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river. It also emphasized the fact that in this case the smaller craft were utilized for purposes other than navigation in this particular river. Moreover, the Isonzoto, which seems to have been non-navigable at the point where the seizure was made, was treated as a sort of accessory to the sea.

RECENT GERMAN AND BELGIAN DECISIONS

45

In the German case referred to by the Italian court, The Primula,“ little reference was made to the limits of maritime law. The Fenix seems to have been seized in the Elbe by a German torpedo-boat and it was treated as a capture at sea, for the purpose of bringing the case within Article 3 of the sixth Hague Convention; 46 but the only question considered by the court was the application of the sixth Hague Convention, as the vessel had left her last port of departure before the outbreak of hostilities. In one instance, the German prize court has upheld a capture of a sea-going vessel in the river port of Antwerp.47 Several German writers have dealt with the question. In the earlier editions of his treatise, Liszt went so far as to say that a battle between two vessels on the Elbe would be governed by land law, 49 but this suggestion has not been repeated in the latest edition.

Several seizures of German-controlled boats in Belgian ports were made by Belgian troops in 1918. The Agiena 50 was a Dutch sailing vessel, seized as prize by the Germans on the high seas, declared good prize by a German prize court, and captured by Belgian troops in the inland port of Bruges. The Brussels 61 was an English steamer, seized as prize by German naval forces on the high seas, declared good prize by a German prize court, and captured by Belgian troops in the port of Zeebrugge where it had been sunk. The Gelderland 62 was a Dutch steamer, seized as prize by a German aeroplane on the high seas, declared good prize by a German prize court, and

4 Entsheidungen des Oberprisengerichts in Berlin, p. 17.
46 Ibid., 1914, p. 1; 10 American Journal of International Law, p. 909.

46 It was pointed out by Sir Samuel Evans in The Moewe (1914) 1 British and Colonial Prize Cases, 60, 74, that the French "en mer" in Article 3 of the Sixth Convention is not accurately translated by “on the high seas:" "where the Conventions intend to describe 'upon the high seas,' the appropriate phrase 'en pleine mer' is used."

*7 The Comte de Smet de Naeyer (1916) Entscheidungen des Oberprisengerichts in Berlin,

p. 209.

48 Huberich & King, The Development of German Prize Law, 18 Columbia Law Review, p. 503, 514.

49 Liszt, Das Volkerrecht (2d ed., 1902) p. 317. Cf. 1 Pistoye et Duverdy, Prises Maritimes, (1859) p. 112.

50 See the Moniteur Belge, 1920, p. 405. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 117.

51 See the Moniteur Belge, Nov. 6, 1919, p. 5894. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 127.

62 Ibid., 1919, p. 5772. The decision of the Belgian Council of Prizes is translated in 16 American Journal of International Law 129.

captured by Belgian troops in a floating dock in the port of Zeebrugge. In all of these cases, the Belgian Council of Prizes upheld the Belgian capture and declared the vessels to be the property of the Belgian State.53 But as the seizures were effected in Belgian waters the cases are of little value in distinguishing land and naval captures.

THE DANUBE ARBITRATION

Among the numerous claims which came before the American arbitrator named under Article 300 of the Treaty of St. Germain, of September 10, 1919, was a claim by Roumania that seizures of enemy-owned boats on the Danube, effected by Roumanian naval officers, were to be "regulated by the international law pertaining to naval warfare, and therefore ought to be upheld.”' 54 In rejecting this claim, Mr. Hines stressed the facts that the vessels in question were devoted to inland and not to maritime navigation; that they were registered in or identified with river ports; that they had not been taken on the high seas; and that at the time of their seizure they were engaged in inland navigation between Danube ports in Roumania and Danube ports farther up the river. “The sole reason which can be suggested in order to justify the confiscation of such private property, contrary to the principles of land warfare, is the claim that the vessels were seized by officers who, although located in the ports of the river, were designated as naval officers. The arbitrator is of opinion that such a distinction would be devoid of substance under all the circumstances surrounding these particular seizures."

In view of the large competence conferred upon him by Article 300 of the Treaty of St. Germain, Mr. Hines found that the Roumanian prize courts had been ousted of any jurisdiction they might otherwise have had to pass upon the validity of seizures of Danube river vessels. But he stated that "certainly it is the exception rather than the rule that river vessels concerned in inland navigation are made the subject of proceedings in prize courts,"55 and so he held that Article 378 of the Treaty of St. Germain, relative to prize court proceedings, did not apply to Danube river vessels.

