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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 postlimini of the orginal owner. (See Wheaton, loc. cit., in this sense.) ;

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 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 devolves 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;

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