Whereas, it follows therefrom, as well as from the considerations made above, that the Agiena became a German vessel and that it was subject to capture when, on October 19, 1918, the Belgian troops captured it in the port of Bruges;

Whereas, while admitting, in default of greater precision on the part of the dossier, that the vessel was condemned on account of carrying contraband of war, notwithstanding Article 28 of the Declaration of London which forbade the treatment of glassware as such, the decision of the German prize jurisdiction is nevertheless possessed of a legal force imposing itself upon all and of such a nature as to form the basis of the right of capture of the Belgian State;

Whereas, it is true, the English underwriters in the case maintained, with documents in support thereof, that on July 23rd and 26th, 1917, that is to say, between the date of capture and that of the decision of the prize tribunal, they insured the hull of the ship for the benefit of the Dutch owner and that as a result of the payment of the indemnity by them for the total prize they have become subrogated to his rights with the consequence that the ship had become their property and was considered to be flying the English flag at the date of its recapture from the enemy;

But, whereas, this circumstance could not have the effect of modifying the juridical situation resulting from the German prize decison;

Whereas, in principle, the said underwriters could not have, with regard to the recaptor, more rights than the previous Dutch owner had, deprived of every remedy against the former; whereas, it is indifferent that the date of their title antedates that of the judgment validating the prize; whereas, the ship was captured and judged as a neutral vessel having infringed upon the rules of neutrality; and, whereas, it was recaptured as an enemy and neutral vessel before its original capture, the latter alone having to be considered in the present case;

Whereas, to admit a contrary solution would result in permitting the evasion of the consequences of the previously neutral character of the vessel in case it would be in order to treat differently neutral vessels and allied ships recaptured from the enemy;

But, whereas, as it has been shown, no difference is to be made between the two cases and restitution of the ship is not in order no matter what point of view is taken;

Whereas, it follows from these considerations that the recapture of the ship Agiena by the Belgian troops is permissible and valid with respect to the English underwriters in the case; that it would have been declared thus also with regard to the firm Nederlandsche Gist en Spiritus Fabriek, which, it is alleged, purchased the ship at the German prize office under date of October 5, 1918, that is to say, at the time when, given the military situation, there was reason to fear that the vessel would come into the hands of the Allies, and therefore, with the manifest object on the part of

the German authorities to evade the consequences of the enemy character of the vessel, and hence under such conditions that the transfer to a neutral flag must be considered void according to the incontestable principles of international law, confirmed by Article 56 of the Declaration of London;

FOR THESE REASONS:

The Council having heard the Commissioner of the Government, Van Gindertaelen, in his pertinent motions, rejecting all contrary claims as unfounded, declares inadmissible the intervention of the English underwriters listed under the letters F to P, and acknowledging to the English underwriters listed under letters A to E the fact that they estimate the litigation for each of them at more than 20,000 francs, declares legal and valid the capture of the sailing vessel Agiena, and decrees that this vessel shall belong in its totality to the Belgian State. Expenses as in law.

THE BRUSSELS1

Belgian Council of Prizes

Antwerp, October 23, 1919

In case No. 46, S.S. Brussels, the Council renders the following decision:

In view of the introductory petition presented by the Commissioner of the Government requesting that the capture of the steamer Brussels, of about 1380 tons, formerly belonging to the Great Eastern Railway Company, whose offices are at Harwich, be declared effective and valid for the benefit of the Belgian State;

In view of the other documents incorporated into the pleadings;

Having heard the Commissioner of the Government Van Gindertaelen in his reasons and motions;

Whereas, the steamer Brussels, flying the English flag and commanded by the late Captain Fryatt, was captured on the high seas by the German naval forces and taken to Zeebrugge; whereas, it was declared a legal prize by the decision of the Prize Court of Hamburg on November 15, 1916, confirmed by the Superior Prize Court at Berlin on July 29, 1917;

Whereas, it follows therefrom that the ship had become German property and that, according to the principles of the law of nations, it was subject to seizure when, in the month of October, 1918, the victorious Belgian troops captured it in the port of Zeebrugge, where it was sunk by the enemy;

Whereas, no objection could be made that, forming the subject of the recapture of an allied ship, this ship should, according to international 1 Translated from the Moniteur Belge, Nov. 6, 1919, p. 5894.

customs, have been restored to its former owner; whereas, in the first place, there does not exist any general usage, and even to a less degree any written international rule, binding the recaptor to restitution in such a case; whereas, the Hague Convention is silent on this subject; whereas, as the judgments of this court, dated October 17, 1919, in the case of the S.S. Midsland and Gelderland, declared, England herself has never admitted the restitution of an allied or neutral ship recovered from the enemy, except under the condition of reciprocity; whereas, in fact, no treaty of reciprocity exists on this subject between Great Britain and Belgium;

But, whereas, moreover, as appears from the same decisions, the recapture or recovery, with the rights and obligations which certain publicists of international law attach thereto, is possible only if no judgment validating the original prize has been rendered; whereas, in case of the existence of such a judgment, we are dealing with a new prize which is governed with respect to all neutrals as well as allies, by the ordinary rules, and which admits of no restriction upon the absolute rights of the captor;

Whereas, moreover, in every prize case there is a governmental phase in which the captor state may decide it opportune to act in a spirit of generosity toward an allied or neutral Power, and a contentious phase such as that in the present instance, in which the Prize Court vested with the litigation by the government of the captor state, has only to decide whether the prize was legitimately made according to the rules of international law;

