CHAPTER VII THE INTERNATIONAL PRIZE COURT
I PROPOSALS FOR INTERNATIONAL PRIZE COURTS
Geffcken in Holtzendorff, IV. pp. 785-788—Boeck, Nos. 743-764—Dupuis, No. 289, and Guerre, Nos. 224-231—Higgins, pp. 432-435—Lémonon, pp. 280-293—Nippold, I. § 15—Trendelenburg, Lücken im Völkerrecht (1870), pp. 49-53—Gessner, Kriegführende und neutrale Mächte (1877), pp. 52-58—Bulmerincq and Gessner in R.I. XI. (1879), pp. 173-191, and XIII. (1881), pp. 260-267.
Early Projects.
§ 438. Numerous inconveniences must naturally result from a condition of International Law which has hitherto prevailed and according to which the Courts of the belligerent whose forces had captured neutral vessels exercised jurisdiction without any control by neutrals. Although, as shown above in § [437], neutrals frequently interfered after a trial and succeeded in obtaining recognition for their claims in face of the verdicts of Prize Courts, great dissatisfaction has long been felt at the condition of matters hitherto obtaining, and proposals have been made for so-called mixed Prize Courts.
The first proposal of this kind was made in 1759 by Hübner,[932] who suggested a Prize Court composed of judges nominated by the belligerent and of consuls or councillors nominated by the home State of the captured neutral merchantmen.
[932] De la saisie des bâtiments neutres (1759), vol. II. p. 21.
A somewhat similar proposal was made by Tetens[933] in 1805.
[933] Considérations sur les droits réciproques des puissances belligérantes et des puissances neutres sur mer, avec les principes du droit de guerre en général (1805), p. 163.
Other proposals followed until the Institute of International Law took up the matter in 1875, appointing, on the suggestion of Westlake, at its meeting at the Hague, a Commission for the purpose of drafting a Projet d'organisation d'un tribunal international des prises maritimes. In the course of time there were mainly two proposals before the Institute, Westlake's and Bulmerincq's.
Westlake proposed[934] that Courts of Appeal should be instituted in each case of war, and each Court should consist of three judges—one to be nominated by the belligerent concerned, another by the home State of the neutral prizes concerned, and the third by a neutral Power not interested in the case. According to Westlake's proposal there would therefore have to be instituted in every war as many Courts of Appeal as neutrals concerned.
[934] See Annuaire, II. (1878), p. 114.
Bulmerincq proposed[935] that two Courts should be instituted in each war for all prize cases, the one to act as Prize Court of the First Instance, the other to act as Prize Court of Appeal; each Court to consist of three judges, one judge to be appointed by each belligerent, the third judge to be appointed in common by all neutral maritime Powers.
[935] See R.I. XI. (1879), pp. 191-194.
Finally, the Institute agreed, at its meeting at Heidelberg in 1887, upon the following proposal, which is embodied in §§ 100-109 of the Règlement international des prises maritimes:[936]—At the beginning of a war each belligerent institutes a Court of Appeal consisting of five judges, the president and one of the other judges to be appointed by the belligerent, the three remaining to be nominated by three neutral Powers, and this Court to be competent for all prize cases.
[936] Annuaire, IX. (1887), p. 239.
No further step was taken in the matter during the nineteenth century. But, during the South African War, the conviction became general that the exclusive jurisdiction of belligerents over captured neutral vessels is incompatible with the modern condition of the oversea commerce of neutrals. At the Second Peace Conference of 1907, therefore, Germany, as well as Great Britain, brought forward a project for real International Prize Courts.
German Project of 1907.
§ 439. The German project[937] was embodied in a draft of thirty-one articles dealing in three chapters with "Competence in Prize Cases," "Organisation of the International Prize Court," and "Procedure before the International Prize Court," and made the following proposals:—National Prize Courts should only be competent in the first instance, every appeal to go to the International Prize Court, and the latter to be competent not only in case of capture of neutral vessels, but in every case of capture of merchantmen. At the beginning of every war an International Prize Court should be established, but, in case there were more than two parties to a war, as many International Prize Courts should be established as there were couples of States fighting against each other. Each Court every time it sat should consist of five judges, three of whom should be members of the Permanent Court of Arbitration at the Hague, and two should be admirals. The admirals should belong to the navies of the belligerents, but the three members of the Permanent Court of Arbitration should be chosen by neutral Powers, each belligerent authorising one neutral Power to select one member, and these two neutrals to appoint a third neutral Power which would select the third member. The Court should sit at the Hague, have its first meeting when the first appeal case arose, and be dissolved after the conclusion of peace. The International Bureau of the Permanent Court of Arbitration should serve as the Registry of every International Prize Court. Each belligerent and the owners of the captured vessels or cargoes should have the right to bring an appeal before the International Prize Court.
