페이지 이미지
PDF
ePub

strictness therefore (apart entirely from the question whether the enemies of this country are acting under or in accordance with the convention), it is not clear that the convention is binding or applicable.

It is not my function to do anything more than to declare the law. But I trust to be forgiven for an expression of opinion that it would accord with the traditions of this country if such steps were taken as may be necessary to make operative a series of conventions solemnly agreed upon by the plenipotentiaries of 45 states or Powers after most careful deliberation, with the most beneficent international objects. Of the belligerents Montenegro has no navy, and, so far as I know, no mercantile marine; it has a coastline, but only of about 30 miles; and Serbia is a purely inland state, having no seaboard at all. It would scarcely seem desirable that the non-ratification by these Powers should prevent the application of the maritime conventions; and it may be that the counsellors who have the responsibility of advising the Crown may deem it fit to advise that by proclamation or otherwise this country should declare that it will give effect to the conventions, whether by the literal terms thereof they are strictly binding or not.

I will now consider whether the owners of an enemy vessel have a right, or should be given the right, to appear to put forward a claim under the conventions, assuming, as was done during the argument, that they are operative. Dealing with the Hague Conventions as a whole, the court is faced with the problem of deciding whether a uniform rule as to the right of an enemy owner to appear ought to prevail in all cases of claimants who may be entitled to protection or relief, whether partial or otherwise. Mr. Holland argued that this is a matter not of international law, but of the practice of this court. That view is correct. I think that this court has the inherent power of regulating and prescribing its own practice, unless fettered by enactment. Lord Stowell from time to time made rules of practice, and his power to do so was not questioned. Moreover, by Order XLV of the Prize Court Rules, 1914, it is laid down that in all cases not provided for by those rules the practice of the late High Court of Admiralty of England in prize proceedings should be followed, or such other practice as the President may direct. The rules do not provide for the case now arising. I therefore assume that as President of this court I can give directions as to the practice in such cases as that with which the court is now dealing.

The practice should conform to sound ideas of what is fair and just. A merchant who is a citizen of an enemy country would not unnaturally expect that when the state to which he belongs, and other states with which it may unhappily be at war, have bound themselves by formal and solemn conventions dealing with a state of war like those formulated at The Hague in 1907, he should have the benefit of the provisions of such international compacts. He might equally naturally expect that he would be heard in cases where his property or interests were affected as to the effect and results of such compacts upon his individual position. It is to be remembered also that in the international commerce of our day the ramifications of the shipping business are manifold; and others concerned, like underwriters or insurers, would feel a greater sense of fairness and security if, through an owner (though he be an enemy), the case for a seized or captured vessel were permitted to be independently placed before the court.

From the considerations to which I have adverted, I deem it fitting, pursuant to powers which I think the court possesses, to direct that the practice of the court shall be that whenever an alien enemy conceives that he is entitled to any protection, privilege, or relief under any of The Hague Conventions of 1907, he shall be entitled to appear as a claimant, and to argue his claim before this court. The grounds of his claim would be stated in the affidavit before appearance which is required to be filed by Order III, Rule 5, of the Prize Court Rules, 1914.

It was argued for the owner in the present case that the vessel 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. 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 Article 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 to load or unload, embark or disembark. It does not mean the fiscal port. The vessel was not seized in any such "port." She was not in a port from which, if days of grace had been arranged, she could be said to " depart" (sortir). ^~~v

The Sixth Hague Convention does not refer tc^vterritorial waters." A vessel might be in territorial waters for scores of ^ajles, 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 port; e. g., in Convention XII, Articles 3 and 4. Then it was contended that the vessel could not be condemned because she was not captured on "the high seas." The words "encountered on the high seas," in Article 3, are not an accurate rendering of the authoritative French, "rencontres en mer." Where the conventions intend to describe "upon the high seas," the appropriate phrase "en pleine mer" is used. (See Convention VII, recital.) Another phrase, "en haute mer," is used in the Declaration of London, Article 37, to signify the same thing.

