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Published online by Cambridge University Press: 04 May 2017
On September 19, 1910, at The Hague, plenipotentiaries of the following nations: Germany, United States of America, Argentine Republic, Austria-Hungary, Chile, Denmark, Spain, France, Great Britain, Japan, Norway, Netherlands and Sweden, signed an instrument entitled Protocole Additionnel á la Convention XII de la Haye du 18 Octobre, 1907. The protocol is by its own provisions (Art. 8) to be considered as forming an integral part of the Convention creating the International Court of Prize; and the acceptance of the protocole additionnel is likewise made a sine qua non to the acceptance of the original convention.
The protocole additionnel seeks to create a different remedy and a modified procedure par dérogation to Articles 28 (paragraph one), 29 and 45 (paragraph two) of the Prize Court Convention and by eliminating Article 8 of the convention entirely and substituting therefor a method preserving the appearance of an action de novo in the International Court and confining its judgment to the ascertainment of the damages to be allowed an injured claimant. It is the practical embodiment of the voeu adopted by the London Naval Conference in 1909 at the instance of the delegation of the United States (acting under instructions from their government); and is intended to offer a means whereby certain nations named as parties to the protocol may obviate constitutional difficulties in the way of their ratifying the original convention.
1 An English translation is given in American Journal of International Law, Supplement to Vol. V, pp. 95-99. The French text is given by Charles Dupuis in the Appendix to Le Droit de la Guerre Maritime (Paris, 1911) with, however, a material omission, namely, the entire second paragraph of Article 2.
2 Article 9. L’adhesion á la Convention est subordonné à l’adhésion au présent protocole additionnel.
3 For a statement of these difficulties, see “The International Court of Prize,” by James Brown Scott in American Journal of International Law, Vol. V, pp. 302-324. Professor Scott was the plenipotentiary of the United States by whom the protocole additionnel was signed.
4 It is interesting to consider in this connection the explanation, which was commended by the American delegation, given in the London Conference by M. Renault in presenting the report of the committee to which the American proposal, later embodied in the protocole additionnel was referred: “* * * seules les trente et une Puissances Signataires pourront décider ces modifications, toutes étant d’accord. Le Gouvernement des États-Unie d’Amérique pourra faire, après la Conférence, une proposition dans un esprit conforme à celui qui est indiqué par le voeu, et cette proposition devra être admise par l’ensemble de tom les États Signataires.” Page 223. Proceedings of the International Naval Conference, British Parliamentary Papers, Miscellaneous, No. 5 (1909).
5 Cf. Article 9 of the Prize Court Convention. The Naval Prize Bill presented by the British Ministry and passed by the House of Commons, Dee 8, 1911, but rejected by the House of Lords, Dec. 15, 1911, provides in Sec. 28, Part III: “The High Court and every prize court in a British possession shall enforce within its jurisdiction all orders and decrees of the International Prize Court in appeals and cases transferred to the Court under this Part of this Act.” (1 and 2 George V, Bill 334.) The Ministry recently announced its intention to re-introduce the bill.
6 Article 2, Protocole additionnel.
7 Dupuis, Charles, Le Droit de ia Guerre Maritime (1911), p. ix.
8 As one instance, M. Charles Ozanam in his La Juridiction Internationale des Prises Maritimes (1910), at p. 223, speaking of the voeu adopted by the London Naval Conference, says: “Cette dualité nous parait fâcheuse. * * * il est à craindre que l’opinion publique ne perçoive pas bien nettement l’argutie constitutionelle qui motive cette dissemblance de traitement.”
9 Quoted by Scott, J. B., in article cited, p. 312.
10 Niemeyer, Theodor, Das Seekriegsrecht nach der Londoner Deklaration (1910), p. 11.
11 Article 1, Protocole additionnel.
12 Pohl, Heinrich, Deutsche Prisengerichtsbarkeit (1911), p. 163.
Niemeyer, Theodor, work cited, p. 11.