[937] Deuxième Conférence, Actes, II. p. 1071.
British Project of 1907.
§ 440. The British project[938] was embodied in a draft of sixteen articles, and made the following proposals:—The International Prize Court should be competent in such cases only as directly concerned a neutral Power or its subjects, an appeal to be brought before the International Court only after the case had been decided by the highest National Prize Court of the belligerent concerned. Neutral Powers only, and not their subjects, should have the right to enter an appeal, and each neutral Power should represent its subjects concerned in a prize case. In contradistinction to the German project, the British draft proposed the establishment once for all of a Permanent International Prize Court, each Power whose mercantile marine at the date of the signature of the proposed convention exceeded a total of 800,000 tons, should, within three months from the date of ratification, nominate a prominent jurist as a member of the Court, and another as his deputy. The President of the Court should be nominated by the signatory Powers in their alphabetical order, should remain in office one year only, and should have a casting vote. If a legal question were to be decided which had already been provided for in a convention between the parties in dispute, the Court should base its decision on such convention. In the absence of such a convention, and if all civilised nations were agreed on a point of legal interest, the Court should base its decision thereon, otherwise the Court should decide according to the principles of International Law.
[938] Deuxième Conférence de la Paix, Actes, II. p. 1076.
Convention XII. of the Second Peace Conference.
§ 441. The Second Peace Conference, after having studied and discussed the German and the British projects, produced the "Convention (XII.) respecting the establishment of an International Prize Court" which, on the whole, follows more closely the lines of the British project, but includes several features of the German, and others which originate neither with the British nor the German project. It comprises fifty-seven articles and is divided into four parts headed respectively "General Provisions" (articles 1-9), "Constitution of the International Prize Court" (articles 10-27), "Procedure in the International Prize Court" (articles 28-50), and "Final Provisions" (articles 51-57). The Convention was signed by all the Powers represented at the Conference, except Brazil, China, Domingo, Greece, Luxemburg, Montenegro, Nicaragua, Roumania, Russia, Servia, and Venezuela. Ten States—namely, Chili, Cuba, Ecuador, Guatemala, Haiti, Persia, Salvador, Siam, Turkey, and Uruguay—entered a reservation against article 15 of the Convention because they did not agree with the principle of the composition of the Court embodied in this article.
As eleven States did not sign the Convention and ten of the signatory States refused to accept the composition of the Court as regulated by article 15, it cannot be said that the Convention is based on universal agreement. Yet the fact that, with the exception of Russia, all the Great Powers and a great number of the minor Powers have signed it without a reservation, offers sufficient guarantee for the success of the Court when once established. Nothing prevents a future Peace Conference from making such alterations in the Convention as would meet the wishes of the Powers which at present refuse to sign the Convention or to accept article 15.
It should be mentioned that, according to article 55, the Convention remains in force for twelve years from the date it comes into force, and is to be tacitly renewed for six years, unless denounced one year at least before the expiry of the period for which it is in force. And article 57 stipulates that two years before the expiration of the period for which it is in force, any contracting Power may demand a modification of the provisions concerning its own participation in the composition of the Court. The demand must be addressed to the Administrative Council which, on its part, must examine it and submit proposals as to the measures to be adopted to all the contracting Powers. These Powers must, with the least possible delay, inform the Administrative Council of their decision. The result is at once, or at any rate one year and thirty days before the expiry of the period of two years, to be communicated to the Power which made the demand for a modification of the provisions concerning its participation in the composition of the Court.
