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was profitable, though a request by this Tribunal for some detailed information as to these profits has not been satisfied.
There has been adduced no evidence sufficient to establish that had there been no interference by the United Stats naval authorities the vessels would have made more or any profit from sea otter hunting in Behring Sea. It is admitted by the counsel for Great Britain that nothing is so uncertain as the profits of such a venture.
The amount of the demands is based merely on statements made by the interested parties themselves or on statistics and data which afford no sufficient evidence as to the sea otters caught by other British schooners, similarly equipped and manned, hunting during the same period and in the same localities as the three schooners in question intended to hunt.
In these circumstances, this Tribunal is only able to take into consideration the fact of the prohibition itself, by which in violation of the liberty of the high seas the vessels were interfered with in pursuing a lawful, and, it may be, profitable enterprise; but nobody can say whether that enterprise would have been more or less profitable than the one in which they actually engaged on the Russian coast or whether they would have encountered some mishap of the sea. In any case, the result was that the expenses incurred in engaging crews specially trained for this enterprise was unprofitable and wasted.
This Tribunal is of opinion that the following sums will be just and sufficient indemnities for each of the three vessels, viz.: for the Jessie, $544 for her special expenses and $1,000 for the trouble occasioned by the illegal interference; for the Thomas F. Bayard, $750 for her special expenses and $1,000 for the trouble occasioned by the illegal interference; and for the Pescawha, $500 for her special expenses and $1,000 for the trouble occasioned by the illegal interference.
As to interest, there is no evidence that any claim was ever presented to the Government of the United States before being entered on the Schedule annexed to the Special Agreement, and according to the terms of submission, section four, interest may only be allowed from the date on which any claim has been brought to the notice of the defendant party.
FOR THESE REASONS: This Tribunal decides that the Government of the United States shall pay to the Government of His Britannic Majesty, the sum of One thousand five hundred and forty-four dollars ($1,544.) on behalf of the Schooner Jessie, the sum of One thousand seven hundred and fifty dollars ($1,750.) on behalf of the Schooner Thomas F. Bayard, and the sum of One thousand five hundred dollars ($1,500.) on behalf of the Schooner Pescawha, in each case, without interest. The President of the Tribunal,
(Signed) HENRI FROMAGEOT.
Belgian Council of Prizes, 1919
In case No. 53, sailing vessel Agiena, 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 sailing vessel Agiena, formerly belonging to H. J. Hill of Rotterdam, be declared legal and valid for the benefit of the Belgian State;
In view of the other documents incorporated into the pleadings;
Whereas, M. Bauss, attorney, enrolled in the list of attorneys of Antwerp, has presented himself for the following second party: [List of English underwriters omitted.]
Having heard the Commissioner of the Government, Van Gindertaelen, as well as the said M. Bauss, in their respective pleas and motions ;
Whereas, the English underwriters, listed under the letters A, B, C, D, E, present themselves as having insured the ship Agiena against risks of war and total loss, and as being subrogated in all the rights of the Dutch owner, M. H. J. Hill, in consideration of having indemnified him for the said total loss;
Whereas, their intervention in the case is admissible;
Whereas, it is otherwise in the case of the English underwriters listed under the letters F to P who availed themselves of the subrogation in the rights of the Eerste Hollandsche Vensterglasfabriek relating to the insured merchandise;
Whereas, in fact the Commissioner of the Government sues only for the validation of the capture of the ship, and whereas, the cargo which has not been made the object of any capture on the part of the Belgian State, and over which no rightful claim arises, cannot give occasion for a decision by the Council ;
Whereas, the intervention of the said English underwriters is henceforth nonadmissible;
Whereas, public international law is the sum total of the rules that have emanated from natural reason, consecrated by customs and treaties, which fixes the mutual relations of states in the general and public interest;
Whereas, if the natural law of nations, which finds its source in reason and conscience, should inspire positive law as an ideal toward which it must strive, it has no immediate and practical value and it cannot be reverted to except in default of treaties or usages resulting from the common consent of states; whereas, the sources of the positive law of nations can be summed up under the following two general heads: principal and 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);
1 Translated from the Moniteur Belge, 1920, p. 405.
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