ing, the judge was of opinion that the vessel or goods ought to be released forthwith, an order for release would in general be made. A further hearing was not readily granted at the instance of the crown. If, on the other hand, the judge was of opinion that the vessel or goods could not be released forthwith, a further hearing would be granted at the instance of the claimant. If the claimant did not desire a further hearing, the vessel or goods would be condemned. This practice, though obviously unsuitable in many respects to modern conditions, had the advantage of demonstrating at an early stage of the proceedings whether there was a real question to be tried, or whether there ought to be an immediate release of the vessel or goods in question. In their Lordship's opinion, the judge should, before allowing a vessel or goods to be requisitioned, satisfy himself (having regard of course to modern conditions) that there is a real case for investigation and trial, and that the circumstances are not such as would justify the immediate release of the vessel or goods. The application for leave to requisition must, under the existing practice, be an interlocutory application, and, in view of what has been said, it should be supported by evidence sufficient to satisfy the judge in this respect. In this manner Lord Russell's objection as to the encouragement of unwarranted seizures is altogether obviated.

With regard to the third limitation, it is based on the principle that the jurisdiction of the prize court commences as soon as there is a seizure in prize. If the captors do not promptly bring in the property seized for adjudication, the court will at the instance of any party aggrieved compel them so to do. From the moment of seizure the rights of all parties are governed by international law. It was suggested in argument that a vessel brought into harbour for search might, before seizure, be requisitioned under the municipal law. This point, if it ever arises, would fall to be decided by a court administering municipal law, but from the point of view of international law it would be a misfortune if the practice of bringing a vessel into harbour for the purpose of search-a practice which is justifiable because search at sea is impossible under the conditions of modern warfare-were held to give rise to rights which could not arise if the search took place

at sea.

THE SPLENDID.

(Commission under the Convention between the United States and Mexico of April 11, 1839. Manuscript, Department of State.)

The brig Splendid was the property of Smith and Thompson, Elihu Sandford and Smith Tuttle, who were citizens of the United States, and residents of New Haven, in the state of Connecticut. That vessel, A. C. White, master, when lying in the port of Vera Cruz, was on the 3d of August, 1829, impressed and forcibly taken possession of by

the Mexican authorities, and employed until the 12th of that month, by them, in transporting troops and munitions of war, from that place to Tecoluta, for which, and for articles consumed, and taken by the soldiers, and for the hindrance and delay on her voyage, they claim the sum of two thousand five hundred dollars.

Upon due consideration of the case, the members of the board are unanimously of opinion that the Mexican government is justly indebted to Nathaniel Thompson, surviving partner of Smith & Thompson, and Elihu Sandford and Smith Tuttle, the sum of two thousand and ninety-three dollars and sixty-seven cents, for the impressment, seizure and employment of their brig as aforesaid; and do award and decide that the Mexican government shall pay to them the sum aforesaid of two thousand and ninety-three dollars and sixty-seven cents, being the fair price of the services exacted from the vessel and crew aforesaid, and the interest thereon included, at the rate of five per cent. per annum, up till this date, namely, this tenth day of March in the year eighteen hundred and forty-one.

THE LABUAN.

(American and British Claims Commission under Treaty of May 8, 1871. 4 Moore's International Arbitrations, 3791.)

Bailey and Leetham, claimants, No. 386. The claimants were the owners of the British steamship Labuan, which, on the 5th of November, 1862, was in the port of New York laden with a cargo of merchandise destined for Matamoras. On that day her master presented the manifest to the proper officer of the custom-house at New York for clearance, but such clearance was refused, and the refusal continued up to the 13th of December, 1862, on which day it was granted. The memorial alleged that this detention was by reason of instructions received by the custom-house officers from the proper authorities. of the United States to detain the Labuan, in common with other vessels of great speed destined for ports in the Gulf of Mexico, to prevent the transmission of information relative to the departure or proposed departure of a military expedition fitted out by the authority of the said United States. The memorial claimed damages for the detention $38,000, being at the rate of $1,000 per day, the memorial alleging that on a former seizure and detention of the same vessel, from February to May, 1862, when libelled as prize, this rate of compensation for the detention had been awarded to the owners by the District Court of the United States.