Ozanam, Charles, work cited, p. 224, says: “Cet inconvénient, du reste, amènera peut-être alors toutes les puissances signataires à insérer elles aussi cette réserve, de sorte que l’égalité serait rétablie sur le pied du système Américain.”
It is but just to say as to the last two writers that their opinion was expressed before the publication of the protocole additionnel and as to the first that it is apparent he likewise had no knowledge of it.
13 Pohl, work cited, pp. 159-163 inclusive.
14 Article 8, paragraph 2, sentence 2.
15 Parenthesis mine. Pohl studiously avoids drawing his conclusion to this extent—which, as I see it, he must do to be consistent. If the captor may sell, he may, by parity of reasoning, destroy ship or cargo.
16 Work cited, p. 160.
17 Let it not be overlooked, as first made by the United States, it extended to all signatories.
18 Cf. Gaius IV, 48.
19 Proceedings of the International Naval Conference, p. 223.
20 Including the belligerent himself.
21 Applicable, of course, only to Powers having ratified the same.
22 We should not lose sight of the legal effect of war on treaty obligations and on the legal relations of the parties.
23 Compare generally Article 7 of the convention. The article does not make the classification given above. This classification, it is believed, is the logical result of the plan in its entirety.
24 The phrase “une juridiction des prises” is not to be translated “a Prize Court,” as in “Encylopaedia of the Laws of England,” 2nd edition, Vol. XI, p. 663, or “a prize court” as in American Journal of International Law, Vol. II, Supplement, p. 175. The official German translation is “Prisengerichtsbarkeit,” not “Prisengericht.” The French phrase includes all the courts, trial and appellate, having to do with prize causes. We would suggest “prize courts” or “a prize judicature” as much better than “a Prize Court.” The text speaks for itself. The translation, “prize courts” is adopted in the pending British Naval Prize Bill (1 and 2 George V, Bill 334, p. 15).
25 This clause of the convention ousts the appellate jurisdiction of the Supreme Court of the United States over all prize causes originating in the District Court of the District of Columbia. This is the only judicial district in the United States in which a prize cause may be prosecuted through three national courts. See Sec. 250 of the Act of Congress approved March 3, 1911 (The Judicial Code Act) and Sees. 84 and 226 of the Act of Congress approved March 3, 1901 (District of Columbia Code Act).
26 This would not be true as to those nations claiming the benefit of the protocole additionnel, should the same be ratified. With the protocol in force and the law as it now stands, it would be possible, under the clause cited, for a claimant to prosecute his case through the national courte and the International Court of Prize contemporaneously. If he invokes directly the International Court and abandons his action in the national courts, he must give up all hope of recovering the specific property taken from him, which, of course, will then be condemned by default.
27 Cf. Actes et Documents de la Seconde Conjérence de la Paix—Session of July 4, 1907, Vol. II, p. 788, and Session of July 11, 1907, Vol. II, pp. 801, 811.
28 As to the last point, it is but right to say I have not seen it suggested anywhere on the part of United States. It is a rule of our municipal law which I am assuming the courts would be bound to regard.
29 Of the twelve cases submitted, the decision of the Supreme Court were sustained in six and overruled in six.
30 Decision reported in 5 Wallace (72 United States Supreme Court Reports), pp. 517-536.
31 Ibid., pp. 535-536.
32 The full report of the proceedings before the commission is given in History and Digest ef the International Arbitrations to which the United States has been a Party, by John Bassett Moore, Vol. 4, pp. 3935-3948.
33 To be excepted from the operation of this rule are those few Powers with which the United States has obligated itself to enforce the contrary doctrine by its ratification of Convention XIII, relating to the rights of neutrals in maritime war, adopted at the Second Peace Conference.
