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captured by Belgian troops in a floating dock in the port of Zeebrugge. In all of these cases, the Belgian Council of Prizes upheld the Belgian capture and declared the vessels to be the property of the Belgian State.53 But as the seizures were effected in Belgian waters the cases are of little value in distinguishing land and naval captures.


Among the numerous claims which came before the American arbitrator named under Article 300 of the Treaty of St. Germain, of September 10, 1919, was a claim by Roumania that seizures of enemy-owned boats on the Danube, effected by Roumanian naval officers, were to be "regulated by the international law pertaining to naval warfare, and therefore ought to be upheld."54 In rejecting this claim, Mr. Hines stressed the facts that the vessels in question were devoted to inland and not to maritime navigation; that they were registered in or identified with river ports; that they had not been taken on the high seas; and that at the time of their seizure they were engaged in inland navigation between Danube ports in Roumania and Danube ports farther

up the river. “The sole reason which can be suggested in order to justify the confiscation of such private property, contrary to the principles of land warfare, is the claim that the vessels were seized by officers who, although located in the ports of the river, were designated as naval officers. The arbitrator is of opinion that such a distinction would be devoid of substance under all the circumstances surrounding these particular seizures."

In view of the large competence conferred upon him by Article 300 of the Treaty of St. Germain, Mr. Hines found that the Roumanian prize courts had been ousted of any jurisdiction they might otherwise have had to pass upon the validity of seizures of Danube river vessels. But he stated that "certainly it is the exception rather than the rule that river vessels concerned in inland navigation are made the subject of proceedings in prize courts,” 55 and so he held that Article 378 of the Treaty of St. Germain, relative to prize court proceedings, did not apply to Danube river vessels.

53 See also The Roelfina, 16 American Journal of International Law 136, as to which the facts as to the Belgian capture are not so clear. Other Belgian decisions are reported in the British Year Book of International Law, 1921-22, p. 183 ff.

5 Hines, Determination in the Matter of Questions Arising as to Danube Shipping, p. 21.

55 “It may be mentioned that the Roumanian decree relative to the organization of the jurisdiction of maritime prize declares in Ch. I, Art. I, that the Roumanian state has the right to capture vessels serving as means of transport by waterways inscribed in official registers of the merchant marine. Likewise the Roumanian code of prize maritime jurisdiction declares in Ch. I, Art. I, that every navigable object of whatever nature inscribed in the registers of the merchant marine of the different states is regarded as a vessel of commerce. This indicates that maritime jurisdiction relates at least primarily to marine vessels." Hines, Determination in the Matter of Questions Arising as to Danube Shipping, p. 6.


The Hague Conventions concerning land warfare deal especially with the seizure of boats, in Article 53 of the regulations annexed to each of the Conventions.56 The substance of this provision had previously been included in the unratified projet of an international declaration concerning laws of war, adopted at the Brussels Conference in 1874.57 Article 6 of that projet permitted the seizure by occupying armies of boats "en dehors des cas régis par les lois maritimes," and provided for their return at the end of the war. At the Brussels Conference the insertion of this expression was the consequence of a request by the Spanish representative to insert after the word "vessel” the expression “appartenant à la navigation des lacs du continent, des fleuves et rivières qui ne sont pas navigables, en communication avec la mer";58 and he stated that it was his purpose to indicate clearly that no attempt was being made to deal with maritime law. The words finally inserted were suggested as a substitute by the Belgian representative who thought they would satisfy the desire of the Spanish representative. In the Hague Conference of 1899, the text of the Brussels regulation was changed, but these words of the Brussels Declaration were kept; and in the Conference of 1907 they were not materially modified.

