enquiry to be made of the German Government as to whether the terms of Articles III. to VIII. of the Order in Council constituted an undertaking of the nature the German Government required, and under which they would liberate merchant vessels flying the British flag interned in German harbours.

On August 7th a communication was received from the United States Embassy that the United States Minister at Stockholm had sent the following telegram signed by the United States Ambassador at Berlin:

"Please state if England has issued Proclamation that she gives permission to enemy ships to leave British ports until midnight, August 14th. If this is so, Germany will issue corresponding orders. Reply through German Legation, Stockholm."

The United States Embassy added that they did not believe that this telegram was a reply to the message which had been transmitted to Berlin.

On enquiry at the United States Embassy shortly before midnight it was ascertained that no further communication had been received from Berlin.

The Secretary of State for Foreign Affairs has therefore no information as to the treatment accorded to British merchant ships and their cargoes in German ports, and has accordingly addressed the undermentioned notification to the Lords Commissioners of the Treasury and to the Lords Commissioners of the Admiralty.

MY LORDS,

Foreign Office, S. W.,
Midnight, August 7th, 1914.

I have the honour to state that no information has reached me that the treatment accorded to British merchant ships and their cargoes which were in German ports at the date of the outbreak of hostilities or which subsequently entered them is not less favourable than that accorded to enemy merchant ships by Articles III. to VIII. of the Order in Council issued on the 4th day of August, 1914, with reference to enemy ships being in British ports at the outbreak of hostilities or subsequently entering them. Articles III. to VIII. of the said Order in Council will therefore not come into operation.

I have the honour to be,

My Lords,

Your Lordships' most obedient humble servant,

E. GREY.

In consequence of this somewhat lame conclusion of their diplomatic efforts, the Powers were thrown back upon the obligatory provisions of the convention, and each of them exercised over the ships of the other

found in their ports at the outbreak of war the right of seizure without any period of grace. It would be arguable to deduce from the second article of the Hague convention that it was bound up with Article 1 and imposed detention in lieu of confiscation only in cases where vessels were entitled to days of grace, and have not actually been able to take advantage of the facilities. But both England and Germany have adopted a more indulgent interpretation and are subjecting to mere detention the enemy vessels and their cargo which were taken in port when war broke out and not allowed to leave. The detained vessels are liable to requisition by the State, but, if any are so taken, their owners must be compensated at the end of the war with the full value, supposing the ship is not returned, and indemnified for any damage incurred in the use, supposing it is returned. It was resolved in England to bring up all vessels seized in port for adjudication in a prize court, and orders are made simply for their detention by the marshal. The judge of the prize court (Sir Samuel Evans, who is normally President of the Admiralty Division of the High Court), at the first sitting of the court, questioned whether he was entitled to condemn them as enemy property, but the representative of the Crown only asked for detention; and, though the question may be subsequently raised in case Germany should not grant reciprocal treatment, it has been assumed that Article 2 of the convention, though not perhaps obligatory, should be applied. The order made by the prize court judge in the first case of the kind which came before him declared that the ship was properly seized as property of the enemy, and, upon the application of the Crown, it was ordered that it should be detained by the marshal till further orders. (The Chile.) The detained ships pass into the possession of the Crown but do not change ownership, and for that reason any judicial condemnation was avoided. Third parties having claims against the vessels will be able to prosecute them at the end of hostilities, either by an action in rem or by personal action against the owners.

German vessels, however, if captured at sea, have been treated as liable to the full belligerent right of confiscation, although they were seized while in ignorance of the outbreak of hostilities. Germany and Russia had made reservations at The Hague in 1907 to Article 3 of the convention, which provided that enemy vessels taken in these circum

stances should only be detained, and, as Germany at the outbreak of hostilities failed to satisfy England about the grant of reciprocal treatment, she lost the opportunity given her in the Order in Council of saving such part of her merchant marine as was on the high seas at the outbreak of war. Nearly one hundred of her ships were captured at sea straightway by English cruisers, and will be brought before the different prize courts established in different parts of the Empire.

The English prize courts will have to determine before long whether certain seizures were made in port or at sea, within the meaning of the Hague convention, where the German vessel was taken when approaching a harbor or dock or when in territorial waters. "Port" is used for fiscal purposes in England in a very wide sense, and every portion of the territorial waters around the coast falls within the limits of some port; but, for the interpretation of the Hague articles, a narrower construction has already been judicially put on the word "port" as a place where ships load and unload, which is the commercial and popular construction. The question arose in the case of The Möwe, a German sailing ship, which, on August 5th, was seized by an English gunboat while passing up the Firth of Forth from a creek at Morrisonshaven, where she had laid up for the night before war was declared, to Granton, where she was directed to call for orders. It was urged that as she was within the limits of the fiscal port of Leith during the voyage she must be deemed to be taken in port and could not be confiscated. But the President rejected this plea and condemned her. In the course of his judgment, after deciding that the enemy owner might appear and argue his case, he said:

I will now proceed to deal with the substance of the claim of the owner in the present case. He contends that his vessel cannot be condemned as prize. Was his vessel captured at sea, or seized in port? It was argued for him that he was seized in port, and therefore ought only to be detained during the war. For the Crown, on the other hand, it was contended that the vessel was captured at sea, and ought to be condemned. I have sufficiently stated the facts.