II CONSTITUTION AND COMPETENCE OF THE INTERNATIONAL PRIZE COURT
Westlake, II. pp. 288-297—Lawrence, § 192—Ullmann, § 196—Bonfils, Nos. 14401-14403—Despagnet, Nos. 683-683 bis—Fiore, Code, Nos. 1897-1901—Dupuis, Guerre, Nos. 232-276—Bernsten, § 14—Lémonon, pp. 293-335—Higgins, pp. 435-444—Barclay, Problems, pp. 105-108—Scott, Conferences, pp. 466-511—Nippold, I. §§ 16-19—Fried, Die zweite Haager Konferenz (1908), pp. 121-130—Lawrence, International Problems (1908), pp. 132-159—Hirschmann, Das internationale Prisenrecht (1912), §§ 39-41—Gregory, White, and Scott in A.J. II. (1908), pp. 458-475, and 490-506, and V. (1911), pp. 302-324—Donker Curtius in R.I. 2nd Ser. XI. (1909), pp. 5-36.
Personnel.
§ 442. The International Prize Court consists of judges and deputy judges, a judge who is absent or prevented from sitting being replaced by a deputy (article 14). The judges and the deputies are appointed by the contracting Powers from among jurists of known proficiency in maritime International Law, and of the highest moral reputation, each Power appointing one judge and one deputy for a period of six years (articles 10 and 11). The judges are all of equal rank and have precedence according to the date of the notification of their appointment to the Administrative Council of the Permanent Court of Arbitration at the Hague, but, if they sit by rota in conformity with article 15, paragraph 2, they have precedence according to the date on which they entered upon their duties, and, when the date is the same, the senior takes precedence; deputies rank after the judges (article 12). The judges—and the deputies when taking the places of judges—must, when outside their own country, be granted diplomatic privileges and immunities in the performance of their duties; they must, before taking their seats, take an oath, or make a solemn affirmation, before the Administrative Council, that they will discharge their duties impartially and conscientiously (article 13). No judge or deputy judge may, during the tenure of his office, appear as agent or advocate before the International Prize Court, nor act for one of the parties in any capacity whatever (article 17).
Attention should be drawn to the fact that the Court, if once established, will be permanent, and the judges, if once appointed, will always be at hand, although in time of peace they will not sit.
Deciding Tribunal.
§ 443. The judges appointed by the contracting Powers do not, as a body, decide the appeal cases brought before the Court. From among the great number of judges appointed, a deciding tribunal is formed which is composed of fifteen judges, nine of whom constitute a quorum; and a judge who is absent or prevented from sitting is replaced by a deputy (article 14). The judges appointed by Great Britain, Germany, the United States of America, Austria-Hungary, France, Italy, Japan, and Russia are always summoned to sit, but the judges appointed by the remaining contracting Powers are only in rotation summoned to sit, and their duties may successively be performed by the same person, since the same individual may be appointed as judge by several of these Powers (article 15). If a belligerent Power has, according to the rota, no judge sitting in the deciding tribunal, it has a right to demand that the judge appointed by it shall take part in the settlement of all cases arising from the war, and lots shall then be drawn to decide which of the judges entitled to sit by rota shall withdraw, but the judge of the other belligerent party does not take part in the drawing of lots (article 16). No judge may sit who has been a party, in any way whatever, to the sentence pronounced by the National Prize Court against which the appeal has been made, or who has taken part in the case as counsel or advocate for one of the parties (article 17). The summoning by rota of the judges appointed by the minor Powers takes place according to the following list:—
| Judges | Deputy Judges |
|---|---|
| First Year | |
| 1. Argentina | Paraguay |
| 2. Colombia | Bolivia |
| 3. Spain | Spain |
| 4. Greece | Roumania |
| 5. Norway | Sweden |
| 6. Holland | Belgium |
| 7. Turkey | Persia |
| Second Year | |
| 1. Argentina | Panama |
| 2. Spain | Spain |
| 3. Greece | Roumania |
| 4. Norway | Sweden |
| 5. Holland | Belgium |
| 6. Turkey | Luxemburg |
| 7. Uruguay | Costa Rica |
| Third Year | |
| 1. Brazil | Domingo |
| 2. China | Turkey |
| 3. Spain | Portugal |
| 4. Holland | Greece |
| 5. Roumania | Belgium |
| 6. Sweden | Denmark |
| 7. Venezuela | Haiti |
| Fourth Year | |
| 1. Brazil | Guatemala |
| 2. China | Turkey |
| 3. Spain | Portugal |
| 4. Peru | Honduras |
| 5. Roumania | Greece |
| 6. Sweden | Denmark |
| 7. Switzerland | Holland |
| Fifth Year | |
| 1. Belgium | Holland |
| 2. Bulgaria | Montenegro |
| 3. Chili | Nicaragua |
| 4. Denmark | Norway |
| 5. Mexico | Cuba |
| 6. Persia | China |
| 7. Portugal | Spain |
| Sixth Year | |
| 1. Belgium | Holland |
| 2. Chili | Salvador |
| 3. Denmark | Norway |
| 4. Mexico | Ecuador |
| 5. Portugal | Spain |
| 6. Servia | Bulgaria |
| 7. Siam | China |
The deciding tribunal elects its President and Vice-President by an absolute majority of the votes cast, but after two ballots the election is made by a bare majority, and, in case the votes are equal, by lot (article 19).
