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direct sources comprising treaties and usages, and accessory and indirect sources comprising the legislation and jurisprudence of states and the doctrine of authors (Georges Bry, Précis élémentaire de droit international public, pp. 4, 6);

Whereas, it is accordingly quite indifferent whether the question in dispute is or is not covered by Belgian law, from the moment when it has been established that its solution can be derived from other sources of an equal, or a superior degree, of international law;

Whereas, the circumstance that the Council should necessarily render judgment in accordance with the principles of this law and is not bound by national laws rather constitutes for the interested parties a guarantee of impartial justice;

Whereas, it was not a sort of defiance toward the national prize court, which it instituted, that prompted the Belgian legislature to make possible an appeal, either determined or eventual, against the decisions of the former, but the intention of conforming to a usage universally followed by maritime nations as well as to the provisions of the Hague Convention relative to the establishment of an International Prize Court;

Whereas, in the accomplishment of the mission devolving upon it, the Council could not have had any other concern than that of deciding in accordance with the rules of law and justice and of pronouncing its judgment with all the impartiality that may be expected of a Belgian tribunal, in validating prizes, if this measure becomes necessary, and, in the opposite case, in allotting to Belgium the legitimate advantage of a law which is justified by her victory and her sacrifices;

Whereas, prize law belongs to that class of law which very ancient usages have consecrated as much as an international law recognized by all peoples; whereas, this law has been maintained, save for certain restrictions, by numerous provisions, explicit or implicit, of the Hague Convention, although it had been the object, in the Conference, of spirited criticism, and although the delegates of the majority of the states had voted a proposition tending toward its abolition;

Whereas, this extraordinary result is due to the preponderating intervention of the delegates of certain great maritime Powers who emphasized -and not without reason-counter to the apparently justified principles of law and equity invoked on the other hand, that in naval warfare things do not present themselves as in land warfare; that the violent operations of war that are found there do not suffice in general to lead the adversary to conclude peace, and that it is, moreover, necessary for a belligerent to have the means of checking the economic life of his adversary by hindering or even suppressing his commerce with the outside world; that since the seizure of enemy merchantmen can bring about this disturbance in the economic life of the country to which they belong, it appears henceforth as a powerful means of coercion and ultimately as a measure directed by

a belligerent state more against another belligerent state than against individuals, and which can contribute effectively to bring about a quick peace, to save many human lives, which are more precious than material goods. (Speech of Louis Renault in the Second Hague Conference of 1907.);

Whereas, it was necessary to recall these important considerations in order to avoid combating in the present litigation indirectly and unjustly the legitimacy of a system of law which, notwithstanding a different ideal to which civilized nations, it seems, ought to tend, forms an integral part of positive international law, and which can only be suppressed by virtue of an express provision consecrating the absolute inviolability of private property not only on sea but also on land;

Whereas, although it has not been codified, prize law is nevertheless governed by certain essential and precise rules upon which, whatever may be said thereof, an agreement has been reached between nations of maritime power, and which in spite of inevitable divergences of application, can serve as a basis of appreciation even for a nation deprived up to the present time of imposing naval forces and for the prize tribunal which the fortune of arms has permitted it to establish;

1. Whereas, one of these most essential rules lies in the fact that the decision of a prize tribunal which validates a capture has the effect of depriving the owner of his right of property over the enemy or neutral vessel, and of transferring this right to the state of the captor; whereas, the vessel changes thus in a legal way its flag and its nationality;

2. Whereas, a second principle, also quite certain and universally admitted, provides that it devolves only upon the prize tribunal of the country from which the captor originates, to the exclusion of every foreign jurisdiction, to adjudge the permissibility of the capture, and consequently to pronounce judgment upon the vadidity thereof;

Whereas, without doubt, such decisions are not absolutely irrevocable, and, after all, the fate of a ship captured by a belligerent depends eventually upon the conditions of the treaty of peace, but whereas it is none the less true that as long as the war continues these decisions preserve their legal validity and their character relating to the ownership, subject only to be eliminated by virtue of the conditions of peace;

