its rights. After the arrest it can recover its liberty. In such a case the recovery of this vessel could not, therefore, bring about the transfer of ownership into French hands by which this recovery was operated. The question of neutrality always remains entire; it should be decided before everything. Such is the language of all the publicists, such is the custom of all the civilized nations. This being admitted, the ship Statira has not become confiscable by the fact alone that she was recovered from the enemy" (de Pistoye and Duverdy, II, p. 123);

Whereas, it was apparently due to these so judicious and juridical observations that in the course of the recent war of 1914-1918 the instruction of the Minister of Marine of January 30, 1916, was rendered in so far as it dealt with "recovery"; whereas in speaking of French or allied vessels captured by the enemy "you will strive to effect their recovery, and furthermore of the neutral vessels recovered "you will release them purely and simply," these instructions show that we are not dealing with a recapture after a capture of firm possession on the part of the enemy and a sentence of condemnation by one of its prize tribunals, but of a ship which remained legally and apparently neutral according to international law and the distinguishing signs which should cause it to be recognized as such;

Whereas, quite similarly to the Hague Convention, the Declaration of London recognized in several of its provisions and particularly in its Articles 41, 48 and 66, the legality of national prize jurisdiction, and whereas, it would be a fruitless question if we were to inquire into the raison d'être of these provisions if the effects of a sentence of condemnation were not to be imposed upon all with the same authority, belligerents as well as neutrals, the latter having to submit thereto by virtue of the necessity of war; whereas, it cannot be seen moreover how it would logically be possible to admit the effects of such a sentence in the relations between the captor and the captured, and to refuse to apply them in the relations between the captured and a recaptor;

Whereas, Article 57 of the Declaration of London provides that the neutral or enemy character of the vessel is determined by the flag which it is entitled to fly; whereas, after a confiscatory sentence pronounced by the prize tribunal of a belligerent, the flag which an enemy or neutral vessel is entitled to fly is that of the belligerent who has made the capture, and this legal change of flag renders the vessel confiscable on the part of the opposing belligerent, as an enemy vessel; whereas, it follows from the preceding considerations that according to the spirit of the international treaties and according to modern usage adopted by all nations, the decision which validates a prize fixes in a definite manner the juridical fact of the deprivation of the owner, the cause of the right of the recaptor, and that while admitting that according to the countries and the cases given, it may have been possible to make varying applications of this principle, it de

volves upon the council to adhere purely and simply to the American Law and to derive therefrom the sole logical consequence which it admits, namely, the absence of the obligation of restoration in case of recapture of a neutral or allied vessel;

Whereas, the English underwriters maintain, unjustly, that it is not possible to attach any value to the decision of the German prize jurisdiction for the reason that the capture in question was only an act of piracy violating the rights of neutrals and the Declaration of London to which Germany has adhered;

Whereas, if it were necessary, in the present case, to investigate whether the German decision was or was not rendered in conformity with the rules of international law and of the Declaration of London, it would be in order to observe that in fact the latter Declaration has not been perfectly respected by any of the belligerents; whereas, the Allied Powers have been forced by the attitude and the unjustifiable methods of war of Germany to make modifications thereof in conformity with their most essential interests, particularly with regard to the specification of articles of absolute or conditional contraband; whereas, Germany has, on her part, made modifications of the Declaration touching the same point, and, whereas, thus the belligerents have released themselves mutually and in a tacit manner from their reciprocal obligations in this respect, in such a way that the violation of these obligations cannot be charged against them; whereas, the neutrals have moreover been warned by the notifications of decrees of the various belligerents of the fact that they would no longer be able to count upon the integral execution of the Declaration of London with regard to the limitation of articles of contraband, and whereas, they have, nevertheless, and at their own risk, undertaken maritime expeditions involving the prohibited goods; whereas, international law admits, moreover, that a belligerent, with a view to safeguarding his interests, which he considers essential, exercises a certain pressure upon neutrals in reducing their commercial relations with the outside world, and the loss which results for them therefrom is amply compensated for by the enormous advantages which after all their commerce secures for them in time of war (Clunet, Journal de Droit International, 1919, 1st and 2d books);

Whereas, in reality, the prohibition resulting from Article 28 of the Declaration, interdicting the treating of window glass as contraband, with which the present litigation deals, did not touch the substance of international law as other stipulations contained in the Declaration, and which are only the reproduction of certain rules of this law already recognized in their broad outlines by the customs of the nations; whereas, an infraction of such a prohibition, purely conventional and more or less arbitrary, does not appear to have assumed in the mind of the belligerents any more than in the mind of the neutrals, who are forced to accept it, the character of a violation of a principle or of an essential rule of international law;

But, whereas, under any hypothesis, the jurisdiction of the court of the nation which has made the capture is conclusive on the question of ownership of the captured property; whereas, its decision terminates every controversy relative to the validity of the capture between the claimant and him who has made the capture and those who claim after them that this sentence terminates every juridical question on the matter; whereas, if the violation of international law has been committed by a prize tribunal, it follows therefrom solely that the state which has instituted the tribunal and which is supposed to have given the latter its instructions, in conformity with Article 66 of the Declaration of London, is responsible by reason of such a violation, but not that it should be permitted to open again for discussion, either with regard to the captor or a recaptor, the question of ownership definitively decided by the competent tribunal or the validity of its decision (Wheaton and Georges Bry, loc. cit.);

Whereas, the Belgian State, in availing itself of the German prize decision, could not incur the reproach of wishing to sanction a violation of international law committed by the enemy; whereas, it limits itself to claiming the use of a right based upon the success of the military operations of its army and to desiring to derive the legal consequences from a situation which it has not created and with the justification of which it should not interfere;

Whereas, it is true, the final fate of the enemy prizes could depend upon the conditions of the intervening treaty of peace; whereas, it must be remarked that Article 440 of the Treaty of Versailles, in so far as it permits the revision by the Allied Governments of the decisions rendered by the German prize tribunals, is directed against Germany, in so far as the latter has preserved the possession of certain ships unjustly captured and declared by its tribunals to be good prizes and which could, as a result of a revision of the sentence, be detached from the lot of those ships that are to be returned to the Allied and Associated Powers in execution of the stipulations of the Treaty of Peace, for the purpose of being restored to the prejudiced neutral or allied subjects; whereas, this provision does not aim to do an injustice to one of the Allied Powers in depriving it of the benefits of a recapture based on a German prize decision.