The judges—as well as the deputies when they sit—receive, while carrying out their duties, a salary of one hundred Netherland florins (about £8, 4s.) per diem, besides travelling expenses. The salaries and travelling expenses are to be paid by the International Bureau of the Permanent Court of Arbitration, and the judges must not receive any other remuneration either from their own Government or from any other Power (article 20).
The belligerent captor, as well as a neutral Power which is herself, or whose national is, a party, may appoint a naval officer of high rank to sit as Assessor, but he has no voice in the decision. If more than one neutral Power is concerned in a case, they must agree among themselves, if necessary by lot, on the naval officer to be appointed as Assessor (article 18).
The seat[939] of the deciding tribunal is at the Hague, and it may not, except in the case of force majeure, be transferred elsewhere without the consent of both belligerents (article 21). When the Court is not sitting, the duties conferred on it by certain articles of Convention XII. are discharged by a delegation of three judges appointed by the Court; this delegation comes to a decision by a majority of votes, and its members must, of course, reside at the Hague while they fulfil their duties (article 48).
[939] The working-order (ordre intérieur) of the International Prize Court is to be drawn up by the Court itself; see details in article 49.
The deciding tribunal determines what language it will itself use and what languages may be used before it, but in all cases the official language of the National Courts which have had cognisance of the case may be used before it (article 24).
For all notices to be served, in particular on the parties, witnesses, or experts, the deciding tribunal may apply direct to the Government of the State on whose territory the service is to be carried out. The same rule applies in the case of steps to be taken to procure evidence. The Court is equally entitled to act through the Power on whose territory it holds its sitting. Notices to be given to parties in the place where the Court sits may be served through the International Bureau (article 27).
Administrative Council and International Bureau.
§ 444. The Administrative Council of the Permanent Court of Arbitration at the Hague serves at the same time as the Administrative Council of the International Prize Court, but only representatives of the Powers who are parties to Convention XII. shall be members of it (article 22).
The International Bureau of the Permanent Court of Arbitration acts as Registry of the International Prize Court and must place its offices and staff at the disposal of the Court. This Bureau has the custody of the archives and carries out the administrative work, and its General Secretary acts as Registrar of the International Prize Court. The secretaries necessary to assist the Registrar, translators, and shorthand writers are appointed by the International Prize Court (article 23).
Agents, Counsel, Advocates, and Attorneys.
§ 445. Belligerent as well as neutral Powers concerned in a case may appoint special Agents to act as intermediaries between themselves and the International Prize Court, and they may also engage Counsel or Advocates to defend their rights and interests (article 25).
Private individuals concerned in a case are compelled to be represented before the Court by an Attorney, who must either be an Advocate qualified to plead before a Court of Appeal or a High Court of one of the contracting States, or a lawyer practising before a similar Court, or, lastly, a Professor of Law at one of the higher teaching centres of those countries (article 26).
Competence.
§ 446. The general principle underlying the rules of Convention XII. concerning the competence of the International Prize Court is that on the whole, although not exclusively, the Court is competent in cases where neutrals are directly or indirectly concerned. The International Prize Court is, as a rule, a Court of Appeal, all prize cases must, in the first instance, be decided by a National Prize Court of the captor, although the Municipal Law of the country concerned may provide that a first appeal must likewise be decided by a National Prize Court. The second appeal may never by decided by a National, but must always be decided by the International Prize Court. However, should the National Court of the First Instance or the National Court of Appeal fail to give final judgment within two years from the date of capture, the case may be carried direct to the International Prize Court (articles 2 and 6).