3. Whereas, according to another principle which dominates all maritime prize law, every merchantman of enemy character can be legally captured unless covered by one of the cases restrictively determined by the Hague Convention or the Declaration of London, and which do not exist in the present instance;

Whereas, from these three rules, well determined and incontestable, there follows the consequence that no "recapture" or "recovery," in the sense and with the effects that are generally attached to such an operation in international law, can take place unless before the recapture of the vessel

a confiscatory sentence has been rendered by the prize tribunal of the enemy, such a sentence having the effect of depriving the owner definitively of his right. "Capture," says Georges Bry (p. 492, ff.), "has in the first place only a provisional and precarious character which in definitive law is transformed only by the judgment of the courts entrusted with pronouncing upon its validity. When the prize has been taken away from the captor after the seizure and before the confiscation pronounced by sentence, a 'recapture' takes place; this is the re-establishment of the previous state; the owner, whose ship was captured, recovers his property; the seizure is purely and simply annulled" (see in the same sense Wheaton, Elements of International Law, II, pp. 20 ff.; Despagnet, p. 665 and 666; Travers Twiss, pp. 324 ff.; Carlos Testa, p. 43; Pasquale Fiore, p. 521; De Pistoye and Duverdy, II, pp. 105 ff.; Calvo, V, Sec. 3198. See also Revue de Droit International, Vol. VII, p. 612; Report of M. Alberic Rolin to the Fifth Commission, Institut de Droit International, 1875, reproducing the corresponding opinions of Bluntschli and de Bulmerincq, as well as the Italian author, Schiattarella [on the recapture of neutral vessels].

Whereas, the recapture of a ship from the enemy after its condemnation in a prize court constitutes, therefore, in reality a new prize, having for its object a vessel of enemy character and not being able to admit the obligation of restoring it to the former owner;

Whereas, the words "recapture" and "recovery" are synonymous, and in former privateering warfare, today abolished, the expression "to pursue the recovery of a ship" meant to follow the vessel which had seized the ship, with the intention of capturing the former together with its prize, or at least of obliging it to abandon this prize, in depriving it thereof. (de Pistoye and Duverdy, loc. cit.);

Whereas, such an operation implied naturally and according to the principles formerly admitted, that the vessel should be recaptured within a period relatively close to the time of its capture, and particularly within a period of twenty-four hours, fixed by the then prevailing custom, in such a way that the ship might be considered as finding itself firmly in the possession of the captor after such a delay, and as having changed ownership; whereas, later it was required, in order to justify the assumption that the owner had been deprived of his right, that the vessel should have been escorted to safety by the captor in a port infra proesidia, and as the English prize decisions say: "Brought into a place so secure that the owner can have no immediate prospect of recovering it"; whereas, in the case of the Santa Cruz, judged in 1798, and relative to some allied Portuguese vessels captured by the French and recaptured by the English, the learned jurisconsult Sir W. Scott did not hesitate, from the point of view of theoretic principles, to consider the deductio infra proesidia as the true rule which, in his opinion, should decide the deprivation of the owner, although other nations, he added, may be far from agreeing on this point and may

be content to follow the twenty-four hour rule, or some other more rigorous rule of that nature; but, whereas, however that may be, "right of recapture" has undergone evolutions in the different countries, and from remote times up to our day there has never been any doubt, from the point of view of the principles of international law, that at least a confiscatory sentence of a prize tribunal should have the effect of depriving the owner of his right and should hinder the obligation of restitution in case of recapture from the enemy;

Whereas, this is the formal rule proclaimed by the United States of America in the Act of Congress of 1800, maintained in force since that time, and which is applicable in equal measure to the national or allied vessels recaptured from the enemy as it is to neutral vessels. (See Wheaton, loc. cit.);

