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Whereas, the act of force, namely, the maritime capture, engenders rights which are recognized by international usage and which the prize jurisdictions have the right to sanction legally; whereas in default of a decision invalidating the prize, force alone can finally annul the effects thereof;
Whereas, the decisions originating with the prize tribunals of a belligerent, when they have been rendered regularly, and when they do not violate the essential rules of the law of nations, can thenceforth serve as a basis for the creation of new laws for the benefit of the opposing belligerent and to the detriment of a subject of a neutral power; whereas, it does not devolve upon the latter to criticize such decisions for other reasons when the new captor accepts them and has an interest in availing himself thereof; whereas, the Gelderland was declared a valid prize by the Hamburg tribunal for the reason that it had sailed for the purpose of serving the maritime interests of the enemy and that it had been covered by an enemy charter:
Whereas, in the absence of an international agreement on this subject, the Prize Court of Hamburg has in the present case only made use of its right of interpreting and applying, within the limits of its competence, the national laws of its country, and, it has not thenceforth violated any principle whatsoever of the law of nations;
Whereas, the Stoomvaart Maatschappij Nederlandsche Lloyd appeals in vain to article 440 of the Treaty of Peace, which stipulates that the Allied and Associated Powers reserve the right to examine, in such manner as they may determine, the decisions and decrees of German prize courts, whether affecting the property rights of nationals of those Powers or of neutral Powers.
Whereas, in that case we are dealing with a condition imposed upon Germany and relative to the ships and cargoes captured by her but not recaptured by the Allies, and, whereas, the intention does not in any way exist to trace to the prize tribunals of the Allied Powers the obligation of controlling the German decisions which might be favorable to them in so far as they form the basis of their own rights, or of those of their nationals; whereas, moreover, the Belgian Government has not up to the present time availed itself of the privilege reserved to it by Article 440, and, whereas, if it should eventually exercise the privilege, the revision of the German decisions would doubtless take place by way of governmental and diplomatic action, and not through the medium of the prize courts, organized for the purpose of passing judgment on the validity of the prizes made by the Allies; whereas, the Stoomvaart Maatschappij Nederlandsche Lloyd maintains finally that the Gelderland was captured and seized for having rendered services to the Allies, and, whereas, it is a principle that in such a case the recaptured vessel should be restored to the neutral owner; whereas, the interested firm, as well as its sister firm the Scheepvaart en Kolenmaatschappij of Rotterdam, appears to have had principally in mind not to render service to the Allies, but to look to its commercial interests by assuring the supply to Holland of English coal, the exportation of which the British Government authorized to neutral countries only in consideration of the corresponding importation of a certain quantity of goods destined for its own country, but whereas, even supposing that the Gelderland had been captured while in the service to the Allies, this circumstance would in itself, not be of such a nature in the present state of legislation or of international usages, to bind the Belgian State to release the prize;
Whereas, according to the doctrine of certain authors and early French jurisprudence, in case of recovery of a neutral ship, if the original prize has been declared valid according to the laws of the enemy country, the neutral no longer had any basis for a claim, since by the effect of the prize he lost his property in the ship, and the ship was adjudged to the captor; whereas, exception was made to this rule only if the neutral ship destined for a French port had been seized by the enemy solely because of the contraband articles or other effects that it was carrying (See Dalloz, Répert. V., Prizes Maritimes, No. 198, and De Pistoye-Duverdy II., p. 120);
Whereas, this exceptional concession to the rights of neutrals was far from being recognized by the other maritime countries; whereas England has never admitted this concession, either for allied property or for neutral property, except under condition of reciprocity, and upon payment of oneeighth of the value as salvage (Naval Prize Act of 1864); and, whereas, with regard to Holland, in spite of a reciprocity agreement concluded with England some years before, she refused in 1748 to admit this restriction, of the right of recovery of its privateers, however legitimate it might be, whereas, when an English vessel, the Lydia, after having been captured by a French privateer, was recaptured by a Dutch vessel and escorted to Zierikzee, and was reclaimed by England, the States General replied that the recapture belonged jure belli to the recaptors (Martens, Armat. 163 and note);
Whereas, France herself subsequently abandoned every idea of obligatory concession, and in 1870 gave absolute instructions which comprised only a slight restriction on the right of recapture: “The recovery of a national vessel,” it is said, “will not form the basis of any right over the recaptured vessel. If the recaptured vessel is a neutral it will be seized as an enemy, if it has remained in the possession of the enemy more than twenty-four hours. If the vessel has not remained in the possession of the enemy for twenty-four hours, it will be released purely and simply." (Georges Féron, Paris, Doctoral Thesis on the Right of Maritime Capture, p. 106);
Whereas, although it is true that these instructions add to the statement of the rule of the right of recapture the words:"Save for exceptional circumstances, the application of which His Majesty reserves,” we are dealing there only with the part left to the initiative of the Government which can always be exercised relative to the seasonableness of the capture and under the form of restitution freely consented to, and in no respect with a latitude given to the tribunals called upon to pass judgment on the validity of the prizes, which have only to investigate whether the prize is legal according to the principles of international law;
But, whereas, moreover, the distinctions and restrictions in question above did not have any reason for existence and only found their justification very frequently in former privateering warfare, in which the vessel was captured without the original prize having been declared valid by the prize court of the enemy; whereas, if, on the other hand, such a judgment of validity had been rendered, the term “recapture” or “recovery” could not be properly used and the prize was a new one which was governed with respect to all, neutrals as well as allies, by the original rules;
Whereas, as Calvo in his Droit International, 5th edition, 1896, Vol. 5, paragraph 3198, states: “The principles generally admitted by the legislation of the chief maritime nations are as follows: Recapture is possible only if the prize has not yet been adjudged; until a tribunal has rendered judgment, the fate of the prize is uncertain; neither the captor nor the Government to which he is subject have any rights over the vessel or over its cargo, and as the prize depends only upon the right of the stronger, it can be annulled by force; the recapture can, therefore, by special application of the jus postliminium annul the original capture. But once a judgment has been pronounced, the prize becomes legally the property of him to whom it has been awarded; and if the ship is later captured by the enemy, it is just as if we were dealing with a new prize. Yet the recapture (that is, in the absence of every judgment), does not confer upon the recaptor the rights of the captor; it has effects which are essentially negative. The recaptor is bound to respect the goods which he has saved from the hands of the enemy, except that he is entitled to claim for his troubles and his losses a remuneration, the amount of which varies according to the particular legislation of the various countries on this point.”
