Volume Ii Part 67 (1/2)

IV

ACTION IN DAMAGES INSTEAD OF APPEAL

Scott in _A.J._ V. (1911), pp. 302-324.

[Sidenote: Reason for Action in Damages instead of Appeal.]

-- 452. According to the Const.i.tution of the United States of America, and probably that of some other States, no appeal may be brought against a judgment of their Highest Courts. These States could not, therefore, ratify Convention XII. and take part in the establishment of the International Prize Court without previously having altered their Const.i.tution. As such alteration would be a very complicated and precarious matter, the Naval Conference of London of 1908-9 included in the Final Protocol of the Conference the following _voeu_:--”The Delegates of the Powers represented at the Naval Conference and which have signed or have expressed their intention to sign the Hague Convention of October 18, 1907, concerning the establishment of an International Prize Court, considering the const.i.tutional difficulties which, in certain States, stand in the way of the ratification of that Convention in its actual form, agree to call the attention of their Governments to the advantage of concluding an arrangement according to which the said States would, in depositing their ratifications, have the power to add thereto a reservation to the effect that the right of recourse to the International Prize Court in connection with decisions of their National Courts, shall take the form of a direct action for damages, provided, however, that the effect of this reservation shall not be such as to impair the rights guaranteed by the said Convention to private individuals as well as to Governments, and that the terms of the reservation shall form the subject of a subsequent understanding between the signatory Powers of the same Convention.”

To carry out this recommendation, Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Chili, Denmark, Spain, France, j.a.pan, Norway, Holland, and Sweden signed on September 19, 1910, at the Hague the ”Additional Protocol to the Convention relative to the establishment of an International Prize Court” which comprises nine articles, is (article 8) considered to be an integral part of that Convention, and which will be ratified at the same time as the Convention, accession to the Convention being subordinated (article 9) to accession to the Protocol.[943]

[Footnote 943: There is no doubt that, should the International Prize Court be established, all the contracting Powers of Convention XII.

would accede to this additional protocol.]

[Sidenote: Procedure if Action for Damages is brought.]

-- 453. According to article 1 of the Protocol, those signatory or acceding Powers of Convention XII. which are prevented by difficulties of a const.i.tutional nature from accepting the Convention in its unaltered form, have, in ratifying the Convention or acceding to it, the right to declare that in prize cases over which their National Courts have jurisdiction, recourse to the International Prize Court may only be had in the form of an action in damages for the injury caused by the capture. In consequence thereof the procedure in the International Prize Court, as described above, ---- 448-451, takes place with the following modifications:--

(1) The action for damages may only be brought before the International Prize Court by means of a written or telegraphic declaration addressed to the International Bureau (article 5). This Bureau must directly notify, if possible by telegraph, the Government of the belligerent captor, which, without considering whether the prescribed periods of time have been observed, must within seven days of the receipt of the notification, transmit to the International Bureau the case and a certified copy of the decision, if any, rendered by the National Prize Court (article 6).

(2) The International Prize Court does not, as in Appeal Cases, p.r.o.nounce upon the validity or nullity of the capture concerned, nor confirm or reverse the judgment of the National Prize Court, but simply fixes the amount of damages to be allowed, if any, to the plaintiff, if the capture is considered to be illegal (article 3).

(3) After having delivered judgment, the International Prize Court does not transmit the record of the case, the various decisions arrived at, and the minutes, to the National Prize Court, but directly to the Government of the belligerent captor (article 7).

APPENDICES

APPENDIX I

DECLARATION OF PARIS OF 1856

Les Plenipotentiaires qui ont signe le Traite de Paris du trente mars, mil huit cent cinquante-six, reunis en Conference,--

Considerant:

Que le droit maritime, en temps de guerre, a ete pendant longtemps l'objet de contestations regrettables;

Que l'incert.i.tude du droit et des devoirs en pareille matiere, donne lieu, entre les neutres et les belligerants, a des divergences d'opinion qui peuvent faire naitre des difficultes serieuses et meme des conflits;

Qu'il y a avantage, par consequent, a etablir une doctrine uniforme sur un point aussi important;

Que les Plenipotentiaires a.s.sembles au Congres de Paris ne sauraient mieux repondre aux intentions, dont leurs Gouvernements sont animes, qu'en cherchant a introduire dans les rapports internationaux des principes fixes a cet egard;

Dment autorises, les susdits Plenipotentiaires sont convenus de se concerter sur les moyens d'atteindre ce but; et etant tombes d'accord ont arrete la Declaration solennelle ci-apres:--