53 See also The Roelfina, 16 American Journal of International Law 136, as to which the facts as to the Belgian capture are not so clear. Other elgian decisions are reported in the British Year Book of International Law, 1921-22, p. 183 ff.

Hines, Determination in the Matter of Questions Arising as to Danube Shipping, p. 21. 55 “It may be mentioned that the Roumanian decree relative to the organization of the jurisdiction of maritime prize declares in Ch. I, Art. I, that the Roumanian state has the right to capture vessels serving as means of transport by waterways inscribed in official registers of the merchant marine. Likewise the Roumanian code of prize maritime jurisdiction declares in Ch. I, Art. I, that every navigable object of whatever nature inscribed in the registers of the merchant marine of the different states is regarded as a vessel of commerce. This indicates that maritime jurisdiction relates at least primarily to marine vessels." Hines, Determination in the Matter of Questions Arising as to Danube Shipping, p. 6.

REGULATION AT THE HAGUE CONFERENCES

The Hague Conventions concerning land warfare deal especially with the seizure of boats, in Article 53 of the regulations annexed to each of the Conventions.56 The substance of this provision had previously been included in the unratified projet of an international declaration concerning laws of war, adopted at the Brussels Conference in 1874.57 Article 6 of that projet permitted the seizure by occupying armies of boats "en dehors des cas régis par les lois maritimes,” and provided for their return at the end of the war.

At the Brussels Conference the insertion of this expression was the consequence of a request by the Spanish representative to insert after the word “vessel” the expression "appartenant à la navigation des lacs du continent, des fleuves et rivières qui ne sont pas navigables, en communication avec la mer”; 58 and he stated that it was his purpose to indicate clearly that no attempt was being made to deal with maritime law. The words finally inserted were suggested as a substitute by the Belgian representative who thought they would satisfy the desire of the Spanish representative. In the Hague Conference of 1899, the text of the Brussels regulation was changed, but these words of the Brussels Declaration were kept; and in the Conference of 1907 they were not materially modified.

One of the commissions of the Hague Conference of 1907 which had been considering amendments to the regulations annexed to the second Convention of 1899, dealt with the significance of these words. The rapporteur for the commission, Major-General Baron Giesl von Gieslingen, gave the following account of the commission's deliberations:

Le Délégué militaire du Japon a rappelé à cette occasion les réserves qui avaient été formulés par sa Délégation au sein de la Sous-Commission relativement à l'addition des mots sur mer,' une pareille disposition lui paraissant relever plutôt du programme de la Quatrieme Commission. Cependant, le Comité a cru devoir les maintenir, en considérant que le droit de capture maritime peut s'appliquer dans une guerre

continentale au cas de navires saisis dans un port par un corps de troupes, notamment en ce qui concerne les navires destinés à la navigation fluviale.59

This seems to be a statement that maritime law would apply to boats seized in a port by land forces, particularly if the boats are destined for river navigation; but no reason is given, and it is very difficult to see why maritime law should apply "notamment" to boats destined for river navigation unless they are ocean-going boats. Commentators on the Hague Convention

56 The second Convention of 1899 and the fourth Convention of 1907. Higgins, Hague Peace Conferences, p. 206.

67 Actes de la Conference de Bruxelles, p. 363. 58 Actes de la Conference de Bruxelles, p. 154. 59 Actes et Documents, 1907, III, p. 27.

seem to have given very little attention to this expression, but it was referred to by counsel in The Thalia as follows:

Admitting that capture may be made on rivers and lakes, which are not included in territorial waters, then there must be steamers and other kinds of vessels beside those afloat on rivers and lakes which are not governed by the rules of maritime law; because such vessels are recognized in the second paragraph of Article 53 of the Hague Treaty.61

SUGGESTIONS AS TO LEGISLATION

At the 1913 meeting of the Institute of International Law, an attempt was made to include in the manual of laws on maritime war a paragraph which would have had the effect of freeing craft on inland rivers from naval capture.62 Although the Institute refused to go. so far, it did agree to add river boats navigating rivers, canals and lakes to the class of boats which should be exempt from capture because engaged in small local navigation.63 And it is interesting to note that the Institute's règlement for international rivers, adopted at Heidelberg in 1887, provided for applying to floating property on international rivers the same treatment as that accorded to enemy property in war on land.64

At the 1920 meeting of the International Law Association, the British Maritime Law Committee submitted a report on the laws of naval war which

60 See Lawrence, International Law (5 ed.) p. 441; Spaight, War Rights on Land (1911)

p. 416.

