THE CARTHAGE CASE

between

FRANCE and ITALY

Decided May 6, 1913
Syllabus

During the Turko-Italian war in Africa in 1912, the Italians established a strict watch against the possibility of military supplies or reinforcements of any kind reaching the Turks in Tripoli by way of Tunis. As the result, on January 16, 1912, the Carthage, a steamer belonging to the Compagnie Générale Transatlantique, was stopped by an Italian war vessel while on its way from Marseilles to Tunis, on account of having on board an aeroplane and parts of another, destined to a private consignee in Tunis, which the Italians claimed was contraband of war. It being impossible to transfer the aeroplane from one ship to another, the Carthage was conveyed to Cagliari, where it was detained until January 20, 1912. The release of the vessel was demanded by the French Ambassador at Rome. The aeroplane and parts were landed by order of the company and the Carthage was allowed to resume her voyage.

Upon assurance to the Italian Government that the aeroplane was intended purely for exhibition purposes and that there was no intention on the part of the owner to offer his services to the Ottoman Government, the aeroplane was released on January 21, 1912. The French Government demanded in addition reparation for the insult to the French flag and for the violation of international law and conventions between the two Governments and damages for the injury to the private parties interested in the vessel and its voyage. The Italian Government made a counter-claim against France for the amount of the expenses caused by the seizure of the Carthage.

The controversy was referred for settlement to a tribunal selected from the members of the Permanent Court of Arbitration at The Hague, under a compromis dated March 6, 1912. The tribunal was composed of K. Hj. L. Hammarskjöld of Denmark; Louis Renault of France; Guido Fusinato of Italy; J. Kriege of Germany, and Baron Michel de Taube of Russia. Its sessions began March 31, 1913, and ended May 6, 1913, the decision being rendered on the latter date. The tribunal held that, while belligerents have as a general rule the right of visit and search, to determine if contraband is carried by neutral vessels, the legality of acts committed after the search depends. upon the presence of contraband or sufficient legal reasons to believe 1Post, p. 336.

that it exists; that the information in the possession of the Italian authorities as to the hostile destination of the aeroplane, which was an essential element to establish its contraband nature, was not legally sufficient and that, therefore, the capture of the vessel and its convoy to Cagliari and detention there were illegal. The French Government was awarded the sum of 160,000 francs in satisfaction for the damages suffered by the private parties interested in the vessel and its voyage. The national claims of the respective Governments were, however, disallowed.

AWARD OF THE TRIBUNAL

Award of the arbitral tribunal in the case of the French mail steamer "Carthage."-The Hague, May 6, 1913.1

3

Considering that, by an agreement dated January 26, 1912,2 and by a compromis dated the following 6th of March, the Government of the French Republic and the Royal Italian Government have agreed to submit to an arbitral tribunal composed of five members the decision of the following questions:

1. Were the Italian naval authorities within their rights in proceeding, as they did, to the capture and temporary detention of the French mail steamer Carthage?

2. What should be the pecuniary or other consequences, following the decision of the preceding question?

Considering that, in accordance with this compromis, the two Governments have chosen, by common consent, the following members of the Permanent Court of Arbitration to constitute the arbitral tribunal:

His Excellency Guido Fusinato, Doctor of Law, Minister of State, former Minister of Public Instruction, honorary professor of international law in the University of Turin, Deputy, Councilor of State;

Mr. Knut Hjalmar Leonard Hammarskjöld, Doctor of Law, formerly Minister of Justice, formerly Minister of Public Worship and Instruction, formerly Envoy Extraordinary and Minister Plenipotentiary at Copenhagen, formerly President of the Court of Ap

1American Journal of International Law, vol. 7, p. 623. For the original French text, see Appendix, p. 556.

2Post, p. 337.

Post, p. 336.

peals of Jönköping, formerly professor in the Faculty of Law of Upsala, Governor of the Province of Upsala;

Mr. Kriege, Doctor of Law, at present Confidential Counselor of Legation and Director in the Department of Foreign Affairs, Plenipotentiary in the German Federal Council;

Mr. Louis Renault, Minister Plenipotentiary, member of the Institute, professor in the Faculty of Law of the University of Paris and of the Ecole Libre des Sciences Politiques, Jurisconsult in the Ministry of Foreign Affairs;

His Excellency Baron Michel de Taube, Doctor of Law, Assistant Minister of Public Instruction of Russia, Councilor of State; That the two Governments have, at the same time designated Mr. Hammarskjöld to perform the duties of president.

