ture had been made by a naval and not by "an ordinary land force subject to military persons."

In Mrs. Alexander's Cotton,3o a joint expedition of federal forces consisting of gunboats and a body of troops had proceeded up the Red River to take a Confederate fort. A party from one of the gunboats landed on a plantation and took possession of cotton on land owned by Mrs. Alexander, carrying it to a place in Illinois where it was libelled as prize of war. The Red River was not navigable to sea-going vessels, but seems to have been used by smaller steamboats; nor does it empty directly into the sea, but flows into the Mississippi River three hundred and thirty-four miles above the mouth of the latter. Although the Supreme Court found the capture to have been justified by the Captured and Abandoned Property Act of March 3, 1862, it held that under the statute of July 17, 1862,32 excluding property on land from the category of prize for the benefit of captors, the cotton in question, though subject to seizure, was not maritime prize.3

31

33

The fullest discussion in the American courts is that by Judge Miller in United States v. 269 Bales of Cotton.34 Cavalry forces of the United States had embarked at Helena, Arkansas, on boats and had gone into Mississippi and seized cotton on land as prize of war, and carried it back to Arkansas. A proceeding in prize was begun on behalf of the federal government. The court did not doubt that prize jurisdiction extends over the Mississippi River, but relied on the fact that this capture had been made on land by exclusively land forces, and it was not shown that the transporting vessels had been under the navy's control. As these vessels " were in no sense

30 (1864) 2 Wallace 404. It was in reliance on Mrs. Alexander's Cotton that the Court of Claims decided that cotton seized at Apalachicola, Florida, in a warehouse on the river bank, by naval forces, had been improperly condemned as prize. Cook v. U. S. (1873) 9 Ct. of Claims 288.

31 12 Stat. at Large 820. The validity of this Act was later attacked on the ground that it was approved by the President after the adjournment of Congress. Hodges v. U. S. (1883) 18 Ct. of Claims 700; U. S. v. Weil (1894) 29 Ct. of Claims 523.

32 12 Stat. at Large 606. The seizure in Mrs. Alexander's Cotton antedated the Act of July 2, 1864, 13 Stat. at Large 377, which enacted that "no property seized or taken upon any of the inland waters of the United States by the naval forces thereof, shall be regarded as maritime prize." This statute was applied in The Cotton Plant (1870), 10 Wallace 577, to a capture made by a naval force on the Roanoke River in North Carolina, at a point 130 miles from the mouth of the river. Mr. Justice Strong said that "Congress probably anticipated, especially in view of the state of war when the Act was passed, that most of the captures on the rivers would be made by the army, and thought it unwise to continue two modes for the disposition of the property taken."

Cf. United States v. Winchester (1878), 99 U. S. 372, where it was held that the admiralty jurisdiction of the United States District Courts did not extend to a seizure on land by a naval force. Under the Act of 6 August, 1861, though the jurisdiction of United States District and Circuit Courts was extended to captures on land, such proceedings did not necessarily constitute causes in admiralty so as to authorize resort to admiralty procedure in all cases. Union Ins. Co. v. United States (1867) 6 Wallace 759. 34 (1868) 1 Woolworth 236.

war vessels," it was thought that the admiralty courts of the United States had no prize jurisdiction, "unless the circumstances of the capture show some element of a force operating from, or on, the water," and the libel was therefore dismissed.

35

In line with this holding, condemnation by an admiralty court of a Confederate boat, seized on the Tennessee River by river gunboats under the control of the War Department but commanded by a naval officer and "a part of the naval forces on the western waters," was upheld in Oakes v. United States, on the ground that it was a naval capture and not a land capture. In White v. Red Chief, a steamer was taken from the Confederates by military forces of the United States at Port Hudson on the Mississippi River, and when libelled by a former owner, it was held that no condemnation was necessary to pass the title to the United States government, but that it had passed by the seizure. The former owner seems to have lost the enemy character which he had at the time of the seizure and, unless an enemy owner after losing his enemy character cannot dispute the title to maritime prize where there has been no condemnation, the case must have involved an application of the law of land warfare.

In The Siren,37 the United States Supreme Court dealt with a statute authorizing the distribution of prize money, and it was held that no division of prize money was provided for where a vessel (apparently ocean-going) had been taken by joint action of land and sea forces in the Ashley River in South Carolina, although the vessel had properly been condemned as prize.

A somewhat similar case arose out of the Spanish-American war, United States v. Dewey,38 but in this case the only question was one of distribution of prize money among captors under the statutory provision. The seizure of naval stores and other property had been made on land at a naval station at Manila by United States naval forces, and in holding that the prize money should be distributed Chief Justice Fuller stated that "it would be spinning altogether too nicely to hold that because enemy property on land cannot be taken in prize by land operations, public property destined for hostile uses, and stored on seashore in an establishment for facilitating naval warfare, might not be made prize, under the statute, when captured by naval forces operating directly from the sea."

35 (1898) 174 U. S. 778. A report of the case in the Court of Claims is to be found in 30 Ct. of Claims 378.

36 (1870) 1 Woods 40.

37 (1871) 13 Wallace 389.

38 (1902) 188 U. S. 254 (The Manila Prize Cases).

The U. S. Judicial Code of 1911 (36 Stat. 1087) amended in 1917 (40 Stat. 395) confers upon the District Courts original jurisdiction "of all civil causes of admiralty and maritime jurisdiction . . ; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize."