An appeal against the judgments of National Prize Courts may be brought before the International Court: (1) when the judgment concerns the property of a neutral Power or a neutral individual;[940] (2) when the judgment concerns enemy property and relates to (a) cargo on board a neutral vessel, (b) an enemy vessel captured in the territorial waters of a neutral Power, provided such Power has not made the capture the subject of diplomatic claim, and (c) a claim based upon the allegation that the seizure has been effected in violation, either of the provisions of a convention in force between the belligerent Powers, or of an enactment issued by the belligerent captor. In any case, the appeal may be based on the ground that the judgment was wrong either in fact or in law (article 3).
[940] Since the question of enemy or neutral character of individuals—see above, § [88]—is for some parts controversial, the International Prize Court would have to decide the controversy.
The following Powers and individuals are entitled[941] to bring an appeal before the International Prize Court:—
(1) Neutral Powers, if the judgment injuriously affects their property or the property of their subjects, or if the capture is alleged to have taken place in the territorial waters of such Powers (article 4, No. 1).
(2) Neutral individuals,[942] if the judgment injuriously affects their property. But the home State of such an individual may intervene and either forbid him to bring the appeal before the International Prize Court, or itself undertake the proceedings in his place (article 4, No. 2).
(3) Subjects of the enemy, if the judgment injuriously affects their cargoes on neutral vessels, or if it injuriously affects their property in case the seizure is alleged to have been effected in violation, either of the provisions of a convention in force between the belligerent Powers, or of an enactment issued by the belligerent captor (article 4, No. 3).
(4) Subjects of neutral Powers or of the enemy deriving rights from the rights of such individuals as are themselves qualified to bring an appeal before the International Prize Court, provided they have intervened in the proceedings of the National Court or Courts concerned. Individuals so entitled may appeal separately to the extent of their interests (article 5, first paragraph).
(5) Subjects of neutral Powers or of the enemy deriving rights from the rights of a neutral Power whose property was the subject of the judgment. Individuals so entitled may likewise appeal separately to the extent of their interest, provided they have intervened in the proceedings of the National Court or Courts concerned (article 5, second paragraph).
[941] But note article 51 of Convention XII.
[942] See above, [vol. I. § 289], p. 365.
What Law to be applied.
§ 447. As regards the law to be applied by the International Prize Court, article 7 of Convention XII. contains the following provisions and distinctions:—
(1) If a question of law to be decided be covered by a treaty in force between the belligerent captor and a Power which is itself, or whose subject is, a party to the proceedings, the Court must apply the provisions of such treaty.
(2) In absence of such provisions, the Court must apply the rules of International Law.
(3) If there be no generally recognised rules of International Law which could be applied, the Court must base its decision on the general principles of justice and equity.
(4) If—see article 3, No. 2 (c) of Convention XII.—the ground of appeal be the violation of an enactment issued by the belligerent captor, the Court must apply such enactment.
(5) The Court is empowered to disregard failure, on the part of an appellant, to comply with the procedure laid down by the Municipal Law of the belligerent captor, if it is of opinion that the consequences of such Municipal Law are unjust or inequitable.
The very wide powers of the International Prize Court with regard to the law to be applied by it, have been considerably narrowed down by the fact that the Declaration of London provides a code of Prize Law, which in time will be universally accepted, but those powers are still very wide.
III PROCEDURE IN THE INTERNATIONAL PRIZE COURT
See the literature quoted above at the commencement of § [442].
Entering of Appeal.
§ 448. As a rule there are two ways of entering an appeal against the judgment of a National Prize Court, namely, either by a written declaration made in the National Court against whose judgment the appeal is directed, or by a written or telegraphic declaration addressed to the International Bureau. In either case the appeal must be entered within one hundred and twenty days from the day the judgment was delivered or notified (article 28). But the appeal must be addressed to the International Bureau only, if a party intends to carry a case direct to the International Prize Court on account of the National Courts having failed to give final judgment within two years from the date of capture, and in such case the appeal must be entered within thirty days from the expiry of the period of two years (article 30).