61 (1905) Takahashi, Russo-Japanese War, p. 606. Article 53 of the Regulations was also construed by the Italian court in an opinion reported in Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Maritimes, p. 203: “L'article 53 de ce règlement déclare en effet que les forces militaires qui occupent un territoire peuvent s'approprier les moyens de transport et en général toute propriété mobiliere de l'État de nature a serviraux operations de guerre." And see ibid., p. 500. In The Anichab (1919) Probate 329, Article 53 was applied, at least by way of analogy, but Lord Sterndale refused to admit that the Prize Court had jurisdiction to fix the indemnity for which the article provides. Mr. Walker D. Hines, in the Determination in the Matter of Questions Arising as to Danube Shipping, pp. 9, 10, expressed the opinion that Article 53 applied only “to military authority over hostile territory that is actually placed under the authority of the belligerent army'; and he held that Article 53 “does not contemplate war material in actual hostile use at the time of seizure."

62 Annuaire de l'Institut de Droit International, 1913, p. 191.

63 Article 47 of the Oxford Manual of the Laws of Maritime War provides: "Les bateaux exclusivement affectés a la pêche côtière, ou à des services de petite navigation locale, y compris ceux exclusivement affectés au pilotage ou au service des phares, comme aussi les navires destinés à naviguer principalement sur les fleuves, canaux et lacs, sont exempts de saisie, ainsi que leurs engins, agres, apparaux et chargements.” Annuaire de l'Institut de Droit International, 1913, p. 654.

64 "Article 40.- En cas de guerre entre les États rivereins, la propriété flottante sur un fleuve international, sans distinction entre la propriete neutre et la propriété ennemie, sera traitée suivant l'analogie de la protection de la propriété ennemie en cas de guerre sur terre.” Annuaire de l'Institut de Droit International, 1888, p. 187.

was drafted by a very able sub-committee.65 This report does not appear to have been adopted by the Association,66 but it may be taken as some evidence of current opinion. The code of naval warfare embodied in the report deals with "the places where hostilities may be carried on” and provides: “The special rules relating to maritime war are only applicable to the open sea and the territorial waters belonging to or occupied by the belligerents, to the exclusion of those waters which, in respect of navigation, cannot be considered as maritime."

These authorities seem inadequate for drawing a confident conclusion as to the general applicability of the law of maritime warfare or the law of land warfare to captures on inland rivers. Taking the language of the ear lier texts, one might conclude that the law of maritime capture is generally applicable; but this language is almost invariably used with reference to cases of seizures by naval forces or to cases in which the jurisdiction of prize courts is being defined.

FACTORS TO BE CONSIDERED

Three factors must be considered in determining whether a particular capture is to be governed by the law of land, or by that of maritime, warfare: (1) the locality of the seizure; (2) the nature of the property seized; (3) the character of the force making the seizure.

A seizure of an enemy vessel made within a belligerent's own territorial waters at the outbreak of hostilities would seem to be subject to the municipal law and its provisions for dealing with enemy property. Perhaps the liberal protection, which had so generally been accorded to enemy property prior to 1914, cannot now, in the light of recent experience, be said to be required by international law.67 The municipal law is usually made to conform with general international usage, as in the sixth Hague Convention dealing with the treatment of ships in port at the commencement of hostilities. Enemy ships seized within a belligerent's own territory need be submitted to the jurisdiction of prize courts only for the satisfaction of neutrals. Within a belligerent's own territory, then, the problem is not so likely to arise as to the limits of land and sea warfare,68 although the problems of

65 Report of International Law Association, Twenty-Ninth Congress at Portsmouth, 1920, p. 169.

68 Ibid.,

p. 224. 67 Cf. In re Ferdinand, Ex-Tsar of Bulgaria (1921) 1 Ch. 107.

68 One may query Professor Oppenheim's suggestion that as the seizure of means of transport is, according to Article 53 of the Hague Regulations, permissible in occupied enemy country, provided they are restored and indemnities paid after the conclusion of peace, "seizure must likewise-under the same conditions—be permissible in case these articles are on the territory of a belligerent.” Oppenheim, International Law (2d ed.) II, p. 140. If municipal law governs as to seizures on a belligerent's own territory, Article 53 may be in no way applicable.

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