34 It does not impair our argument, on the contrary, it emphasizes it, to note that it is possible, in certain cases, that the national courts may be more generous and liberal in their construction of some aspect of the law of prize than the International Court itself, and thus the dual system at times work to the advantage of the neutral or even of the enemy. As to the United States, this is not at all improbable. To mention a recent instance, the Supreme Court in the Cases of The Paquete Habana and the Lola (175 U. S. Reports, pp. 677-714), decided Jan. 8, 1900, not only granted the public enemy a persona standi in court (Lord Stowell always held the enemy absent by operation of law), but also resolved a mooted question of international law in his favor (over the dissent of three of its own members), and reversed the decree of condemnation in the trial court and actually gave the public enemy a judgment for damages, not against the captors, but against the sovereign United States — a relief which it would have denied one of its own citizens if he had not first obtained the consent of the United States to the suit by an act of Congress. It is sincerely hoped the necessities of war will never restrict the degree of magnanimity exercised m this case.
35 Identic Circular Note of the Secretary of State (Secretary Knox) to all the signatory Powers of October 18, 1909, given in American Journal of Intebnational Law, Vol. IV, Supplement, p. 107.
36 Ibid., p. 105.
37 American Journal of International Law, Vol. IV, Supplement, p. 107.
38 Cf. The case of the Actœon, 2 Dodson’s Admiralty Reports, 48, given also in Roscoe’s English Prize Cases, Vol. II, p. 209.
39 Baty, T., in Britain and Sea Law, p. 3.
40 In the case of The Peterhoff, $32,968.64 for costs and expenses and $50,000.00 for counsel fees were deducted from the proceeds of a cargo adjudged illegally captured. Cf. The Peterhoff in Blatchford’s Prize Cases, 381, 463-550; 5 Wallace (72 U. S. Sup. Ct. Reports) 28, and Moore International Arbitrations, etc., Vol. 4, p. 3839.
41 Cf. Baty, work cited, p. 62.
42 Cf. Perels, F., Das öffentliche Seerecht der Gegenwart, p. 309, paragraph 58.
43 Jeeker, et al. v. Montgomery, in 13 Howard Reports, 498 (1851).
44 Act of Congress of March 3, 1861, 12 Statutes at Large, 752, § 2.
Great Britain, through its Minister, Lord Lyons, promptly remonstrated against this law. The matter was referred to the Attorney-General, who held the law a valid exercise of the power granted Congress by the Constitution to make rules concerning captures on land and water. But he admitted he was “not aware of any settled doctrine of the law of nations” that permitted a belligerent “at its own pleasure and convenience to appropriate the prize to its own use before condemnation.” He recommended that the government abstain from using the authority granted, “if there be any danger of dissatisfaction on the part of foreign Powers.” Opinion of Atty. Genl. Bates to Secretary of State Seward of Sept. 14, 1863, in Vol. 10, Opinions of the Attorney General, pp. 519-522.
If the law is constitutional, the prize courts of the United States will continue to sustain all acts of confiscation done thereunder, though the International Court of Prize may fulminate against it ever so often.
46 Revised Statutes, § 4624: “Whenever any captured vessel, arms, munitions, or other material are taken for the use of the United States before it comes into the custody of the prize court, it shall be surveyed, appraised, and inventoried, by persons as competent and impartial as can be obtained, and the survey, appraisement, and inventory shall be sent to the court in which proceedings are to be had; and if taken afterward, sufficient notice shall first be given to enable the court to have the property appraised for the protection of the rights of claimants and captors. In all cases of prize property taken for or appropriated to the use of the government, the department for whose use it is taken or appropriated shall deposit the value thereof with the assistant treasurer of the United States nearest to the place of the session of the court, subject to the order of the court in the cause.”
Section 4622, Revised Statutes, provides that “if the captured vessel, or any of its cargo or stores, are such as in their judgment may be useful to the United States in war, they (the prize commissioners) shall report the same to the Secretary of the Navy.”