Considering that, in accordance with the compromis of March 6, 1912, the cases and counter-cases have been duly exchanged by the parties and communicated to the arbitrators;

Considering that the tribunal, constituted as above, met at The Hague on March 31, 1913;

That the two Governments have respectively appointed as agents and counsel,

The Government of the French Republic:

Mr. Henri Fromageot, advocate in the Court of Appeals of Paris, assistant jurisconsult in the Ministry of Foreign Affairs, counsel in international law for the Navy Department, agent;

Mr. André Hesse, advocate in the Court of Appeals of Paris, member of the Chamber of Deputies, counsel;

The Royal Italian Government:

Mr. Arturo Ricci-Busatti, Envoy Extraordinary and Minister Plenipotentiary, Chief of the Bureau of Disputed Claims and Legislation of the Royal Ministry of Foreign Affairs, agent;

Mr. Dionisio Anzilotti, professor of international law in the University of Rome, counsel.

Considering that the agents of the parties have presented the following demands to the tribunal, to-wit,

The agent of the Government of the French Republic:

May it please the tribunal

As to the first question propounded by the compromis,

To say that the Italian naval authorities were not within their rights in proceeding as they did to the capture and temporary detention of the French mail steamer Carthage;

In consequence and as to the second question,

To say that the Royal Italian Government shall be obliged to pay to the Government of the French Republic as damages:

1. The sum of one franc for the offense against the French flag; 2. The sum of one hundred thousand francs as reparation for the moral and political injury resulting from the failure to observe international common law and conventions binding upon both Italy and France;

3. The sum of five hundred and seventy-six thousand, seven hundred and thirty-eight francs, twenty-three centimes, the total amount of the losses and damages claimed by private parties interested in the steamer and its voyage;

To say that the above-mentioned sum of one hundred thousand francs shall be paid to the Government of the Republic for the benefit of such work or institution of international interest as it may please the tribunal to indicate;

In the second place, and in case the tribunal does not consider itself at present sufficiently informed as to the grounds for the individual claims,

To say that one or more of its members to whom it may be pleased to entrust this duty, shall proceed, in the presence of the agents and counsel of the two Governments, in the chamber where its deliberations take place, to the examination of each of the said individual claims;

In all cases, and by the application of Article 9 of the compromis, To say that, after the expiration of three months from the day of the award, the sums to be paid by the Royal Italian Government and not yet paid shall bear interest at the rate of four per cent per

annum.

And the agent of the Royal Italian Government :
May it please the tribunal

As to the first question propounded by the compromis,

To say and decide that the Italian naval authorities were entirely

within their rights in proceeding, as they did, to the capture and temporary detention of the French mail steamer Carthage;

In consequence and as to the second question,

To say and decide that the French Government shall be obliged to pay to the Italian Government the sum of two thousand and seventy-two francs, twenty-five centimes, the amount of expense caused by the seizure of the Carthage;

To say, that, upon the expiration of three months from the day of the award, the sum to be paid by the Government of the French Republic will, if it has not yet been paid, bear interest at the rate of four per cent per annum.

Considering that, after the tribunal had heard the oral statements of the agents of the parties and the explanations which they furnished upon its request, the arguments were duly declared closed.

IN THE MATTER OF FACT

Considering that the French mail steamer Carthage, of the Compagnie Générale Transatlantique, in the course of a regular trip between Marseilles and Tunis, was stopped on January 16, 1912, at 6:30 a.m., in the open sea, seventeen miles from the coast of Sardinia, by the destroyer Agordat of the Royal Italian Navy;

That the commander of the Agordat, having ascertained that there was on board the Carthage an aeroplane belonging to one Duval, a French aviator, and consigned to his address at Tunis, declared to the captain of the Carthage that the aeroplane in question was considered by the Italian Government contraband of war;

That, as it was impossible to transfer the aeroplane from one vessel to the other, the captain of the Carthage received the order to follow the Agordat to Cagliari, where he was detained until January 20;

IN THE MATTER OF LAW

Considering that, according to the principles universally acknowledged, a belligerent war-ship has, as a general rule and except under special circumstances, the right to stop a neutral commercial vessel in the open sea and proceed to search it to see whether it is observing the rules of neutrality, especially as to contraband;