If the appeal has been entered in the National Court, this Court must, without considering the question as to whether the appeal was entered in time, transmit within seven days the record of the case to the International Bureau. On the other hand, if the declaration of appeal has been sent to the International Bureau, this Bureau must immediately, if possible by telegraph, send information to the National Court concerned which must within seven days transmit the record of the case to the Bureau. And should the appeal be entered by a neutral individual, the International Bureau must immediately by telegraph inform the Government of the respective individual in order to enable such Government to come to a decision as to whether it will—see article 4, No. 2—prevent the individual from going on with the appeal, or will undertake proceedings in his stead (article 29).
If the appeal has not been entered in time, the Court must reject it without discussion of the merits of the case. But the Court may grant relief from the effect of this rule and admit the appeal, if the appellant is able to show that he was prevented by force majeure from entering the appeal in time, and that he has entered the appeal within sixty days after the circumstances which prevented him from entering it earlier ceased to operate (article 31).
If the appeal has been entered in time, a certified copy of the notice of appeal must officially be transmitted to the respondent by the Court; if the Court is not sitting, its delegation of three judges must act for it (articles 32 and 48). If in addition to the parties who are before the Court through an appeal having been entered, there are other parties concerned who are entitled to appeal, or if in the case referred to in article 29, third paragraph, the Government which has received notice of an appeal has not announced its decision, the Court may not deal with the case until either the period of one hundred and twenty days from the day the judgment of the National Prize Court has been delivered or notified, or the period of thirty days from the expiry of two years from the date of capture has expired (article 31).
Pleadings and Discussion.
§ 449. The procedure, which follows the entry of an appeal and the preliminary steps in consequence thereof, comprises two distinct phases, namely, written pleadings and oral discussion.
(1) The written pleadings consist of the deposit and exchange of cases, counter-cases, and, if necessary, of replies, the order of which, as also the periods within which they must be delivered, must be fixed by the Court or its delegation of three judges (article 48), and to which all papers and documents the parties intend to make use of must be annexed. The Court must communicate a certified copy of every document produced by one party to the other party (article 34).
(2) After the close of the pleadings the Court must fix a day for a public sitting on which the discussion is to take place (article 35). The discussion is under the direction of the President or Vice-President, or, in case both of these are absent or cannot act, of the senior judge present; but the judge appointed by a belligerent party may never preside (article 38). The discussion takes place with open doors, but a Government which is a party may demand that the discussion take place with closed doors. In any case minutes must be taken and must be signed by the President and Registrar, and these minutes alone have an authentic character (article 39). During the discussion the parties state their views of the case both as to the law and as to the facts, but the Court may at any stage suspend the speeches of counsel in order that supplementary evidence may be obtained (article 35). The Court may order the supplementary evidence to be taken, either in the manner provided for by article 27, or before itself, or before one or more members of the Court provided it can be done without compulsion or intimidation; if steps are taken by members of the Court outside the territory where it is sitting, the consent of the foreign Government must be obtained (article 36). The parties must be summoned to take part in all stages of the taking of supplementary evidence, and they must receive certified copies of the minutes (article 37). If a party does not appear in spite of having been duly summoned, or if a party fails to comply with some step within the period fixed by the Court, the case proceeds without that party and the Court makes its decision on the basis of the material at its disposal, but the Court must officially notify to the parties all decisions or orders made in their absence (article 40).
Judgment.
§ 450. After the discussion follows the judgment of the Court.
The deliberation of the Court in order to agree upon the judgment takes place in private and must remain secret. The Court must take into consideration all the documents, evidence, and oral statements. All questions are decided by a majority of the judges present; if the number of the judges is even and is equally divided, the vote of the junior judge in the order of precedence is not counted (articles 42 and 43). The judgment must be taken down in writing, state the reasons upon which it is based, give the names of the judges taking part in it and of the assessors, if any, and must be signed by the President and Registrar.
The pronouncement of the judgment of the Court takes place in public, the parties being present or having been duly summoned to attend. The judgment must be officially communicated to the parties. After this communication has been made, the Court must transmit to the National Prize Court concerned the record of the case, together with copies of the various decisions arrived at and of the minutes of the proceedings (article 45).