But "maritime jurisdiction" may not be extended to all inland waters in the United States. Stapp v. Steamboat Clyde (1890), 43 Minn. 192.

RECENT ITALIAN CASES

Few cases seem to have arisen in recent years where seizures were made on European rivers, but the recent Italian cases have presented some very interesting problems. In the case of the Cervignano and Friuli,39 two boats anchored in an Austrian river port were taken by the Italians by order of the Italian occupying forces. It is not clear whether the force was a military or a naval one. The capture was opposed in a prize court on the ground that the law of maritime prize did not extend to unarmed boats at anchor in a river. In view of the lack of authority, the Italian court felt itself justified in adopting a policy of reprisal and in condemning the boats. The reprisal was based on two cases in the German prize courts. The first was a case where Belgian boats had been seized at anchor in Duisberg on the Rhine, and the second was The Primula,40 where a Russian vessel (apparently ocean-going) was seized in the Tave and condemned in a German prize court. The Italian court also relied on the fact that the waters in which the Austrian boats were taken were waters in which "fluvial navigation was effected in continuance of maritime navigation" and that the boats were actually seized in maritime navigation.

In the case of the Leonilda and Attilia," small craft taken on the Isonzoto River by the commander of Italian troops "pour le compte de la marine royale" were condemned as prize. The Italian court emphasized the fact that it was not proved that the craft could not be utilized for petit cabotage or even for maritime voyages. It stated that the power of capture was limited only with reference to neutral territorial waters or waters neutralized by convention.

In another Italian case,42 decided in May, 1917, various small craft had been seized on the Isonzoto River where they had been abandoned by the Austrians. The seizure was effected by the commander of the Italian troops "pour le compte de la marine royale." Some of the boats were property of the enemy state. In condemning these the court relied on Article 53 of the regulations annexed to the fourth Hague Convention of 1907, being of the opinion that the Article was applicable by way of analogy in maritime war as well as in land war.43 As to the other privately-owned craft, the court thought that it would be an absurd result to allow vessels subject to capture at sea to escape such liability by reason of their getting into a

39 (1917) Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prise Maritimes, p. 178. This Italian decision was referred to by Lord Sterndale in In Re Craft Captured on Victoria Nyanza (1918) 3 B. & C. Prize Cases, 295, 298.

40 Entscheidungen des Oberprisengerichts in Berlin, p. 17.

"Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Maritimes, 194. 42 (1917) Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Maritimes, p. 199. Cf., also, The Monfalcone (1919) ibid., p. 497.

43 The Italian Court seems to have been influenced by the fourth voeu expressed by the 1907 Hague Conference, to which reference has been made, ante, note 2.

river. It also emphasized the fact that in this case the smaller craft were utilized for purposes other than navigation in this particular river. Moreover, the Isonzoto, which seems to have been non-navigable at the point where the seizure was made, was treated as a sort of accessory to the sea.

RECENT GERMAN AND BELGIAN DECISIONS

44

In the German case referred to by the Italian court, The Primula, little reference was made to the limits of maritime law. The Fenix 45 seems to have been seized in the Elbe by a German torpedo-boat and it was treated as a capture at sea, for the purpose of bringing the case within Article 3 of the sixth Hague Convention; 46 but the only question considered by the court was the application of the sixth Hague Convention, as the vessel had left her last port of departure before the outbreak of hostilities. In one instance, the German prize court has upheld a capture of a sea-going vessel in the river port of Antwerp.47 Several German writers have dealt with the question.48 In the earlier editions of his treatise, Liszt went so far as to say that a battle between two vessels on the Elbe would be governed by land law,19 but this suggestion has not been repeated in the latest edition.

Several seizures of German-controlled boats in Belgian ports were made by Belgian troops in 1918. The Agiena 50 was a Dutch sailing vessel, seized as prize by the Germans on the high seas, declared good prize by a German prize court, and captured by Belgian troops in the inland port of Bruges. The Brussels 51 was an English steamer, seized as prize by German naval forces on the high seas, declared good prize by a German prize court, and captured by Belgian troops in the port of Zeebrugge where it had been sunk. The Gelderland 52 was a Dutch steamer, seized as prize by a German aeroplane on the high seas, declared good prize by a German prize court, and

"Entsheidungen des Oberprisengerichts in Berlin, p. 17.

45 Ibid., 1914, p. 1; 10 American Journal of International Law, p. 909.

46 It was pointed out by Sir Samuel Evans in The Moewe [1914] 1 British and Colonial Prize Cases, 60, 74, that the French "en mer" in Article 3 of the Sixth Convention is not accurately translated by "on the high seas:" "where the Conventions intend to describe ‘upon the high seas,' the appropriate phrase 'en pleine mer' is used."

47 The Comte de Smet de Naeyer (1916) Entscheidungen des Oberprisengerichts in Berlin, p. 209.

48 Huberich & King, The Development of German Prize Law, 18 Columbia Law Review, p. 503, 514.

49 Liszt, Das Volkerrecht (2d ed., 1902) p. 317. Cf. 1 Pistoye et Duverdy, Prises Maritimes, (1859) p. 112.

50 See the Moniteur Belge, 1920, p. 405. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 117.

51 See the Moniteur Belge, Nov. 6, 1919, p. 5894. The decision of the Belgian Council

of Prizes is translated in 16 American Journal of International Law 127.

52 Ibid., 1919, p. 5772. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 129.

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.

THE DANUBE ARBITRATION

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.

54 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.