Done and signed in duplicate, under the seal of the state, at the palace of the Tuileries, on the thirtieth day of the month of November, in the year of grace one thousand eight hundred and fifty-two. L. NAPOLEON.12

[Seal.]

By the Prince President:

DROUYN DE LHUYS.

THE ITATA.

SOUTH AMERICAN S. S. CO. v. UNITED STATES. (United States and Chilean Claims Commission under Convention of August 7, 1892. 3 Moore's International Arbitrations, 3067.)

See ante, p. 367, for a report of the case.

THE TINOS, BOGADOS, KYTHNOS, ANATOLIA, etc. (French Prize Council, 1917. Journal Officiel, January 9, 1918, p. 401.) In the name of the French people, the Prize Court has rendered the following decision between,

On the one hand, the owners and captains of the steamers Tinos, Bogados, Kythnos, Anatolia, Athena, Seriphos, Malta, Berthilde, Berger Wilhelm, Korana, Salona, Marienbad, and of the sailer Sabbadino, seized on September 1, 2, and 4, 1916, in the roads of the Piræus, Eleusis, and Syra by the allied naval authorities;

And, on the other hand, the Minister of the Navy acting in the name and as representative of the State and on behalf of the rightful claimants of the proceeds of prizes, according to the laws and regulations in force;

* * *

Having heard M. Henri Fromageot, member of the Court, in his report, and M. Chardenet, Commissioner of the Government, in his statements in support of his aforementioned motions, the Court, after due deliberation,

Whereas, on September 1, 2, and 4, 1916, the allied naval authorities in the Eastern Mediterranean have seized in the roads of the Piræus the German vessels Tinos, Bogados, Anatolia, and Seriphos, and in the roads of Eleusis the German vessels Athena, Malta, Salona, Berthilde and Berger Wilhelm, as well as the Austro-Hungarian steamers Korana, Marienbad and Sabbadino, and finally at Syra the German vessel Kythnos;

12 See criticism of the award in Dana's Wheaton, note 208, p. 526, and for an elaborate account of the origin, history and final settlement of this interesting episode, see 2 Moore's Int. Arb. 1071-1132.

See, also, A. de Lapradelle et N. Politis, Recueil des Arbitrages Internationaux, vol. I, pp. 635-660 (1905).

Whereas, the enemy nationality of said vessels, determined by the papers found on board, is expressly recognized by the claimant owners, all of German or Austro-Hungarian nationality; whereas, for this reason said vessels could be captured in conformity with the principles of international law, sanctioned by the Navy Orders of August, 1681;

Whereas, however, the owners contest the validity of the seizures by claiming that they took place in the territorial waters of Greece, the neutrality of which they invoke;

But whereas, it appears from the documents appended to the evidence that, according to the chronological history of the present war, since the outbreak of the war, Germany and her allies, after having used the Greek ports and waters as bases for obtaining supplies and undertaking naval operations, have made said waters the theatre of their hostilities; whereas, for example, from August 6 to 19, 1914, according to its own log-book, the German steamer Bogados, now captured, supplied the German cruisers Goeben and Breslau with coal in the roads of Rusa (Greece); whereas, on June 9, 1915, a supply base for providing enemy submarines with benzine was found at Samothrace (Agean Sea); whereas, on November 18, 1915, the existence of a similar base was discovered at Corfu and vainly protested on April 8, 1916, by the royal government then in power in Greece; whereas, on December 17, 1915, several other similar bases had to be destroyed on the coasts of Argolis, Crete and Cavalla; whereas, on January 6, 1916, important stores of arms and ammunitions, owned by the enemy, were reported to the German consulate in the port of Salonica; whereas, on January 22, 1916, an enemy submarine torpedoed an Allied transport at the point of Kara-Bouroum (Gulf of Salonica) in Greek territorial waters; whereas, on January 23, 1916, new enemy submarine supply bases were reported in the islets near Crete; whereas, on May 5, 1916, a German military dirigible, threatening to attack the port and roads of Salonica, had to be brought down by Allied flying squadrons; whereas, on May 9, 1916, German aeroplanes attempted to bombard the ports of Rhodes and Budrun; whereas, after having invaded Greek territory, the armed forces of the enemy have not hesitated on June 26, 27, 28, and August 19 and 30, 1916, to seize and proceed to occupy cities and ports of Greece by driving out the Greek forces and taking possession of the means of defence, and by attacking the allied armies of France, Great Britain and Russia, powers that are guaranteeing the independence of Greece;

Whereas, the claimants emphasize the fact that the contraband articles handled, and the contraband articles carried on by individuals. for the profit of the enemy cannot change the character of Greece as a neutral state;

But whereas, the acts herein mentioned are hostile acts committed by the forces and authorities themselves of the enemy in Greek

waters, ports and territory, although they may have been the facilities of private individuals;

Whereas, under these circumstances, without its being necessary to determine the attitude of the royal government then in power in Greece in regard to neutrality, it is sufficient to note that the succession of hostile acts committed by the enemy in the waters and territory of Greece has transformed it into a theatre of war and has deprived the enemy de facto of the advantages of a neutrality which the vessels of the enemy now vainly attempt to invoke;

