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consignee, a Swedish subject, claimed the cargo and alleged by his affidavits that it had been bought by him partly for his tanning business in Sweden, and partly for sale to customers in that country. The President made the following order for discovery: “that the claimant do within twenty-one days make discovery on oath of all books of account, letter books, and usual commercial documents relating to the matters in question, including the claimant's business books from January 1, 1914, up to the date of seizure, showing all purchases from the shippers of the goods seized during the same period, or of goods similar thereto, and of the sales of such goods by the claimants, and all contracts, policies of insurance, cables and correspondence relating to the said purchases and sales; and also the same books and documents relating to such goods, or goods similar thereto, which were sold by the claimant for delivery in Germany during the same period." The order was made subject to evidence being filed that the Procurator-General had reason to suspect that the cargo had an enemy destination:
Held, that there was jurisdiction under the Order IX, r.1, of the Prize Court Rules to make the order, that the documents particularized therein related to the question in the action, and that the discretion of the President to make the order should not be interfered with.
THE "PRINZ ADALBERT
Judicial Committee of the Privy Council
July 3, 1917
A claimant to goods seized as prize must prove his right thereto at the date when he comes before the court as owner; it is not sufficient that he was owner at the date of the seizure.
When shippers of goods discount a draft upon the consignee and authorize the discounters to hand to him a bill of lading, to the order of, and indorsed by, the shippers, upon his acceptance of the draft, the intention to be inferred, according to general mercantile understanding, is that the ownership of the goods is to pass to the consignee when he accepts the draft. That inference may be modified, or rebutted, by particular arrangements between the shippers and the consignee, and is subject to the rules which arise out of a state of war existing or imminent at the beginning of the transaction. The transfer of the property upon the acceptance of the draft is consistent with the consignee being either a purchaser from the shippers or their agent for the sale of the goods.
1 Appeal Cases, 1917, p. 586.
Judicial Committee of the Privy Council
August 3, 1917 The Suez Canal Convention, 1888, to which Great Britain, Germany, and other Powers were parties, provided, by Arts. IV and VI, that the stay of prizes of war at Port Said or in the roadstead of Suez should not exceed a period of twentyfour hours, except in case of distress. By Art. IX the Egyptian Government, which at the material time was controlled by the British Government, was to take the necessary measures for the execution of the convention.
On August 15, 1914, a British cruiser captured a German steamship in the Red Sea and escorted her to Suez. The prize stayed in the roadstead at Suez for a period of thirty-two hours, a prize crew was then put on board, and she was taken to Alexandria, where she was condemned by the prize court:
Held, assuming that there had been a breach of the convention, that fact was not cognizable by the prize court as a ground for the release of the prize.
APPEAL from the judgment of His Majesty's Supreme Court for Egypt, sitting at Alexandria in prize (February 5, 1915).
The facts are stated in the judgment of their Lordships.
LORD PARKER OF WADDINGTON. A German vessel, being on a voyage from Colombo to Antwerp via the Suez Canal, was, on August 15, 1914, stopped by H.M.S. Black Prince in the Red Sea and ordered to proceed to Suez. It is not disputed that this amounted to a seizure as prize. The vessel arrived in the roadstead at Suez at 1 A.M. on August 17, and at 9 A.M. on the 18th left for Alexandria in charge of a prize crew. She arrived at Alexandria on August 20. The writ in the present proceedings was issued on October 23, 1914, on behalf of His Majesty's Procurator in Egypt asking for condemnation of the vessel as lawful prize.
It was not disputed before their Lordships' board that the seizure of the vessel on August 15 in the Red Sea was a lawful seizure as prize, such as in ordinary course would justify an order for condemnation. The appellant, however, relied on what happened after the seizure, coupled with the provisions of the Suez Canal Convention, 1888, as entitling the vessel to be released.