One of the commissions of the Hague Conference of 1907 which had been considering amendments to the regulations annexed to the second Convention of 1899, dealt with the significance of these words. The rapporteur for the commission, Major-General Baron Giesl von Gieslingen, gave the following account of the commission's deliberations:

Le Délégué militaire du Japon a rappelé à cette occasion les réserves qui avaient été formulés par sa Délégation au sein de la Sous-Commission relativement à l'addition des mots 'sur mer,' une pareille disposition lui paraissant relever plutôt du programme de la Quatrieme Commission. Cependant, le Comité a cru devoir les maintenir, en considérant que le droit de capture maritime peut s'appliquer dans une guerre continentale au cas de navires saisis dans un port par un corps de troupes, notamment en ce qui concerne les navires destinés à la navigation fluviale.59

This seems to be a statement that maritime law would apply to boats seized in a port by land forces, particularly if the boats are destined for river navigation; but no reason is given, and it is very difficult to see why maritime law should apply "notamment" to boats destined for river navigation unless they are ocean-going boats. Commentators on the Hague Convention seem to have given very little attention to this expression, but it was referred to by counsel in The Thalia as follows:

56 The second Convention of 1899 and the fourth Convention of 1907. Higgins, Hague Peace Conferences, p. 206.

57 Actes de la Conference de Bruxelles, p. 363. 58 Actes de la Conference de Bruxelles, p. 154. 59 Actes et Documents, 1907, III, p. 27.

Admitting that capture may be made on rivers and lakes, which are not included in territorial waters, then there must be steamers and other kinds of vessels beside those afloat on rivers and lakes which are not governed by the rules of maritime law; because such vessels are recognized in the second paragraph of Article 53 of the Hague Treaty. 61


At the 1913 meeting of the Institute of International Law, an attempt was made to include in the manual of laws on maritime war a paragraph which would have had the effect of freeing craft on inland rivers from naval capture.62 Although the Institute refused to go so far, it did agree to add river boats navigating rivers, canals and lakes to the class of boats which should be exempt from capture because engaged in small local navigation.63 And it is interesting to note that the Institute's règlement for international rivers, adopted at Heidelberg in 1887, provided for applying to floating property on international rivers the same treatment as that accorded to enemy property in war on land.64

At the 1920 meeting of the International Law Association, the British Maritime Law Committee submitted a report on the laws of naval war which was drafted by a very able sub-committee.65 This report does not appear to have been adopted by the Association, 66 but it may be taken as some evidence of current opinion. The code of naval warfare embodied in the report deals with “the places where hostilities may be carried on” and provides: “The special rules relating to maritime war are only applicable to the open sea and the territorial waters belonging to or occupied by the belligerents, to the exclusion of those waters which, in respect of navigation, cannot be considered as maritime."

60 See Lawrence, International Law (5 ed.) p. 441; Spaight, War Rights on Land (1911)

P. 416.

61 (1905) Takahashi, Russo-Japanese War, p. 606. Article 53 of the Regulations was also construed by the Italian court in an opinion reported in Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Maritimes, p. 203: “L'article 53 de ce règlement déclare en effet que les forces militaires qui occupent un territoire peuvent s'approprier les moyens de transport et en général toute propriété mobiliere de l'État de nature a serviraux operations de guerre." And see ibid., p. 500. In The Anichab (1919) Probate 329, Article 53 was applied, at least by way of analogy, but Lord Sterndale refused to admit that the Prize Court had jurisdiction to fix the indemnity for which the article provides. Mr. Walker D. Hines, in the Determination in the Matter of Questions Arising as to Danube Shipping, pp. 9, 10, expressed the opinion that Article 53 applied only “to military authority over hostile territory that is actually placed under the authority of the belligerent army"; and he held that Article 53 "does not contemplate war material in actual hostile use at the time of seizure.”

62 Annuaire de l'Institut de Droit International, 1913, p. 191.

63 Article 47 of the Oxford Manual of the Laws of Maritime War provides: "Les bateaux exclusivement affectés a la pêche côtière, ou à des services de petite navigation locale, y compris ceux exclusivement affectés au pilotage ou au service des phares, comme aussi les navires destinés à naviguer principalement sur les fleuves, canaux et lacs, sont exempts de saisie, ainsi que leurs engins, agres, apparaux et chargements.” Annuaire de l'Institut de Droit International, 1913, p. 654.

64 "Article 40.—En cas de guerre entre les États rivereins, la propriété flottante sur un fleuve international, sans distinction entre la propriete neutre et la propriété ennemie, sera traitée suivant l'analogie de la protection de la propriété ennemie en cas de guerre sur terre.” Annuaire de l'Institut de Droit International, 1888, p. 187.


