Volume Ii Part 64 (1/2)

But the matter of recapture of neutral prizes is not settled, no rule of International Law and no uniform practice of the several States being formulated regarding it. Very few treaties touch upon it, and the munic.i.p.al regulations of the different States regarding prizes seldom mention it. According to British practice,[918] the recaptor of a neutral prize is ent.i.tled to salvage, in case the recaptured vessel would have been liable to condemnation if brought into an enemy port.

[Footnote 918: The _War Onskan_ (1799), 2 C. Rob. 299. See Holland, _Prize Law_, -- 270.]

[Sidenote: Release after Capture.]

-- 433. Besides the case in which captured vessels must be abandoned, because they cannot for some reason or another be brought into a port, there are cases in which they are released without a trial. The rule is that a captured neutral vessel is to be tried by a Prize Court in case the captor a.s.serts her to be suspicious or guilty. But it may happen that all suspicion is dispelled even before the trial, and then the vessel is to be released at once. For this reason article 246 of Holland's _Prize Law_ lays down the rule: ”If, after the detention of the vessel, there should come to the knowledge of the commander any further acts tending to show that the vessel has been improperly detained, he should immediately release her....” Even after she has been brought into the port of a Prize Court, release can take place without a trial. Thus the German vessels _Bundesrath_ and _Herzog_, which were captured in 1900 during the South African War and taken to Durban, were, after search had dispelled all suspicion, released without trial.

That the released vessel may claim damages is a matter of course, and article 64 of the Declaration of London precisely enacts it. But it should be mentioned that, since Convention XII. stipulates only appeals against judgments of National Prize Courts, the International Prize Court would not have jurisdiction in a case of the release of a vessel without trial, and that the question of compensation could, therefore, be settled through the diplomatic channel only.

III

TRIAL OF CAPTURED NEUTRAL VESSELS

Lawrence, ---- 188-190--Maine, p. 96--Manning, pp.

472-483--Phillimore, III. ---- 433-508--Twiss, II. ---- 169-170--Halleck, II. pp. 393-429--Taylor, ---- 563-567--Wharton, III. ---- 328-330--Moore, VII. ---- 1222-1248--Wheaton, ---- 389-397--Bluntschli, ---- 841-862--Heffter, ---- 172-173--Geffcken in Holtzendorff, IV. pp. 781-788--Ullmann, -- 196--Bonfils, Nos.

1676-1691--Despagnet, Nos. 677-682 _bis_--Rivier, II. pp.

353-356--Nys, III. pp. 710-718--Calvo, V. ---- 3035-3087--Fiore, III. Nos. 1681-1691, and Code, Nos. 1890-1929--Martens, II. ---- 125-126--Kleen, II. ---- 219-234--Gessner, pp. 357-427--Boeck, Nos.

740-800--Dupuis, Nos. 282-301, and _Guerre_, Nos.

218-223--Nippold, II. -- 35--Perels, ---- 56-57--Testa, pp.

244-247--Hautefeuille, III. pp. 299-365--Atherley-Jones, _Commerce in War_ (1906), pp. 361-594--Hirschmann, _Das internationale Prisenrecht_ (1912), -- 38--See also the monographs quoted above at the commencement of -- 391, and Bulmerincq's articles on _Le droit des prises maritimes_ in _R.I._ X.-XIII. (1878-1881).

[Sidenote: Trial of Captured Vessels a Munic.i.p.al Matter.]

-- 434. Although belligerents have, under certain circ.u.mstances, according to International Law, the right to capture neutral vessels, and although they have the duty to bring these vessels for trial before a Prize Court, such trials are in no way an international matter. Just as Prize Courts--apart from the proposed International Prize Court--are munic.i.p.al[919] inst.i.tutions, so trials of captured neutral vessels by these Prize Courts are munic.i.p.al matters. The neutral home States of the vessels are not represented and, directly at any rate, not concerned in the trial. Nor is, as commonly maintained, the law administered by Prize Courts International Law. These Courts apply the law of their country.

The best proof of this is the fact that the practice of the Prize Courts of the several countries has. .h.i.therto differed in many points. Thus, for instance, the question what is and what is not contraband, and, further, the question when an attempt to break blockade begins and when it ends, have hitherto been differently answered by the practice of different States.

[Footnote 919: See above, -- 192. The matter is regulated so far as Great Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch.

25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The _Reglement international des prises maritimes_, adopted in 1887 at Heidelberg by the Inst.i.tute of International Law, provides in ---- 63-118 detailed rules concerning the organisation of Prize Courts and the procedure before them; see _Annuaire_, IX. (1888), p. 208.]

Many writers, however, maintain that Prize Courts are International Courts, and that the law administered by these courts is International Law. Lord Stowell again and again[920] emphatically a.s.serted it, and the vast majority of English and American writers[921] follow him. But it is to be expected that the recognition of the difference between Munic.i.p.al and International Law, as expounded above, Vol. I., ---- 20-25, and of the fact that States only, and neither their Courts nor officials nor citizens, are subjects of International Law, will lead to the general recognition of the fact that the law applied by National Prize Courts is not and cannot be International Law.

[Footnote 920: The _Maria_ (1799), 1 C. Rob. 340; the _Recovery_ (1807), 6 C. Rob. 341; the _Fox and others_ (1811), Edwards, 311.]

[Footnote 921: See, for instance, Halleck, II. p. 411; Maine, p. 96; Manning, p. 472; Phillimore, III. ---- 433-436; Hall, -- 277. On the other hand, Holland, _Studies_, p. 199; Westlake, II. p. 289; and Scott, _Conferences_, p. 467, distinctly agree with me.]

And matters will remain as they are even after the establishment of the International Prize Court and ratification of the Declaration of London.

The law of this Declaration is certainly International Law, but it will be binding only upon the States, and they, on their part, must embody it in their Munic.i.p.al Law so that their Prize Courts are obliged to administer such a law in prize cases as is in conformity with the Declaration of London. It will be the task of the International Prize Court[922] to control the National Prize Courts in that direction. A State which is a party to the Declaration and would nevertheless order its Prize Courts to apply a law which is in opposition to the Declaration of London, would commit an international delinquency, but its Prize Courts would be obliged to apply such law.

[Footnote 922: Trial before this Court is, of course, an international matter.]

[Sidenote: Result of Trial.]

-- 435. The trial of a captured neutral s.h.i.+p can have one or more of five results:--vessel and cargo can be condemned,[923] or the vessel alone, or the cargo alone; and the vessel and cargo can be released either with or without costs and damages. Costs and damages must be allowed when capture was not justified, and, after the ratification of the Declaration of London and the establishment of the International Prize Court, an appeal may, according to article 64 of the Declaration of London and article 4 of Convention XII., be brought before the International Prize Court if costs and damages are refused or inadequately allowed by a Prize Court. But it must be emphasised that capture might be justified, as, for instance, in the case of spoliation of papers, although the Prize Court did not condemn the vessel, and, further, that costs and damages are never allowed in case a part only of the cargo is condemned, although the vessel herself and the greater part of the cargo are released. That, in case the captor is unable to pay the costs and damages allowed to a released neutral vessel, his Government has to indemnify the vessel, there ought to be no doubt, for a State bears ”vicarious” responsibility[924] for internationally injurious acts of its naval forces.