If the Court pronounces the capture of a vessel or cargo to be valid, they may be disposed of in accordance with the Municipal Law of the belligerent captor. If the Court pronounces the capture to be invalid, restitution of the vessel or cargo must be ordered, and the amount of damages, if any, must be fixed, especially in case the vessel or cargo has been sold or destroyed. If the National Prize Court has already declared the capture to be invalid, the International Prize Court must decide on an appeal concerning the damages due to the owner of the captured vessel or cargo (article 8).
Expenses and Costs.
§ 451. The general expenses of the International Prize Court are borne by the contracting Powers in proportion to their share in the composition of the Court as laid down in article 15 of Convention XII.; the appointment of deputy judges does not involve any contribution (article 47).
As regards costs, each party pays its own, but the party against whom the Court has given its decision, must bear the costs of the trial and, in addition, must pay one per cent. of the value of the subject matter of the case as a contribution to the general expenses of the International Prize Court. The amount of the payments must be fixed in the judgment of the Court (article 46, first and second paragraphs). If the appeal is brought by an individual, he must, after having entered the appeal, furnish the International Bureau with security to an amount fixed by the Court or—see article 48—by its delegation (article 46, third paragraph).
IV ACTION IN DAMAGES INSTEAD OF APPEAL
Scott in A.J. V. (1911), pp. 302-324.
Reason for Action in Damages instead of Appeal.
§ 452. According to the Constitution of the United States of America, and probably that of some other States, no appeal may be brought against a judgment of their Highest Courts. These States could not, therefore, ratify Convention XII. and take part in the establishment of the International Prize Court without previously having altered their Constitution. As such alteration would be a very complicated and precarious matter, the Naval Conference of London of 1908-9 included in the Final Protocol of the Conference the following vœu:—"The Delegates of the Powers represented at the Naval Conference and which have signed or have expressed their intention to sign the Hague Convention of October 18, 1907, concerning the establishment of an International Prize Court, considering the constitutional difficulties which, in certain States, stand in the way of the ratification of that Convention in its actual form, agree to call the attention of their Governments to the advantage of concluding an arrangement according to which the said States would, in depositing their ratifications, have the power to add thereto a reservation to the effect that the right of recourse to the International Prize Court in connection with decisions of their National Courts, shall take the form of a direct action for damages, provided, however, that the effect of this reservation shall not be such as to impair the rights guaranteed by the said Convention to private individuals as well as to Governments, and that the terms of the reservation shall form the subject of a subsequent understanding between the signatory Powers of the same Convention."
To carry out this recommendation, Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Chili, Denmark, Spain, France, Japan, Norway, Holland, and Sweden signed on September 19, 1910, at the Hague the "Additional Protocol to the Convention relative to the establishment of an International Prize Court" which comprises nine articles, is (article 8) considered to be an integral part of that Convention, and which will be ratified at the same time as the Convention, accession to the Convention being subordinated (article 9) to accession to the Protocol.[943]
[943] There is no doubt that, should the International Prize Court be established, all the contracting Powers of Convention XII. would accede to this additional protocol.
Procedure if Action for Damages is brought.
§ 453. According to article 1 of the Protocol, those signatory or acceding Powers of Convention XII. which are prevented by difficulties of a constitutional nature from accepting the Convention in its unaltered form, have, in ratifying the Convention or acceding to it, the right to declare that in prize cases over which their National Courts have jurisdiction, recourse to the International Prize Court may only be had in the form of an action in damages for the injury caused by the capture. In consequence thereof the procedure in the International Prize Court, as described above, §§ 448-451, takes place with the following modifications:—
(1) The action for damages may only be brought before the International Prize Court by means of a written or telegraphic declaration addressed to the International Bureau (article 5). This Bureau must directly notify, if possible by telegraph, the Government of the belligerent captor, which, without considering whether the prescribed periods of time have been observed, must within seven days of the receipt of the notification, transmit to the International Bureau the case and a certified copy of the decision, if any, rendered by the National Prize Court (article 6).
(2) The International Prize Court does not, as in Appeal Cases, pronounce upon the validity or nullity of the capture concerned, nor confirm or reverse the judgment of the National Prize Court, but simply fixes the amount of damages to be allowed, if any, to the plaintiff, if the capture is considered to be illegal (article 3).
(3) After having delivered judgment, the International Prize Court does not transmit the record of the case, the various decisions arrived at, and the minutes, to the National Prize Court, but directly to the Government of the belligerent captor (article 7).