These authorities seem inadequate for drawing a confident conclusion as to the general applicability of the law of maritime warfare or the law of land warfare to captures on inland rivers. Taking the language of the earlier texts, one might conclude that the law of maritime capture is generally applicable; but this language is almost invariably used with reference to cases of seizures by naval forces or to cases in which the jurisdiction of prize courts is being defined.


Three factors must be considered in determining whether a particular capture is to be governed by the law of land, or by that of maritime, warfare: (1) the locality of the seizure; (2) the nature of the property seized; (3) the character of the force making the seizure.

A seizure of an enemy vessel made within a belligerent's own territorial waters at the outbreak of hostilities would seem to be subject to the municipal law and its provisions for dealing with enemy property. Perhaps the liberal protection, which had so generally been accorded to enemy property prior to 1914, cannot now, in the light of recent experience, be said to be required by international law.67 The municipal law is usually made to conform with general international usage, as in the sixth Hague Convention dealing with the treatment of ships in port at the commencement of hostilities. Enemy ships seized within a belligerent's own territory need be submitted to the jurisdiction of prize courts only for the satisfaction of neutrals. Within a belligerent's own territory, then, the problem is not so likely to arise as to the limits of land and sea warfare,68 although the problems of prize court jurisdiction and the distribution of prize money may be just as important as when the seizure is made elsewhere.

6 Report of International Law Association, Twenty-Ninth Congress at Portsmouth, 1920, p. 169.

66 Ibid., p. 224.
67 Cf. In re Ferdinand, Ex-T'sar of Bulgaria (1921] 1 Ch. 107.

68 One may query Professor Oppenheim's suggestion that as the seizure of means of transport is, according to Article 53 of the Hague Regulations, permissible in occupied enemy country, provided they are restored and indemnities paid after the conclusion of peace, "seizure must likewise—under the same conditions—be permissible in case these articles are on the territory of a belligerent.” Oppenheim, International Law (2d ed.) II, p. 140. If municipal law governs as to seizures on a belligerent's own territory, Article 53 may be in no way applicable.

But where a seizure is made in the territorial waters of the enemy, the question is plainly governed by international law. If the seizure is made in an enemy seaport and made by naval forces, there would seem to be no reason for not applying the same law as if it were made on the high seas. Nor would it seem material that the port is an inland port not open to maritime navigation, though in such ports neutrals are less likely to be concerned. The limitation in the Italian code that naval operations should be confined to territorial waters open to maritime navigation seems to have little to recommend it. On a large river like the Mississippi or the Danube, in spite of recent armament developments, it might still be possible to have extensive operations conducted by gunboats, and they might effect captures in ports where maritime navigation is excluded. If this has not been entirely excluded by long-range guns, the Italian limitation on naval capture seems impracticable. It would call for a special rule for large bodies of water like the Victoria Nyanza.

Something may be made to depend on whether the boats seized are oceangoing or devoted to inland navigation. The suggestion of the Italian court that it would be absurd to permit an ocean-going vessel to escape maritime capture by taking refuge in a river would seem to call for an application of maritime law to all captures of ocean-going vessels on inland rivers; but the possibility of capturing non-ocean-going vessels at sea will seldom exist, and land law might very well be applied in dealing with them. The two types may differ also in capacity to escape a belligerent's power and therefore to continue in enemy service; but a non-ocean-going vessel on a large highway like the Danube might easily elude belligerent capture by a voyage on the river. Since many river craft are small and engaged in local work for small traders, the same arguments which led to the exemption from maritime capture of small boats employed in local trade in the eleventh Hague Convention of 1907, would seem to call for some exemption for most river vessels,69 and this would seem to be an argument for the more lenient consequences of applying land law.

The nature of the force effecting the seizure seems also an important factor. To apply maritime law to seizures made by land forces would greatly complicate the operations of armies which are accustomed to deal with booty much more summarily than naval forces deal with prize. In some cases of continental warfare, it would mean that the title to property seized on rivers would have to await the adjudication of prize courts in order to satisfy neutrals. Armies act less formally in seizing property, and in seizing many kinds of property the distinctions usually possible in maritime warfare would

69 These arguments did not prevail during the past war as to tugs and lighters in a port, however. Deutsche Kohlen Depots (1916) 2 British and Colonial Prize Cases 439, (1919) A. C. 291.

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