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Italian Prize Courts (1866–1942)

Published online by Cambridge University Press:  12 April 2017

Angelo Piero Sereni
Angelo Piero Sereni*
Affiliation:
New School for Social Research, New York
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Extract

The Italian Code for the Merchant Marine enacted in 1865, four years after the proclamation of the Kingdom of Italy, and which in part is still in force, was intended to regulate all legal aspects of navigation in peace and wartime. It therefore contained provisions (Arts. 225–229) dealing with prize jurisdiction. Article 225 provided: “Judgment on the lawfulness of captures and on seizures shall be pronounced by a special commission which will be appointed by royal decree according to the rules to be enacted by special regulation.”

Type
Research Article
Information
American Journal of International Law , Volume 37 , Issue 2 , April 1943 , pp. 248 - 261
Copyright
Copyright © American Society of International Law 1943

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References

1 Royal decree No. 2979, June 20, 1866.

2 Instructions of the Minister for the Navy, June 20, 1866, published by Fiore, P., Nouveau Droit International (1886), Vol. 3, p. 720 Google Scholar.

3 Royal decree No. 396, Aug. 16, 1896, in Gazzetta Ufficiale del Regno d’Italia, Aug. 17, 1896.

4 Gazz. Uff., Sept. 15, 1896.

5 Published in Gazz. Uff., Dec. 15, 1896. See on this case Brusa, E., L’affaire du Doelwyk in 4 Rev. Gén. de Droit Ini. Pvb., 1897, p. 157 ff.Google Scholar; and Fedozzi in 29 Rev. Droit Int., et Lég. Comp., 1897, p. 55 ff.

6 Case of the Clawki. It reached Tripoli in ignorance of the state of war on Oct. 7, 1911, when the city had been occupied by the Italians. Its release was ordered by the Prize Commission, Dec. July 7, 1915.

7 Gazz. Uff., Dec. 9, 1911.

8 The decisions are published in Atti della Reale Commissione delle Prede, Rome, 1912.

9 The question whether a ship, the Kaisserié, was an enemy transport or a hospital ship, and as such exempt from capture, was held to be one for the decision of the commission.

10 On Oct. 4, 1911, Italy issued a proclamation prohibiting transportation of contraband of war to Turkey either directly by sea or through transshipment or by land.

11 Italy declared the blockade of the Turkish coast of Libya on Sept. 29, 1911 (modified Oct. 19, 1911); of the Turkish coast of the Red Sea on Jan. 21…22, 1912 (widened Apr. 5, 1912); and of the island of Rhodes on May 11, 1912. The question whether the Italian blockade of the Libyan coast was effective was decided in the affirmative by the commission, without sufficient consideration, in the San Nicola case, Atti, cit., p. 383.

12 Cases of the Carthage and the Manouba, decided by the Hague Permanent Court of Arbitration, May 6, 1913 (Scott, The Hague Court Reports, 1, 1915, pp. 329 ff., 341 ff.). They involved the lawfulness of the diversion to Italian ports and detention of two French ships suspected of transporting contraband of war and enemy troops. In both cases Italy was condemned to pay an indemnity.

13 Cases of the French ships Tavignano, Camouna and Gaulois. The first of them was stopped and the other two fired upon by Italian warships. The parties appointed a commission of inquiry and the dispute was settled by agreement May 2, 1913, whereby Italy consented to pay Frs. 5,000 for individual losses. (Scott, op. cit., p. 413 ff.)

14 Cases of the ships Sahare, San Marco, San Giorgio, Timavo and Grado. Prize Comm. Dec. July 31, 1919, Gazi. Uff., Jan. 16, 1920.

15 Art. 243 permitted enemy merchant ships which were in Italian waters at the outbreak of the war to leave with a safe conduct.

16 Royal decree No. 659, May 16, 1915, in Gazz. Uff., May 22, 1915.

17 Gazz. Uff., June 12, 1915. By Royal decree No. 699 of May 25, 1915, the King appointed a General Lieutenant to whom he delegated his ordinary powers, including that of issuing decrees. Decrees issued by the General Lieutenant are referred to as “Lieutenant’s decrees”.

18 Lieutenant’s decree No. 957, June 17, 1915.

19 Ibid., No. 1014, June 24, 1915, in Gazz. Uff., July 9, 1915.

20 Ibid., Art. 4.

21 Nationality (nazionalità) as distinct from citizenship (cittadinanza) was determined chiefly with regard to the ancestry and political sympathy of the individuals in question. In cases of corporations, the nationality of the majority stockholders and of the members of the board of directors controlled.

