. This officer may ask the master and crew of the vessel to assist him, but, if they refuse, cannot compel them. The captor need not accompany the prize to the port, except where an officer and crew cannot be sent on board, and the captured vessel is ordered to lower her Naval Prize Act, 1918 (8 & 9 Geo. v. The position of a Prize Court in the Privy Council during the World War in The Zamora, (1916) 2 B. and C. P. C. 1, which is the leading case, so far as British Prize Courts are concerned. See also Picciotto, The Relation of International Law to the Law of England and The United States (1915). See below, § 327, and Article 1 of Convention XIII. of the Second Hague Conference. 3 See above, vol. i. § 476a, and below, §§ 442-447. flag, and to steer according to orders. The captor must in that case conduct the prize to the port. To which port a prize is to be taken is not for International Law to determine; it only provides that the prize must be taken straight to a port where a Prize Court sits, and only in case of distress or necessity is delay allowed. A prize may, in case of distress, or in case she is in such bad condition as prevents her from being taken to such a port, if the neutral State concerned gives permission,1 be taken to a near neutral port, and in that event the capturing man-of-war as well as the prize enjoy there the privilege of exterritoriality. But as soon as circumstances allow, the prize must be conducted from the neutral port to a port where a Prize Court sits, and only if the condition of the prize makes this absolutely impossible, may the Prize Court give its verdict in its absence after hearing proper evidence. The whole crew and cargo ought, as a rule, to remain on board the prize until they reach the port of adjudication. But if any cargo is in a condition which prevents it from being sent there, it may, according to the needs of the case, either be destroyed or sold in the nearest port, and, if sold, an account of the proceeds has to be sent to the Prize Court. This applies also to neutral goods, although they have, according to the Declaration of Paris, to be restored to their neutral owners. Prize. § 194. Since through adjudication by the Prize Courts Destructhe ownership of captured private enemy vessels tion of becomes finally transferred to the belligerent whose forces made the capture, it is evident that after transfer the captured vessel as well as her cargo may be destroyed. On the other hand, it is likewise evident that, since a judgment of a Prize Court is necessary before the appro 1 See below, § 328, and Articles 21-23 of Convention XIII. of the Second Hague Conference. 3 priation of the prize becomes final, a captured merchantman must not, as a rule, be destroyed1 on capture instead of being conducted to the port of adjudication. There are, however, exceptions to the rule, but no unanimity exists in theory or practice as regards those exceptions. Whereas some 2 consider the destruction of a prize allowable only in case of imperative necessity, others allow it in nearly every case of convenience. Thus, the Government of the United States of America, on the outbreak of war with England in 1812, instructed the commanders of American vessels to destroy at once all captures, the very valuable excepted, because a single cruiser, however successful, could man a few prizes only, but by destroying each capture would be able to continue capturing, and thereby constantly diminish the enemy merchant fleet. During the Civil War in America, the cruisers of the Southern Confederated States destroyed all enemy prizes, because there was no port open for them to bring prizes to. During the Russo-Japanese War, Russian cruisers destroyed twenty-one captured Japanese merchantmen.5 According to British practice, the captor is allowed to destroy the prize in only two cases-namely, first, when the prize is in such a condition as prevents her from being sent to any port of adjudication; and, secondly, when the capturing vessel is unable to spare a prize crew to navigate the prize into such a port. The Manuel des Lois de la Guerre maritime of the Institute of International Law has suggested for the consideration of the States in Article 104 a rule prohibit 1 See Smith, The Destruction of Merchant Ships under International Law (1917), pp. 27-54. 2 See, for instance, Bluntschli, § 672. See, for instance, Martens, ii. § 126, who moreover makes no difference between the prize being an enemy or a neutral ship. 4 U.S. Naval War Code (Article 14) allowed destruction 'in case of military or other necessity.' 5 See Takahashi, pp. 284-310. The Acteon, (1815) 2 Dod. 48; The Felicity, (1819) 2 Dod. 381; The Leucade, (1855) Spinks 217. See also Holland, Prize Law, §§ 303-304. |