It was urged that the vessel was seized within the port of Leith, and, alternatively, that she was taken within territorial waters, and not "on the high seas," and therefore is not confiscable: (see art. 3 of the Sixth Hague Convention, to which Germany did not agree, and under which her citizens cannot benefit). In this Convention I am of opinion

that the word "port" must be construed in its usual and limited popular or commercial sense as a place where ships are in the habit of coming for the purpose of loading or unloading, embarking or disembarking. It does not mean the fiscal port. The ports of Morrisonshaven, Granton, and Bo'ness, I was informed, are within the fiscal port of Leith, but they are all separate ports in the ordinary sense. The vessel was not seized in any of such "ports" as the term is so understood, and as it seems to me to be used in the Convention. She was not in a port from which, if days of grace had been arranged, she could be said to "depart" ("Sortir"). Alternatively, it was alleged, but not proved, that she was taken in "territorial waters," and that therefore she was not captured on the high seas. But I will assume that she was within territorial waters when the capture was made. In my view that is wholly immaterial.

The Sixth Hague Convention does not refer to "territorial waters." A vessel might be in territorial waters for scores of miles, either innocently or nefariously, and pass numerous ports, without any intention to enter any of them. It is idle to say that on this account she would be free from capture. Where the Hague Conventions intend to deal with territorial waters they are expressly mentioned as distinguished from ports; for example, in Convention XII, arts. 3 and 4, and Convention XIII, arts. 2, 3, 9, 10, &c., the words "les eaux territoriales" are used in contradistinction to "les ports": (Cf. also the Declaration of London, art. 37, where territorial waters are described as "les eaux des belligerants"). "En mer," which is the phrase used in art. 3 of the Sixth Convention, is altogether inapt to indicate "territorial waters."

The German cruisers, which seized a much smaller number of British merchantmen, have usually sunk their prizes because of their inability to send them into a port. A number of steam trawlers were sunk on both sides in the North Sea. Deep sea fishing vessels of this character are not entitled to the immunity from capture granted to small coasting ships and fishing smacks, and the exigencies of the naval service frequently render it impossible to bring them in for adjudication. The enemy State can not make any objection to this destruction of its vessels, provided that the crews and passengers, if any, are taken off, because, as between the belligerents, the property passes on capture; but a neutral merchant whose innocent cargo on the destroyed vessel has been lost is entitled to full compensation. (See The Ostee, 9 Moore P. C. 150 and The Leucade, Spinks, 217). The Germans, therefore, will presumably have to compensate a number of American cargo owners whose property was laden on English vessels sunk in the southern seas. In several cases, the capture and destruction of prizes were the work

of converted merchantmen, but no question has so far been raised upon the legality of the conversion at sea by any belligerent or any neutral State. The court will have to give a judicial interpretation of the article in Hague Convention No. VI which excepts from the restriction of the full belligerent right of capture vessels which show by their build that they are intended to be converted into warships. The question is to be argued in the case of the German liner Kronprinzessin Cecilie, which was seized in Falmouth on the outbreak of war. An article of another Hague Convention limiting the right of capture in the case of fishing and coasting vessels has already been judicially construed. By Article 3 of Convention No. XI of 1907 "vessels employed exclusively in coast fisheries, or small boats employed in local trade, are exempt from capture. This exemption ceases as soon as they take any part whatever in hostilities." The President of the Prize Court had to consider whether this rule applied to the case of a German sailing cutter (The Berlin) which was captured by a British cruiser 70 miles off the Scottish coast and 500 miles from her home port. In holding that the vessel was properly captured because she could not be regarded as exclusively employed in coastal fishing, he, however, expressly upheld as a binding rule of international law the immunity of small fishing vessels which are genuinely so employed, and adopted the opinion on this point of the United States Supreme Court in the Paquete Habana (175 U. S. 677). The conclusion of his judgment may be quoted:

In this country I do not think any decided and reported case has treated the immunity of such vessels as a part or rule of the law of nations (vide the Young Jacob and Johanna, 1 C. Rob. 20, and the Liesbet van der Toll, 5 C. Rob. 283). But after the lapse of a century I am of opinion that it has become a sufficiently settled doctrine and practice of the law of nations that fishing vessels plying their industry near or about the coast (not necessarily in territorial waters) in and by which the hardy people who man them gain their livelihood, are not properly subjects of capture in war so long as they confine themselves to the peaceful work which the industry properly involves. *

* *

It is obvious that in the process of naval warfare in the present day such vessels may without difficulty and with great secrecy be used in various ways to help the enemy. If they are their immunity would disappear; and it would be open to the naval authorities under the Crown to exclude from such immunity all similar vessels if there was reason for believing that some of them were used for aiding the enemy. And