« ПретходнаНастави »
the bateaux, bátiments and navires there mentioned cover the whole field of possible means of carriage by water so as to make provision somewhere or other for each and all of them. Conventions concluded between nations so diversely interested rest principally on compromise, and cannot be expected to exhibit the comprehensiveness of a code. The language of the general preamble to the article is of importance, but the actual text must come first. The articles contemplate ships—navires de commerce—which in the course of a voyage from a port of departure or to a port of destination enter a port and there find themselves entangled in hostilities of which they were unaware, or ships also commercially engaged upon a voyage, finding themselves in a port, whether of loading, of call, or of discharge, which by the outbreak of war becomes an enemy port, and they provide days of grace, in order that such ships may have their chance to go in peace, and deal specifically with the case in which force majeure prevents them from availing themselves of this opportunity. The picture so drawn is plain, and, if there are vessels entitled to the designation of navires de commerce which lie outside this picture, then the scope of the article affords them no assistance, be their designation on their classification what it will. Neither collectively nor individually was the fleet of the Deutsche Kohlen Depôt engaged in or between ports of departure and discharge. It did not find itself in Port Said in the course of a voyage. Port Said was its home, nor had it any other. No force majeure affected it. In point of fact, after the outbreak of war it went on with its regular employment in its permanent home as before, and no opportunity for departure was desired, for there was neither the intention nor the means for taking it elsewhere. This fleet was the very opposite of the navires de commerce referred to, and was as fixed in its habitat and in its orbit as trains of coal trucks from which steamers take their coal under a tip. If so, it is unnecessary to express an opinion whether the craft could be called navires, and, if so, whether they were also navires de commerce. To them Convention XI had no application at all. In the alternative, but only in the alternative, the question arises whether any benefit could be claimed under the convention for craft which did not avail themselves of the days of grace and were not prevented by force majeure from doing so. The “Décision” of the
Egyptian Government, dated August 5, 1914, gave permission to German ships, which found themselves in Egyptian ports at the outbreak of hostilities, to quit the port up to sunset of August 14. Let
built for sea, though no doubt with some alterations they could have been made fairly seaworthy; let it be that none of the members of the fleet had any business or occupation elsewhere. This does not secure to them the benefit of the convention without complying with its terms: it is only ground for saying that they are not within the scope of the convention at all. They remained in the port and continued their usual employment and took the risk involved in the fact that by Article XIII of the same Décision “les forces navales et militaires de Sa Majesté Britannique pourront exercer tout droit de guerre” in Egyptian waters, apart of course from the terms of the Suez Canal Convention. Remaining where they were conferred on them no irrevocable permission to stay and trade, no permanent immunity from the belligerent rights of the Crown. Later on a license was applied for and obtained, but before seizure that license had been duly revoked. Thereafter at any rate the liquidator could not invoke for their protection the principle that “When persons are allowed to remain either for a specified time after the commencement of war or during good behaviour they are exonerated from the disabilities of enemies for such time as they in fact stay,” Princess Thurn and Taxis v. Moffit (31 The Times L. R., 24; (1915) 1 Ch., at p. 61), even if such a principle is applicable to personal property only, when no enemy person is actually present or in charge of it.
In the result the appeal succeeds and should be allowed, and the cross-appeal fails and should be dismissed, in each case with costs. The decree of condemnation must be amended by omitting the words “and that the said tugs, lighters, motor-boats, and floating craft be detained until further order of the court," as well as the subsequent words “and detention," and the subjects seized must be forthwith condemned and confiscated.
Their Lordships will humbly advise his Majesty accordingly.
THE LEONORA 1
Judicial Committee of the Privy Council
(Lord Sumner, Lord Parmoor, Lord Wrenbury, Lord Sterndale,
and Sir Arthur Channell
Decided July 31, 1919
The Reprisals Order in Council of February 16, 1917, which authorizes the capture and condemnation of vessels carrying cargoes to or from countries contiguous to Germany, if such vessels have not first called at a British or Allied port for examination, was, in the circumstances existing at the date of the Order, justified by the recognized principles of international law, and the consequential results to neutrals give them no right to complain or to claim compensation.
Decision of Evans, P. (34 The Times L. R., 366;  p. 182) affirmed.
These were appeals from a judgment of the late President of the Admiralty Division in Prize (see 34 The Times L. R., 366; (1918] p. 182) condemning the steamship Leonora and her cargo as good and lawful prize.
Sir John Simon, K. C., Sir Erle Richards, K. C., Mr. Mackinnon, K. C., and Mr. W. R. Bisschop appeared for the appellant shipowners; Mr. Leslie Scott, K. C., Mr. Balloch, Mr. Stuart Bevan, and Mr. C. T. Le Quesne for the appellant cargo owners; the AttorneyGeneral, the Solicitor-General, Mr. Greer, K. C., Mr. Clive Lawrence, and Mr. Pearce Higgins for the Crown.
The appeal of the owners of the ship was first taken.