In fact:

Whereas, on July 12, 1917, the sailing vessel Agiena, flying the Dutch flag and bound from Maassluis to Havre with a cargo composed especially of cases of window glass, was seized as a prize in the North Sea by German hydroplanes and taken by a torpedo boat to Zeebrugge, and from there to the interior port of Bruges, where it was chartered by the Netherlands firm Gist en Spiritus Fabriek for voyages between Bruges and Brussels;

Whereas, it follows from the documents in the dossier that the vessel was declared a good prize by a decision of the Hamburg Court rendered under date of November 16, 1917;

Whereas, it follows therefrom, as well as from the considerations made above, that the Agiena became a German vessel and that it was subject to capture when, on October 19, 1918, the Belgian troops captured it in the port of Bruges;

Whereas, while admitting, in default of greater precision on the part of the dossier, that the vessel was condemned on account of carrying contraband of war, notwithstanding Article 28 of the Declaration of London which forbade the treatment of glassware as such, the decision of the German prize jurisdiction is nevertheless possessed of a legal force imposing itself upon all and of such a nature as to form the basis of the right of capture of the Belgian State;

Whereas, it is true, the English underwriters in the case maintained, with documents in support thereof, that on July 23rd and 26th, 1917, that is to say, between the date of capture and that of the decision of the prize tribunal, they insured the hull of the ship for the benefit of the Dutch owner and that as a result of the payment of the indemnity by them for the total prize they have become subrogated to his rights with the consequence that the ship had become their property and was considered to be flying the English flag at the date of its recapture from the enemy;

But, whereas, this circumstance could not have the effect of modifying the juridical situation resulting from the German prize decison;

Whereas, in principle, the said underwriters could not have, with regard to the recaptor, more rights than the previous Dutch owner had, deprived of every remedy against the former; whereas, it is indifferent that the date of their title antedates that of the judgment validating the prize; whereas, the ship was captured and judged as a neutral vessel having infringed upon the rules of neutrality; and, whereas, it was recaptured as an enemy and neutral vessel before its original capture, the latter alone having to be considered in the present case;

Whereas, to admit a contrary solution would result in permitting the evasion of the consequences of the previously neutral character of the vessel in case it would be in order to treat differently neutral vessels and allied ships recaptured from the enemy;

But, whereas, as it has been shown, no difference is to be made between the two cases and restitution of the ship is not in order no matter what point of view is taken;

Whereas, it follows from these considerations that the recapture of the ship Agiena by the Belgian troops is permissible and valid with respect to the English underwriters in the case; that it would have been declared thus also with regard to the firm Nederlandsche Gist en Spiritus Fabriek, which, it is alleged, purchased the ship at the German prize office under date of October 5, 1918, that is to say, at the time when, given the military situation, there was reason to fear that the vessel would come into the hands of the Allies, and therefore, with the manifest object on the part of

the German authorities to evade the consequences of the enemy character of the vessel, and hence under such conditions that the transfer to a neutral flag must be considered void according to the incontestable principles of international law, confirmed by Article 56 of the Declaration of London;

FOR THESE REASONS:

The Council having heard the Commissioner of the Government, Van Gindertaelen, in his pertinent motions, rejecting all contrary claims as unfounded, declares inadmissible the intervention of the English underwriters listed under the letters F to P, and acknowledging to the English underwriters listed under letters A to E the fact that they estimate the litigation for each of them at more than 20,000 francs, declares legal and valid the capture of the sailing vessel Agiena, and decrees that this vessel shall belong in its totality to the Belgian State. Expenses as in law.

THE BRUSSELS1

Belgian Council of Prizes

Antwerp, October 23, 1919

In case No. 46, S.S. Brussels, the Council renders the following decision :

In view of the introductory petition presented by the Commissioner of the Government requesting that the capture of the steamer Brussels, of about 1380 tons, formerly belonging to the Great Eastern Railway Company, whose offices are at Harwich, be declared effective and valid for the benefit of the Belgian State;

In view of the other documents incorporated into the pleadings;

Having heard the Commissioner of the Government Van Gindertaelen in his reasons and motions;

Whereas, the steamer Brussels, flying the English flag and commanded by the late Captain Fryatt, was captured on the high seas by the German naval forces and taken to Zeebrugge; whereas, it was declared a legal prize by the decision of the Prize Court of Hamburg on November 15, 1916, confirmed by the Superior Prize Court at Berlin on July 29, 1917;

Whereas, it follows therefrom that the ship had become German property and that, according to the principles of the law of nations, it was subject to seizure when, in the month of October, 1918, the victorious Belgian troops captured it in the port of Zeebrugge, where it was sunk by the enemy;

Whereas, no objection could be made that, forming the subject of the recapture of an allied ship, this ship should, according to international 1 Translated from the Moniteur Belge, Nov. 6, 1919, p. 5894.