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JUDICIAL DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW

HIS BRITISH MAJESTY's PROCURATOR-GENERAL IN EGYPT v. DEUTSCHE KoHLEN DEPOT GESELLSCHAFT *

Judicial Committee of the Privy Council
(Lord Sumner, Lord Parmoor, and Lord Wrenbury)

Decided December 13, 1918

THIS was an appeal and cross-appeal from a judgment of the Supreme Court for Egypt in Prize, by which certain tugs, motorboats, lighters, and other craft, the property of the Deutche Kohlen Company, were declared to have belonged at the time of seizure to enemies of the Crown, and to have been properly seized as good and lawful prize, and they were directed to be detained until further orders. The Crown appealed from so much of the judgment as ordered that the craft should be detained only, and claimed that they should be condemned and confiscated. The company crossappealed, and submitted that the craft were liable neither to condemnation nor detention.

The Solicitor-General and Mr. Gavin Simonds appeared for the Crown; Sir Erle Richards, K. C., and Mr. Balloch for the company.

The Deutsche Kohlen Company, of Hamburg, had a branch at Port Said, where it supplied coal to passing steamers. It owned and used a number of tugs, motor-boats, and lighters, none of which was registered in the German Mercantile Marine. After the outbreak of war it carried on its operations under a limited license granted by the Egyptian Government, but ultimately the business was wound up and liquidated, and the company's craft requisitioned and used by the British authorities. The crown claimed the condemnation of the craft as belonging to enemies. Judge Grain rejected the company’s contention that the craft were exempt from capture under Article 3 of the Eleventh Hague Convention, as being “vessels employed exclusively in coast fisheries, or small boats engaged in local trade.” But he held, contrary to the submission of the Crown, that the craft were “merchant ships” within the meaning of Article 2 of the Sixth Hague Convention, and were liable only to be detained, not to be condemned or confiscated. From these decisions both parties appealed. The arguments were originally heard in February last, but were broken off to enable the Crown to procure from Egypt certain correspondence bearing on the question whether there had been any seizure of the craft. The Solicitor-General said that there had been no formal seizure, as any such act would have been a breach of the Suez Canal Convention, but he submitted that the steps taken by the authorities amounted to seizure in law. The possession of the craft by the naval and military forces was tantamount to seizure. Sir Erle Richards, K. C., contended that the evidence from Egypt showed that there had been no capture, and therefore the court had no jurisdiction, for it was necessary to have capture as a basis of the proceedings. The craft were merchant ships, which were not liable to seizure, and, besides, they had been working under a license from the Egyptian Government, and could not therefore be seized. They were also protected from seizure by the Suez Canal Convention. Lord Sumner, in delivering their Lordships’ considered judgment, said: The Vice-Admiralty Court at Alexandria decided this case on the application of The Hague Conventions, numbers VI (Arts. 1 and 2) and XI (Article 3). The learned judge held that the craft were not immune from seizure, but only made a detention order against them. Accordingly there are cross-appeals. One party claims condemnation, the other immediate release. Each prepared his case on the assumption that there had been a valid seizure and only sought to inquire, which convention, if either, applied, for if neither was applicable, condemnation followed. During the hearing it appeared that the record contained no account of the circumstances of the seizure, nor indeed expressly alleged any seizure at all, and although it might have been enough to have relied upon the recital in the decree under review, that the various craft were “lawfully seized as good and lawful prize,” on such a point their Lordships were

1 The Times Law Reports, Vol. XXXV, p. 159.

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