22 Lieutenant’s decree No. 1605, Nov. 11, 1915.

23 Exchange of notes Jan. 15–26, 1917, approved by Lieutenant’s decree No. 482, Feb. 25, 1917.

24 Gazz. Uff., June 11, 1915.

25 Gazz. Uff., Aug. 18, 1915.

26 Rules concerning the right of prize were enacted on different occasions during the war. They were reduced to final form by Lieutenant’s decree No. 600, March 25, 1917.

27 Gazz. Uff., July 5, 1915. These rules were slightly modified on Sept. 13, 1915, Gazz. Uff., Sept. 14, 1915.

28 The decisions are published in Ministero della Marina, Senterne della Commissione delle Prede, Rome, 1927. The principal legislative documents concerning the Prize Commission and its decisions were published by Fauchille, P. and Basdevant, J., Jurisprudence italienne en matière de prises maritimes, Paris, 1918.Google Scholar

29 Lieutenant’s decree No. 839, June 3, 1915, contained the first contraband list, which was thereafter repeatedly enlarged.

30 Italy declared the blockade of the coasts of Austria-Hungary and Albania on May 26, 1915 (limited, May 30, 1915; extended July 4, 1915); of Bulgaria on Oct. 20, 1915; and of Greece on Dec. 8, 1916.

31 Royal decree No. 1415, July 8, 1938, in Gazz. Uff., Sept. 15, 1938. For a survey of the laws, see Steiner, H. A., “Italian War and Neutrality Legislation,” in this Journal, Vol. 33 (1939), p. 151 ffGoogle Scholar.

32 Title 4 (Arts. 227–279) deals with aërial warfare. Rules concerning aërial navigation (treatment of enemy and neutral aircraft and of goods on board; contraband of war; unneutral service; visit and capture; prize judgment) are along the line of corresponding rules concerning maritime navigation.

33 Royal decree No. 1823, Sept. 5, 1938, in Gazz. Uff., Dec. 9, 1938.

34 War Law, Art. 2: “For the purposes of this law, State territory comprises all territory subjected under any title to the sovereignty of the Italian State, including territorial waters with the subjacent bed of the sea, and the superjacent aërial space.”

35 Royal decree No. 566, June 10, 1940, in Gazz. Uff., June 15, 1940. The Italian War Law was declared applicable to Albania by an Albanian Royal decree of the same day.

36 Art. 159 of the War Law limits contraband of war to seven items (arms and ammunition, tanks, warships, etc.); but Art. 160 provides that by royal decree and after notification to neutrals, the list may be enlarged as long as it does not include medical supplies and the materials necessary to the internal operation of the ship on which they are found. By note of June 10, 1940, and by avis aux navigateurs of the following day, the Italian Government reestablished the distinction between absolute and conditional contraband. Items indicated in Art. 159 were included in the list of absolute contraband, which comprises also such other items as combustibles, lubricants, money and securities. Food, forage, clothes and things necessary to their production constitute conditional contraband. Royal decree of July 16, 1940 (Gazz. Uff., Aug. 9, 1940), which approved the lists, provides (Art. 1) that any other item comprised in the British and French lists will be considered contraband by Italy. Royal decree No. 1893, Dec. 16, 1940 (Gazz. Uff., Jan. 29, 1941) provides that the decree of July 16, 1940, will apply with regard to France and Great Britain from June 11, 1940, and with regard to Greece from Oct. 28, 1940.

37 Royal decree No. 655, June 16, 1940, in Gazz. Uff., Aug. 9, 1940.

38 Ministero della Marina, Bollettino del Tribunale delle Prede, Vol. 1, Rome, 1941. The publication has been reviewed in this Journal, Vol. 36 (1942), p. 344.

39 39 War Law, Art. 214; Dec. No. 1 (Polinnia, cargo), Boll., ibid., p. 19.

40 Ibid.

41 War Law, Art. 214. In the first World War the Italian Prize Commission declared itself without jurisdiction in the case of the Monfaleone (Sentenze, ibid., No. 160, p. 292), a floating pontoon belonging to the Austrian State and constructed for commercial purposes. The court added that the Italian Government had a right to appropriate the pontoon without necessity of a prize adjudication.

42 Law No. 1902, Dec. 16,1940, in Gazz. Uff., Jan. 30, 1941; and Royal decree law of March 6, 1941, in Gazz. Uff., Apr. 18, 1941.

43 Judges were appointed by Royal decree No. 220, Apr. 1, 1941, in Gazz. Uff., Apr. 18, 1941.

44 War Law, Arts. 219 and 279.

45 Dec. No. 7 (Ulmus), Boll., ibid., p. 63.

46 See also Royal decree No. 1886, Nov. 25, 1940, in Gazz. Uff., Jan. 28, 1941, sequestrating private enemy ships which had not been permitted to leave or did not leave Italian waters within the period of grace.