On the part of the United States it was contended that the detention of the Labuan, under the circumstances alleged in the memorial, was within the legitimate and recognized powers of the United States; that it was no infringement upon the rules of international law or upon any treaty stipulations between the United States and Great Britain,

and that it gave no right of reclamation in favor of the claimants against the United States; that the right of self-protection, by temporarily refusing clearance to vessels through which information of great importance in regard to military movements is likely to reach the enemy, must be regarded as of necessity permissible to a government engaged in war; that at the time of this detention important military movements then in progress in connection with the occupation of New Orleans by the federal forces, including the dispatch of General Banks, with large reinforcements, to supersede General Butler in the command there, were in progress, and made it of the utmost importance that these movements should be carefully kept secret from the rebels; that the detention of the Labuan was not by any discrimination against her as a British vessel, or against British vessels as such. All vessels capable of such a rate of speed as to make their departure dangerous in this regard were detained alike; that no claim had ever been made by the British government, through the usual diplomatic channels, upon the United States for compensation; and that it could not be believed that such a claim would not have been made if Her Majesty's government had considered such a claim valid. The counsel for the United States cited, in this connection, the letter of Mr. Stuart, Her Majesty's minister at Washington, to Mr. Seward, of 1st August, 1862 (U. S. Dip. Cor. 1862, 1863, pt. 1, p. 273), upon a somewhat analogous question, in which Mr. Stuart says:

"I have been instructed to state to you that Her Majesty's government, after considering these dispatches, in connection with the law officers of the crown, are of opinion that it is competent for the United States, as a belligerent power, to protect itself within its own ports and territory by refusing clearances to vessels laden with contraband of war or other specified articles, as well as to vessels which are believed to be bound to Confederate ports; and that so long as such precautions are adopted, equally and indifferently in all cases, without reference to the nationality or origin of any particular vessel or goods, they do not afford any just ground of complaint."

The case of the detention of the Labuan, it was contended on the part of the United States, was governed by the same principles and justified by the same rules as the cases referred to by Mr. Stuart. The counsel referred to the decision of the commission upon the American claims against Great Britain, growing out of the prohibition of the exportation of saltpetre at Calcutta (American claims, Nos. 11, 12, 16, 18), hereinbefore reported, and in which such prohibition was held by the commission not to involve a violation either of international law or of treaty stipulation, and urged that the principles which would sustain the validity of such prohibition must also include such a case as the detention of the Labuan.

The counsel for the claimant maintained that the detention of the Labuan was in effect a deprivation of the owners of the use of their property for the time of the detention for the public benefit; that it

was in effect a taking of private property for public use, always justified by the necessity of the state, but likewise always involving the obligation of compensation. He cited 3 Phillimore, 42, and Dana's Wheaton, 152, note.

The commission unanimously made an award in favor of the claimant for $37,392.

CHAPTER XI

CAPTURE AT SEA; EXEMPTION FROM CAPTURE; RECAPTURE; RESCUE1

THE OSTSEE.

(Privy Council, 1855. 9 Moore, P. C. 150.)

The Right Hon. T. PEMBERTON LEIGH (March 29, 1855). On the 1st of June, 1854, the ship Ostsee sailing under the Mecklenburg flag, on her voyage from Cronstadt to Elsinore, was seized by Her Majesty's ship Alban, under the command of Captain Otter, and sent to London for adjudication as prize.

Upon the ship's papers and the examination of the master, the mate, and another of the crew, on the usual interrogatories, there appeared to be no ground for condemnation; and with the consent of the captors, on the 19th of August, 1854, an interlocutory decree was pronounced, by which the ship and cargo were restored to the claimants, but without costs and damages. From so much of the decree as refuses costs and damages to the claimants, the present appeal is brought.

It is agreed on all hands, that the restitution of a ship and cargo may be attended, according to the circumstances of the case, with any one of the following consequences:

First. The claimants may be ordered to pay to the captors their costs and expenses; or,

Second. The restitution may be, as in this case, simple restitution, without costs or expenses, or damages to either party; or,

Third. The captors may be ordered to pay costs and damages to the claimants.

These provisions may seem well adapted to meet the various circumstances, not ultimately affording ground of condemnation, under which captures may take place.

A ship may, by her own misconduct, have occasioned her capture, and in such a case it is very reasonable that she should indemnify the captors against the expenses which her misconduct has occasioned. Or she may be involved, with little or no fault on her part, in such suspicion as to make it the right, or even the duty, of a belligerent to seize her. There may be no fault either in the captor or the captured or both may be in fault; and in such cases there may be damnum absque injuria, and no ground for anything but simple restitution. Or

1 On recapture and rescue, see the remarkable case of The Agiena, decided by the Belgian Prize Court in 1920, Moniteur Belge, January 17, 1920, p. 404, English translation, 16 American Journal of International Law, p. 117 (1922). 2 The statement of facts and parts of the opinion are omitted.