[graphic]

In my view the claimant in his affidavit was accurate when he said that his vessel was "taken at sea." The words of Article 3, "rencontres en mer" are exactly applicable to this case. And I have no hesitation in finding that she was captured at sea, and not seized in port. I therefore decree that the vessel be condemned as lawful prize. {The Times Law Reports, Vol. 31, p. 46.)

BOOK REVIEWS

Italy's Foreign and Colonial Policy. By Senator Tommaso Tittoni. Translated by Baron Bernardo Quaranta di San Severino. New York:E. P. Dutton & Co. 1915. pp.334.

This volume is not a treatise upon the foreign and colonial policy of Italy, but a collection of speeches delivered before the Italian Parliament during the years 1903-1909 when Signor Tittoni was Minister of Foreign Affairs, on matters dealing with foreign politics, emigration and colonial affairs. It is an excellent translation of Senator Tittoni's'book entitled Sei Anni Politico. Estera, prepared for Anglo-Saxon readers with the "hope that, through the perusal of these pages coming from one of our leading political men, a statesman of the greatest integrity, wisdom and ability, they may become acquainted with the true spirit which animates Italian foreign policy." The work is dedicated to the noted British statesman, Arthur James Balfour, and contains an illuminating preface by Senator Maggiorino Ferraris, editor of La Nuova Antologia and Minister of Posts and Telegraphs from 1893 to 1896, on Italian foreign policy.

The book is divided into three parts: Italy's Foreign Policy; Emigration; and Italy's Colonial Policy. At this time when the attention of American readers has been particularly drawn to foreign politics, they will find the first and the third portions of the volume most interesting and suggestive. "The principal quality of any foreign policy," declares Signor Tittoni, "must be its continuity." And in his speeches the Foreign Minister shows how Italy has preserved continuity in its own foreign policy by adhering strictly and persistently to a few vital principles. The foundations of her policy rest on the preservation of peace, the maintenance of the Triple Alliance together with a determination at the same time to "uphold and consolidate our sincere friendship with England and France," and the advancement of the legitimate interests of the Italian people with as little friction and as little conflict with the rights of other states as possible. It is well-known how faithful Italy has been to the first two of these principles. During the past twenty-five years, she has played a prominent part in every movement to preserve the peace of Europe; and, in spite of the doubts of her sincerity and diplomatic ability raised by some interested statesmen— both within and without her domains,—she has succeeded in a remarkable way in remaining true to all her obligations as a member of the Triple Alliance, while cultivating successfully the friendship of, and intercourse with, the "Entente" states. Her success, and her ability to silence all critics, has arisen from the recognition of her leaders that the success of any foreign policy depends upon "the confidence it inspires" and the "forces at its command," and that no program of dexterity or makeshifts would stand the pressure of modern demands or inspire the respect of other nations. Senator Tittoni was determined that "no reservation, no hidden meaning, no ambiguity" should characterize Italian diplomacy; and one can truthfully say that this straightforward dealing has been a leading factor in Italian foreign relations, not only during his term of office as Foreign Minister, but also throughout the last quarter of a century. They have tried earnestly and consistently to establish reciprocal relations between Italy and all other powers; and, if all the European states had been as conscientious in their efforts along this line, there might have been no European war today.

One of the most important features of the Triple Alliance was the bond of unity it created between Austria and Italy. The people of these two countries have no great love for one another or natural bonds of affinity; but the two governments—^so long enemies—were quick to recognize the value of a mutual friendship. Italy, feeling that the alliance with Austria was indispensable to the preservation of the balance of influence in the Mediterranean, the protection of the trade of the Adriatic, and the maintenance of peace in Southeastern Europe, cultivated earnestly and skillfully the friendship of the Austro-Hungarian Kingdom. "We believe," declared Tittoni, "that the alliance with Austria should be maintained, and that our friendship with this nation should remain whole-hearted and sincere"; and he succeeded in securing with Austria "a clear and precise mutual understanding, free from all restrictions, reservations and hidden meanings." If the Hapsburg Monarchy had tried as hard and as honestly to cultivate the friendship of the Italian Kingdom, conditions would have been very different at the opening of the war in July, 1914, and it might have proved possible to have secured an international hearing on the Servian question in place of an appeal to arms.

« 이전계속 »