The main question raised was the validity of the Order in Council of February 16, 1917, commonly known as the Second Retaliatory Order. By a previous order of March 11, 1915, the Crown had claimed a right of requiring neutral vessels carrying goods of enemy origin to discharge those goods in a British port irrespective of the destination or character of the goods. The claim was justified as retaliation for illegal acts by the German Government. By the order, no penalty was imposed on neutral vessels. Under the second order, a neutral vessel carrying goods of enemy origin was liable to capture and condemnation unless on her voyage she called at an appointed British or Allied port. The appeal was therefore brought to decide whether a belligerent could exercise a right of retaliation against his enemy to the extent of seizing and forfeiting neutral vessels carrying goods of enemy origin unless they deviated from their voyage and
1 The Times Law Reports, Vol. XXXV, No. 35, pp. 719-726.
called at an appointed British port, although they were not engaged in any trade that rendered them subject to condemnation by international law.
The Leonora, a Dutch steamer, owner by the appellants, a limited company, was registered in the Netherlands. At the time of capture she was on a voyage from Rotterdam to Stockholm (both neutral ports) with a cargo of coal bought by neutral merchants from Belgium colliery owners at the pit's mouth. At that time the purchase of and payment for coal in Belgium was regulated and controlled by the German authorities. The Leonora was captured on the dayAugust 16, 1917—when she left Rotterdam by a British torpedoboat and was taken to Harwich, where she was seized as prize. The Crown applied for a decree of condemnation on the ground that the coal on board was of enemy origin or was enemy property. The owners sought the release of the vessel, urging that a neutral vessel carrying goods the property of neutral merchants from one neutral port to another was not liable to condemnation by international law.
The President decided that the retaliatory order was not inconsistent with, or essentially contrary to, the principles of the law of nations; that the appointment of a port of call for examination as laid down in the order was not a condition precedent to the condemnation of the ship, and that the coal on board was of enemy origin. He therefore condemned the Leonora and her cargo as good and lawful prize, but he gave the owners leave to appeal.
SIR JOHN SIMON, in opening the arguments, said the Leonora when seized was on a route which lay far away from any British port. The question was whether the retaliatory order did not put on the neutral an unreasonable burden in requiring ships to go a long way out of their course to reach a British port. The Leonora, in her course from Rotterdam, would have had to go through a narrow lane between the British mine-field on her starboard and the German submarines on her port in order to reach a British port. The main point for the appellants was that the second retaliatory order was one which imposed a punishment the most severe that international law could impose on a neutral ship which left one neutral port for another, carrying a cargo which belonged to neutrals, and for the first time the order introduced, not a provision which under the head of retaliation would inflict inconvenience on a neutral in his operations, but the capital punishment of international law upon the ship. The mere fact that the order had been issued did not in itself confer on the Prize Court either the power or the duty to punish neutral ships for something which under international law was not an offence.
The first retaliatory order imposed restrictions upon the freedom of action of neutral ships, and when a neutral attempted to complain of that, as in the case of the Stigstad (35 The Times L. R., 176; (1919)
national JOHN Se meanineutral
the belligere had sphile an
A. C., 279,2 the ship was told that it could not go to the Prize Court and claim compensation because it was inconvenienced by a regulation which, having regard to the conditions, was justified as against the enemy. The second retaliatory order not only said that the neutral was not entitled to compensation, but created a new international law offence and asked the Prize Court to condemn any ship which had committed it. It was within the rights of a belligerent to make orders which created additional inconvenience for neutrals, but not to create a new offence. The order therefore was illegal.
LORD SUMNER said that if it was part of international law that a belligerent might retaliate, then a Prize Court in enforcing the order was only giving effect to a new chapter in well-established international law.
SIR JOHN SIMON said that the cargo was not of enemy origin within the true meaning of the Order in Council. In the case of retaliatory orders a neutral must put up with incidental inconvenience, the reason being that the belligerent was not attacking the neutral but was exercising a right which had sprung up in consequence of the bad conduct of his opponent; but while a neutral must suffer inconvenience, a retaliatory order should not expose him to the loss of his property by decree of a prize court. The inconvenience to which the second retaliatory order exposed a neutral was unreasonable and excessive. A neutral had certain rights, and those rights could not be turned into wrongs by a retaliatory order. International law was concerned with securing a true balance between the rights of neutrals and the rights of belligerents. One must work a retaliatory order so as not to forfeit the neutral's vested rights.
SIR ARTHUR CHANNELL.–Does not that take away the possibility of the power of retaliation? If your enemy does a wrong, you must do the same by way of retaliation.
SIR JOHN SIMON.—It is idle to talk about the rights of neutrals under international law if by the wrongdoing of belligerents those rights can be whittled away.
SIR JOHN SIMON, continuing his argument for the shipowners, said that the second retaliatory order was not only wrong in kind, but excessive in degree. In carrying out the order, the captain of the Leonora had said that he would have had to run enormous risks in going to and returning from a British port, as he would have had to pass over the British and German mine areas. Indiscriminate sinking was announced by the Germans on February 1, and this was jollowed by the second retaliatory order. In the meantime, the Admiralty took action quite inconsistent with what the order said neutral vessels must do. The Admiralty announced that it was dangerous for ships to cross certain areas, and later actually warned neutrals that those areas should be avoided.
2 This JOURNAL, January, 1919, p. 127.