Whereas, consequently in conformity with the body of international law, developed in the course of previous wars (Prize Court and High Prize Court of Japan, May 21, 1904, and May 30, 1905, the case of The Ekaterinoslav, pp. 51, 57, and 66; for the case of The Mukden, pp. 71, 77, 78, and 95-Japanese Prize Cases, pp. 4, 7, 14, and 16) the exception raised by the claimant owners is untenable; Whereas, the Court is asked to decide only on the validity of the capture of the ships and accordingly is not to pass judgment on the question of their cargoes, on granting the proceeds of the prizes; Whereas, the Minister of the Navy concluded that, since the prizes were made by the allied naval forces, the proceeds thereof should be divided in conformity with the Franco-British Agreement of November 9, 1914; whereas, it is in order to pass judgment on said conclusions;

Decides:

1. The capture of the German ships Tinos, Bogados, Kythnos, Anatolia, Athena, Seriphos, Malta, Berthilde, Berger Wilhelm, and of the Austro-Hungarian ships Korana, Salona, Marienbad, and Sabbadino, together with their rigging, tackle, equipment and supplies of every kind, seized on September 1, 2, and 4, 1916, in the roads of the Piræus, Eleusis and Syra by the allied naval authorities, is declared good and valid.

2. The net proceeds of the prize will be divided among the assigns, as provided by the Franco-British Agreement of November 9, 1914. 3. The objects and effects which are their personal property will be restored to the captains and members of the crews or to their assigns.

SECTION 3.-ABUSE OF HOSPITALITY

THE APPAM.

(Supreme Court of the United States, 1917. 243 U. S. 124, 37 Sup. Ct. 337, 61 L. Ed. 633, Ann. Cas. 1917D, 442.)

Mr. Justice DAY delivered the opinion of the court.18

These are appeals from the District Court of the United States for the Eastern District of Virginia, in two admiralty cases. No. 650 was brought by the British & African Steam Navigation Company, Limited, owner of the British steamship, Appam, to recover possession of that vessel. No. 722 was a suit by the master of the Appam to recover possession of the cargo. In each of the cases the decree was in favor of the libellant.

The facts are not in dispute and from them it appears: That during the existence of the present war between Great Britain and Germany, on the fifteenth day of January, 1916, the steamship Appam was captured on the high seas by the German cruiser, Moewe. The Appam was a ship under the British flag, registered as an English vessel, and is a modern cargo and passenger steamship of 7,800 tons burden. At the time of her capture she was returning from the West Coast of Africa to Liverpool, carrying a general cargo of cocoa beans, palm oil, kernels, tin, maize, sixteen boxes of specie, and some other articles. At the West African port she took on 170 passengers, eight of whom were military prisoners of the English Government. She had a crew of 160 or thereabouts, and carried a three-pound gun at the stern. The Appam was brought to by a shot across her bows from the Moewe, when about a hundred yards away, and was boarded without resistance by an armed crew from the Moewe.

*

*

At the time of the capture, the Appam was approximately distant 1,590 miles from Emden, the nearest German port; from the nearest available port, namely, Punchello, in the Madeiras, 130 miles; from Liverpool, 1,450 miles; and from Hampton Roads, 3,051 miles. The Appam was found to be in first class order, seaworthy, with plenty of provisions, both when captured and at the time of her arrival in Hamp. ton Roads.

The order or commission delivered to Lieutenant Berg by the commander of the Moewe is as follows: "Information for the American Authorities. The bearer of this, Lieutenant of the Naval Reserve Berg, is appointed by me to the command of the captured English steamer Appam, and has orders to bring this ship into the nearest American harbor and there to lay up. Kommando S. M. H. Moewe, Count

18 Parts of the opinion are omitted.

Zu Dohna, Cruiser Captain and Commander. [Imperial Navy Stamp.] Kommando S. M. H. Moewe."

Upon arrival in Hampton Roads, Lieutenant Berg reported his arrival to the collector, and filed a copy of his instructions to bring the Appam into the nearest American port and there to lay up.

On February 2d, His Excellency, the German Ambassador, informed the State Department of the intention, under alleged treaty rights, to stay in an American port until further notice, and requested that the crew of the Appam be detained in the United States for the remainder of the war. The prisoners brought in by the Appam were released by order of the American government.

On February 16th, and sixteen days after the arrival of the Appam in Hampton Roads, the owner of the Appam filed the libel in case No: 650, to which answer was filed on March 3d. On March 7th, by leave of court, an amended libel was filed, by which the libellant sought to recover the Appam upon the claim that holding and detaining the vessel in American waters was in violation of the law of nations and the laws of the United States and of the neutrality of the United States. The answer of the respondents to the amended libel alleged that the Appam was brought in as a prize by a prize master, in reliance upon the Treaty of 1799 between the United States and Prussia; that by the general principles of international law the prize master was entitled to bring his ship into the neutral port under these circumstances, and that the length of stay was not a matter for judicial determination; and that proceedings had been instituted in a proper prize court of competent jurisdiction in Germany for the condemnation of the Appam as a prize of war; and averred that the American court had no jurisdiction.

The libel against the Appam's cargo was filed on March 13th, 1916, and answer filed on March 31st. During the progress of the case, libellant moved the court to sell a part of the cargo as perishable; on motion the court appointed surveyors, who examined the cargo and reported that the parts so designated as perishable should be sold; upon their report orders of sale were entered, under which such perishable parts were sold, and the proceeds of that sale, amounting to over $600,000, are now in the registry of the court, and the unsold portions of the cargo are now in the custody of the marshal of the Eastern District of Virginia.

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*

From the facts which we have stated, we think the decisive questions resolve themselves into three: First, was the use of an American port, under the circumstances shown, a breach of this nation's neutrality under the principles of international law? Second, was such use of an American port justified by the existing treaties between the German government and our own? Third, was there jurisdiction and right to condemn the Appam and her cargo in a court of admiralty of the United States?