"If the case, however, be that of a foreign vessel, asserted to be neutral," Wheaton says in his Elements of International Law, vol. 2, "the seizure of this vessel by the enemy does not render it ipso facto the property of the enemy, since its confiscation has not yet been pronounced by the competent judge. Until that judgment has been pronounced, the vessel thus navigating under the neutral flag loses neither its national character nor its rights; although it has been seized as prize of war, it may ultimately be restored to the original owner. Under such circumstances, the recapture of this vessel cannot transfer the property to the recaptor. It followed that the vessel in question was not confiscable by the mere fact of its having been captured by the enemy. Before such a sentence could be pronounced, the French tribunal must do what the enemy's tribunal would have done: it must determine the question of neutraility, and that being determined in favor of the claimant, restitution would follow of course.” And, moreover, the same author, in order to justify a right of recovery in case of actual recapture added simply: “These violations of the ancient law of nations, committed in the course of the last European War (1870), in many cases made of the release of neutral property from their cruisers and from their Prize Courts (that is, before they had been adjudicated), a great service entitling to a remuneration in the form of a right of recovery to him who had effected the recapture of this property."
Whereas, therefore, no international usages exist in the sense of the thesis maintained by the Stoomvaart Maatschappij Nederlandsche Lloyd; whereas, the necessities of modern warfare appear to have hindered up to the present the conclusion of an international convention prescribing in an absolute manner and even when no judgment has been rendered validating the prize, the restitution of every private vessel and especially of every neutral vessel captured in time of war by a belligerent and recaptured by the other belligerent;
Whereas, in this regard, the international regulations on maritime prizes, formulated by the Institute of International Law in 1887, were not reproduced by The Hague Convention, in which the contracting Powers have, however, stipulated the restrictions which they have deemed it necessary to make upon the right of capture of enemy merchantmen, as well as the rights and duties of neutrals, and which do not include any exception relative to the right of recapture of neutral vessels; whereas, the general principle, whose existence the said convention implicitly recognizes for the benefit of the belligerents, remains thenceforth applicable to the case in hand;
Whereas, it has, therefore, been established that the Gelderland, at the time when it became the object of the Belgian capture, was German property, and, therefore, liable to be legally confiscated, and, whereas, the original neutral owner is not entitled to the restitution of the ship;
And, whereas, moreover, the German naval authorities have caused not only the Gelderland, but also twelve other ships to be sunk in the ports of Bruges or their appurtenances; whereas, one of these thirteen ships, namely, the S.S. Brussels, was sunk somewhat to the right and a little to this side of the head of the mole of Zeebrugge, another in the channel of approach to the sluice, and the others in the docks of the ports of Bruges and of Zeebrugge; whereas, these operations, which formed an indivisible and systematically concerted single act, had the manifest object of effecting the bottling up of the ports of Bruges, already notably obstructed as a result of the heroic act of war of the British navy, and of hindering the Allied Powers from seizing these ships about to fall into their hands, in order to use them for the transportation of troops and material of war, or of provisions for the use of their armies; whereas, the German authorities have, thenceforth, acted for a clearly determined military and defensive purpose;
Whereas, in sinking the Gelderland under these conditions after a detention of almost two years, the German naval authorities have committed an act of appropriation jure belli, characterized and definitive in such a way that if, hypothetically, a regular decision had not been rendered previously, validating the prize, such an act would have taken the place thereof with regard to the recaptor, the Belgian State, and that in every case this act permitted the latter to seize in its turn and to use against the enemy material which the latter had transformed into an instrument of war for his defense;
Whereas, even if it is freely granted that prior to the destruction, the original neutral owner of the ship had remained the legitimate owner, he would then have only a claim for indemnity against the German State by reason of the arbitrary and illegal acts of the agents of the latter;
Whereas, having regard to the principles of international law, such destructions, committed by an enemy driven back to defeat, and without any case of actual force majeure, must be condemned, but, whereas, it is no less certain that according to the rules which govern land warfare and a fortiori maritime warfare, the Belgian State is justified in capturing a vessel which the enemy has treated in the most characteristic way as his own property for the organization of his defense and in pledging eventually his responsibility on the basis of a pecuniary compensation toward the interested third party ;
Whereas, moreover, no argument could be based upon the conditions of the armistice ordering the liberation of the neutral ships seized by the Germans in the Black Sea, since the latter were not captured by the Allies, as the Gelderland was, at the time when the armistice intervened;
FOR THESE REASONS: The Council, having heard the Commissioner of the Government, Van Gindertaelen, in his pertinent motions, rejecting all contrary claims as unfounded, and attesting that the Stoomvaart Maatschappij Nederlands Lloyd estimates the litigation at one million franes from the point of view of competence, declares effective and valid the capture of the steamer Gelderland, and decrees that it will belong in its totality to the Belgian State. Expense as in law.