Whereas, regardless of the regret that a Belgian prize court may feel in being compelled to retain an allied ship which has distinguished itself in the struggle against the common enemy, it could not, in the given case, allow itself to be guided by any other principles than those of the law, tempered according to the circumstances by justice, without deviating from its course of duty;

And, whereas, even if no judgment had been pronounced validating the German prize or if that prize were considered as not having been validly adjudged by the competent tribunal, the Belgian State would not in any less degree have derived as a result of the acts of the German authorities with regard to the ship a title to the prize in the juridical sense of the term, than it would have done later:

Whereas, in fact, as was found in the aforementioned judgments in the case of the Midsland and the Gelderland, the Brussels was sunk by the German naval authorities somewhat to the right and a little to this side of the head of the mole of Zeebrugge, that is with the manifest object of obstructing the passage to the sea; whereas, moreover, the aforementioned authoritites have caused twelve other ships to be sunk, either in the channel of approach to the sluice or in the floating docks of the ports of Brugge; whereas, all these operations formed an indivisible and systematically concerted unit with the double intention of bottling up the ports of Bruges,

already obstructed as a result of the heroic act of war of the British navy, and of hindering the Allied Powers from taking possession of these ships in order to use them for the transportation of troops, and material of war, or of provisions for the use of their army; whereas, the German authorities have thus acted for a clearly determined military and defensive object;

Whereas, in sinking the Brussels under the aforementioned conditions and after a detention of more than one year, these authorities have committed with regard to the ship an act of appropriation jure belli, characterized and definitive in such a way that with regard to the hostile belligerent, the Belgian State, which has captured the ship subsequently, this ship can and should be considered for this very reason as an enemy ship and of such a nature as to form a basis for the intrinsic right of the captor; whereas, only an eventual right to indemnity for the benefit of the injured private individual and against the German State by reason of such destruction, committed in the absence of any case of actual force majeure, is in order;

For these reasons:

The Council, having heard the Commissioner of the Government, Van Gindertaelen, in his pertinent motions and rendering judgment in the absence of all other interested parties, declares the capture of the steamer Brussels effective and valid for the benefit of the Belgian State, and decrees, consequently, that this steamer shall belong in its totality to the latter. Expenses as in law.

THE GELDERLAND1

Belgian Council of Prizes

Antwerp, October 17, 1919

In case No. 44, S.S. Gelderland, the Council renders the following decision:

In view of the introductory petition presented by the Commissioner of the Government requesting that the capture of the steamer Gelderland, formerly belonging to the Stoomvaart Maatschappij Nederlandsche Lloyd, whose offices are at Rotterdam, be declared effective and valid for the benefit of the Belgian State;

In view of the other documents incorporated into the pleadings;

Having heard the Commissioner of the Government Van Gindertaelen, as well as the said company, represented by M. Georges Vaes, advocate at Antwerp, in their respective reasons and motions;

Whereas, the steamer Gelderland, flying the Dutch flag, was captured on July 23, 1917, on the high seas, by a German aeroplane, while it was 1 Translated from the Moniteur Belge, 1919, p. 5772.

sailing from Newcastle to Rotterdam with a cargo of coal, because it was suspected of transporting contraband of war; whereas, being conducted to Zeebrugge, it was declared a valid prize by the Prize Court of Hamburg on May 31, 1918, and whereas, it was captured subsequently, in October, 1918, by the Belgian troops in a floating dock in the port of Zeebrugge, where it was sunk by the enemy;

Whereas, the judgment of the Prize Court has had the effect of transferring the ownership of the vessel in question to the German State, in conformity with the principles of international law and of German legislation; whereas, recourse against such a decision is not a bar to subsequent proceedings and the decision to be rendered on the appeal simply relates to or determines ex nunc the right of ownership;

Whereas, accordingly, the vessel captured by the Belgian troops when they seized the Gelderland in the waters of Zeebrugge, was an enemy vessel;

Whereas, although it is true that the capture did not effect a transfer of property, it did not to any less degree present an obstacle to the regularity of any subsequent decision of a German prize court pronouncing the liberation of the vessel; whereas, the military and naval situation of the German Empire was such that the vessel had to be considered as being definitively in the power of the Allies;

Whereas, the decision of the Supreme Prize Court of Berlin, rendered on October 24, 1918, on the appeal introduced by the interested company, which freed the vessel, is accordingly inoperative and only the Hamburg decision validating the prize remains effective;

Whereas, moreover, the act on the part of the German authorities in sinking the vessel without awaiting the result of the appeal from this decision, constituted a new and absolute bar to the subsequent possibility of the rendition of a decision by the Court of Appeals for any other purpose than to permit the interested company to claim damages from the German state; whereas, matters were no longer complete and the Greman Empire, having availed itself of an act of force in order to affirm its right of ownership over the vessel, had lost the right of recourse to prize procedure in order to have this right recognized or invalidated;

Whereas, it is certainly not permissible to maintain that because the capture was based upon a simple attack and an act of force, the effects thereof would be annulled by the loss of possession of the ship, which thenceforth would have to be restored to its original owner;

Whereas, in fact, in the present case the effects of the German capture have only been set aside with regard to the dispossessed enemy, and, whereas, they have not in any less degree constituted the basis of the right of the new captor, the Belgian State, without the original proprietor having been able to derive from the mere fact of dispossession a right to the restitution of his lost property;