Whereas, with regard to England, Article 40 of the Naval Prize Act of 1864 limits itself to stipulating the right to restitution for the benefit of British subjects, and whereas if this provision, which moreover reproduces similar provisions of earlier acts of Parliament going back to the year 1649, has been interpreted and applied in this sense, namely, that the right to restitution was acquired regardless of whether the recapture was effected before or after the condemnation of the vessel, it is in accordance with this that England intended to favor her national subjects with regard to the ever increasing development of commercial property; but, whereas, it could not result from this special law thus proclaimed by England for herself, and of a restrictive character, that subjects of allied or neutral Powers should be admitted to enjoy the benefits thereof to the whole extent to which it has been interpreted and applied;

Whereas, it is true, as Sir W. Scott said in the case of the Santa Cruz, "that the maritime law of England, having adopted a broader rule of restitution or of safety with regard to recaptured property of her subjects, grants the benefits of this rule to her allies as far as the point where they seem to act toward English property according to a less liberal principle, and in such a case she adopts their rule and treats them according to the measure of their justice." But, whereas, all this is only true in so far as no condemnation of the allied vessel by any enemy prize court has taken place, since the acts of Parliament have put into force again, as far as English subjects only are concerned, the jus postliminii of the orginal (See Wheaton, loc. cit., in this sense.);

owner.

Whereas, with regard to neutrals, the English courts have generally decreed the restitution in case of "recapture" properly so-called, even without indemnity, unless the vessel has been in danger of condemnation by the enemy, in which case indemnity was due; but, whereas, they have always considered that the recaptured vessel only had neutral character in the absence of a condemnation by the prize tribunal of the enemy, which legally brought about the deprivation of the owner and the change of

nationality of the ship.

(Argument of Sir W. Scott in the case of the Charlotte Caroline, Prize Cases II, 149.);

Whereas, the legislation of other countries, such as Holland, Denmark, Spain, Sweden, and Portugal, has likewise undergone evolutions, but in every case within the limits indicated above, that is to say, that the owner was necessarily deprived of ownership by virtue of a sentence of condemnation;

Whereas, especially, when the Ordinance of March 28, 1810, returned the Danish property or the property of the allies of Denmark, without regard to the time that it had remained in the possession of the captor, upon payment of one-third of the value as salvage, the law of February 3, 1864, provided, on the contrary, that the Danish vessels recaptured from the enemy are considered as valid prizes;

Whereas, the Italian Code of Maritime Law, promulgated in 1865, established several distinctions which differentiated national or allied merchantmen recaptured by a privateer and such vessels recaptured by a manof-war, according to which the latter must be restored to their owner without remuneration, even if they have already been taken to an enemy port; whereas, the same is true of a foreign vessel freighted on account of the state, but no mention is made of a foreign vessel not freighted on account of the state, from all of which it must be concluded that a neutral vessel as well as a national or allied vessel whose ownership has passed over into the hands of the belligerent by virtue of a judgment should not be restored in case of recapture;

Whereas, in France the Decree of Prairial of the Year XI is applicable to French or allied vessels, to the exclusion of neutral vessels; whereas, with regard to the former there is no proof that it has had the effect of derogating from the universally admitted principle which provides that a confiscatory sentence pronounced by the competent prize tribunal effects a change of character of the vessel; whereas, the repeal of the twentyfour-hour rule proves moreover that it has not been possible to consider an effective recapture after a rather long lapse of time such as is generally supposed by the formalities and the prize procedure according to the regulations in force; whereas, the neutral vessels that are recovered should be restored according to the principles of international law, but whereas, on the other hand, the reason which compelled their restitution disappeared in case of recapture after condemnation by the prize tribunal of the enemy;

Whereas, in the case of the privateer Le Hasard v. The Statira, M. Portalis, Commissioner of the Government, expressed himself as follows under the guidance of the Decree of Prairial: "If we are dealing, on the contrary, with a foreign vessel claiming to be neutral, the arrest of this vessel by the enemy does not render it suddenly enemy property, since its confiscation cannot be pronounced by the magistrate. Until the confiscatory judgment the ship sailing as a neutral loses neither its character nor

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