Paragraph 24 of General Orders No. 492 of June 20, 1898, Instructions to the U. S. Blockading Vessels and Cruisers during the Spanish-American War, is a concrete re-assertion of the authority to appropriate a captured vessel or cargo, regardless of their national character, to an immediate public use before condemnation. For. Rel. 1898, p. 782. The same rule was included in the Code of Naval War, General Orders No. 551, Navy Department, June 27, 1900.
46 Cf. The Nuestra Señora de Regla, 108 U. S. Supreme Court Reports, 92-103 (1883).
The necessary appropriation to carry out the decree awarding damages was made by Act of Congress of May 1, 1884 (23 Statutes at Large 15). The seizure was made in 1861.
Restitution was also decreed in the case of The Peterhoff. See 5 Wallace Reports (72 U. S. Reports), 28-62.
47 One recalls the experiences of the crews of the Knight Commander and the Thea at Vladivostock and of the Hipsang at Port Arthur during the Russo-Japanese War. Cf. Takahashi, Sukuyé, International Law applied to the Russo-Japanese War, pp. 314, 322.
48 The alleged ground for the seizure of The Nuestra Señora de Regla. See Moore’s International Arbitrations, etc., Vol. 2, p. 1017.
49 Cf. The Sir William Peel, 72 U. S. Supreme Court Reports, page 536.
50 Cf. p. 808.
“* * * ainsi la conservation de la paix sera mieux assurée” (Preamble to the Convention).
51 One recalle the instant effect of the demand of M. Poincaré in January last for the release of the Carthage and the Manouba. When he reported his action to the Chamber of Deputies, he was given an oration seldom equalled.
51 Cf. Niemeyer, work cited, p. 34. “Diese Momente gehören zu den kalten Wirklichkeiten, welchen die Wissenschaft Rechnung zu tragen hat. Vor ihnen die Augen zu verschliessen, entspräche der Klugheit des Vogels Strauss.”
As enlightened a government as Great Britain once spoke of certain illegal acts of confiscation of neutrals’ cargoes as “purchases of said cargoes on behalf of our Government.” See De Martens Recueil de Traités, IV, 605.
53 Cf. The Peterhoff (1865), Blatchford’s Prize Cases, 620, 19 Federal Cases No. 11,025:
“The prize remains in the hands of the captor lawfully sequestrated, under a species of trusteeship, awaiting a trial in the courts of the nation seizing it. While undergoing the processes of law necessary to ascertain its character» it is exempt from all power of the captors other than that of safe-keeping for the purposes of trial of determining its culpability.”
54 Or any other nation signatory. These are named only because their public credit has fluctuated notoriously even in time of peace.
War may lay even the greatest low.
55 No treaty in our history was ever declared unconstitutional. Cf. Butler, Chas. H., The Treaty Making Power of the United States, § 454.
56 When the convention was under discussion, July 11, 1907, our delegate, Mr. Choate, incidentally remarked, “As to our firm conviction in favor of the appeals being taken only from our own Supreme Court,” etc. Vol. II, Actes et Documents de la Seconde Conférence de L• Paix, p. 811. He was clearly unaware then of any constitutional difficulty in this form of appeal.
57 Cf. von Martitz, Ferdinand, in “Die neuesten Vorgänge in der Bewegung für internationale allgemeine Schiedsabkommen” in Internationale Monatschrift, Nov., 1911, pp. 149-150.
“Die auffallende Ratifikationsweigerung begegnete lebhafter Missbilligung der europäischen Regierungen, die an dem Tenor ihrer Verträge gar keine Bedenken gefunden hatten. Dase das von den Amerikanern mit Enthusiasmus propagierte Vertragssystem an einer internen Frage ihres Staatsrechts * * * scheitern sollte war seltsam genug. Als es im Jahre 1907 zur zweiten Haager Konferenz kam, spielte in den Debatten über den Weltschiedsvertrag auch dieser Punkt eine erhebliche Rolle. Er bildete mit den anderen einen Ablehnungsgrund.”