The first article of the Suez Canal Convention, 1888, provides that the Suez Maritime Canal shall be free and open in time of war as in time of peace to every vessel of commerce or of war without distinction
1 Appeal Cases, 1917, p. 620.
of flag. The fourth article provides that vessels of war of belligerents shall not revictual or take in stores in the Canal, or its ports of access, except in so far as may be strictly necessary, and that their stay at Port Said or in the roadstead at Suez, shall not exceed twenty-four hours except in case of distress. The sixth article provides that prizes shall be subjected in all respects to the same rules as the vessels of war of belligerents. It is said that the Sudmark stayed in the roadstead at Suez for more than twenty-four hours, and thereby committed a breach of these provisions in consequence of which she ought to be released.
That the vessel did remain in the roadstead at Suez for more than twenty-four hours is certain; but their Lordships entertain some doubt whether in so doing she committed a breach of the convention. The captain, in his affidavit of October 18, 1914, says that on reaching Suez he went to the British consulate and requested leave to take in provisions and water, which leave was given. He also says that he was ordered by the captain of H.M.S. Chatham, then at Suez, to leave for Alexandria the next morning, but refused unless he were allowed to proceed with his own officers and crew. It is at least arguable that under these circumstances there was such a case of necessity or distress as would render the twenty-four hours' rule inapplicable. Their Lordships will, however, assume that the rule was broken, and will proceed to consider the consequences of such breach.
The convention, which is an international agreement, imposes on the contracting Powers a number of obligations, which, except in the case of the Egyptian Government and the Imperial Ottoman Government, are purely negative. On the Egyptian Government and the Imperial Ottoman Government alone is any positive obligation imposed. By Art. IX the Egyptian Government is within the limits of its powers resulting from the firmans to take the necessary measures for insuring the execution of the convention, and, in case it has not the necessary means at its disposal, is to call on the Imperial Ottoman Government, and the latter government is then to take the necessary measures, giving notice thereof to and concerting with the Powers therein referred to. But for the fact that the Egyptian Government was de facto controlled by the government responsible for the breach in question, the fact that neither the Egyptian Government nor the Imperial Ottoman Government intervened would have been sufficient proof that the breach (if any) was purely technical, and did not call for any action on their part.
leave to cause its release. Lordships cannot think that the captor's prize court has any jurisdichas been an unneutral act, to release the prize on that account.
But even if this inference does not under the circumstances arise, the question remains as to whether a court of prize can properly constitute itself the guardian of the convention and invent and exact penalties for its nonobservance, although no such penalties are imposed by the convention itself. In their Lordships' opinion this question can only be answered in the negative. The jurisdiction of a court of prize does not embrace the whole region covered by international law. It is confined to taking cognizance of and adjudicating upon certain matters (including capture at sea), which in former times were enumerated in the royal commissions under which the court was constituted and are now defined both by statute and by the royal commission issued at the beginning of the war (see Naval Prize Act, 1864, s. 55, sub-s. 5; Judicature Act, 1891, s. 4, sub-s. 1; and Royal Commission of August 6, 1914). It is true that the court must adjudicate on these matters in accordance with international law, including international agreements, but the international law which the court is to enforce is that branch of international law (including international agreements) which relates to matters of which the court is to take cognizance and upon which it is to adjudicate. It has no such roving jurisdiction as suggested by the appellant's counsel.
Considerable stress was laid in argument upon the recent decision of the Supreme Court of the United States in the case of the steamship Appam. In their Lordships' opinion that decision has no application to the present case. According to the rules of international law, a prize may, under certain circumstances be taken into a neutral port, but its right to remain there is limited by the continued existence of these circumstances.
When these circumstances cease to exist it is the duty of the neutral to order it to leave forthwith, and if it fail to
If the neutral allow the prize to remain longer than is warranted by the circumstances it is no doubt guilty of an unneutral act, which may well be made the subject of diplomatic complaint. But their tion to entertain the question, or is bound, if it consider that there
Assuming that in the present case the Egyptian Government or the Imperial Ottoman Government may be looked upon as a neutral Power which has allowed a prize to remain in one of its ports longer than is
1 This JOURNAL, April, 1917, p. 443.