47 Boll., ibid., p. 67.

48 Dec. No. 3 (Beatrice C., cargo), Boll., ibid., p. 35; Dec. No. 4 (Beatrice C., cargo), Boll., ibid., p. 42. For an Italian precedent during the first World War, see case of the Ambra (cargo Oerlikon), Sentenze, ibid., No. 16, p. 84.

49 During the first World War the Italian Prize Commission held that it had jurisdiction of actions for the condemnation of craft captured: (a) on dry land where they had been hauled possibly to avoid capture (the Beleno, Sentenze, ibid., No. 61, p. 177); (b) in interior waters (the Cervignano and Friuli, Sentenze, ibid., No. 50, p. 129); and (c) in non-navigable rivers where their presence was only occasional and transitory (Leonilde and Ottilia, Sentenze, ibid., No. 58, p. 170).

50 The defendant’s answer is published in Boll, ibid., p. 3 ff.

51 Accord, in the first World War, the Italian cases Mikail, ibid. (Sentenze, ibid., No. 55, p. 145) and Anthippi (Sentenze, No. 56, p. 154).

52 Dec. No. 5 (Beatrice C., cargo), Boll., ibid., p. 49; and Dec. No. 1 (Polinnia, cargo) Boll., ibid., p. 23.

53 Rules of Procedure, Art. 20.

54 Dec. No. 1, Boll., ibid., p. 21.

55 Ibid., pp. 22–23. “By consistent adjudications of the prize courts the only one who is entitled to oppose the claim for condemnation of the prize is the owner of the captured thing. This right is usually denied to other classes of interested persons with few unsettled exceptions such as, sometimes, that of the creditor having a mortgage on the thing. On this delicate point, however, the tribunal does not have to pass judgment now.”

56 Decisions No. 2 and 3, supra.

57 To this effect see the Italian case Mikail, decided during the first World War (Sentenze, ibid., No. 50, p. 129).

58 War Law, Art. 280, subd. 1: “Whenever an enemy person is sued before a judicial court, the latter appoints counsel for the defendant if it deems that he cannot adequately provide for his own defense.”

59 Dec. 1, Boll., ibid., p. 21.

60 A literal precedent for this provision is to be found in Art. 10 of the Italian Prize Regulations enacted during the first World War by Lieutenant’s decree No. 600, March 25, 1917.

61 Dec. No. 3, Boll., ibid., p. 53. Since in Italian prize procedure the State is always the actual plaintiff in condemnation proceedings, the English principle that enemy ownership of the goods is conclusively presumed if no owner comes forward within a specified period of time from capture does not find application.

62 Dec. No. 10 (Vulcania, cargo), Boll., ibid., p. 83. See also Dec. No. 5, Bott., ibid., p. 49.

63 Boll., ibid., p. 19.

64 The Kyzikos (Sentenze, ibid., No. 15, p. 70); and the Mikail (Sentenze, ibid., No. 55, p. 145).

65 Boll., ibid., pp. 23, 34, and 59.

66 The Italian Prize Court applied the same principle in the first World War (the Ambra, Sentenze, ibid., No. 16, p. 84).

67 Dec. No. 1, Boll., ibid., p. 24.

68 For an Italian precedent during the first World War, see the Moravia (cargo), Sentenze, ibid., No. 20, p. 92.

69 The Moravia (cargo), Sentenze, ibid., No. 9, p. 53.

70 Dec. No. 6 (Tergestea, cargo), Boll., ibid., p. 59.

71 Dec. No. 6. ibid., 59.

72 Ibid., p. 61.

73 Dec. No. 1, ibid., p. 24.

74 Dec. No. 3, ibid., p. 34, and Dec. No. 4, ibid., p. 42.

75 Dec. No. 9 (Maria, cargo), Boll., ibid., p. 79.

76 Dec. No. 6, ibid., p. 55.

77 Ibid., p. 55.

78 Dec. No. 2, ibid., p. 28, and Dec. No. 3, ibid., p. 34.

79 Dec. No. 4, ibid., p. 42, and Dec. No. 10, ibid., p. 84.

80 Dec. No. 6, ibid., p. 61.

81 Dec. No. 8 (Juta bales), Boll., ibid., p. 73. The court held that the Italian-French armistice of June 24, 1940, Art. 16, submitted French maritime traffic to German-Italian control. Maritime traffic to France not under Axis control was therefore still subject to the exercise of belligerent rights, including visit of ships and capture of cargoes, on the part of Germany and Italy.

82 Dec. No. 6, ibid., p. 62.

83 Dec. No. 3, pp. 34–35; Dec. No. 4, p. 42; and Dec. No. 6, p. 59.