§ 434. Although belligerents have, under certain circumstances, according to International Law, the right to capture neutral vessels, and although they have the duty to bring these vessels for trial before a Prize Court, such trials are in no way an international matter. Just as Prize Courts—apart from the proposed International Prize Court—are municipal[919] institutions, so trials of captured neutral vessels by these Prize Courts are municipal matters. The neutral home States of the vessels are not represented and, directly at any rate, not concerned in the trial. Nor is, as commonly maintained, the law administered by Prize Courts International Law. These Courts apply the law of their country. The best proof of this is the fact that the practice of the Prize Courts of the several countries has hitherto differed in many points. Thus, for instance, the question what is and what is not contraband, and, further, the question when an attempt to break blockade begins and when it ends, have hitherto been differently answered by the practice of different States.
[919] See above, § [192]. The matter is regulated so far as Great Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch. 25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The Règlement international des prises maritimes, adopted in 1887 at Heidelberg by the Institute of International Law, provides in §§ 63-118 detailed rules concerning the organisation of Prize Courts and the procedure before them; see Annuaire, IX. (1888), p. 208.
Many writers, however, maintain that Prize Courts are International Courts, and that the law administered by these courts is International Law. Lord Stowell again and again[920] emphatically asserted it, and the vast majority of English and American writers[921] follow him. But it is to be expected that the recognition of the difference between Municipal and International Law, as expounded above, [Vol. I., §§ 20]-25, and of the fact that States only, and neither their Courts nor officials nor citizens, are subjects of International Law, will lead to the general recognition of the fact that the law applied by National Prize Courts is not and cannot be International Law.
[920] The Maria (1799), 1 C. Rob. 340; the Recovery (1807), 6 C. Rob. 341; the Fox and others (1811), Edwards, 311.
[921] See, for instance, Halleck, II. p. 411; Maine, p. 96; Manning, p. 472; Phillimore, III. §§ 433-436; Hall, § 277. On the other hand, Holland, Studies, p. 199; Westlake, II. p. 289; and Scott, Conferences, p. 467, distinctly agree with me.
And matters will remain as they are even after the establishment of the International Prize Court and ratification of the Declaration of London. The law of this Declaration is certainly International Law, but it will be binding only upon the States, and they, on their part, must embody it in their Municipal Law so that their Prize Courts are obliged to administer such a law in prize cases as is in conformity with the Declaration of London. It will be the task of the International Prize Court[922] to control the National Prize Courts in that direction. A State which is a party to the Declaration and would nevertheless order its Prize Courts to apply a law which is in opposition to the Declaration of London, would commit an international delinquency, but its Prize Courts would be obliged to apply such law.
[922] Trial before this Court is, of course, an international matter.
Result of Trial.
§ 435. The trial of a captured neutral ship can have one or more of five results:—vessel and cargo can be condemned,[923] or the vessel alone, or the cargo alone; and the vessel and cargo can be released either with or without costs and damages. Costs and damages must be allowed when capture was not justified, and, after the ratification of the Declaration of London and the establishment of the International Prize Court, an appeal may, according to article 64 of the Declaration of London and article 4 of Convention XII., be brought before the International Prize Court if costs and damages are refused or inadequately allowed by a Prize Court. But it must be emphasised that capture might be justified, as, for instance, in the case of spoliation of papers, although the Prize Court did not condemn the vessel, and, further, that costs and damages are never allowed in case a part only of the cargo is condemned, although the vessel herself and the greater part of the cargo are released. That, in case the captor is unable to pay the costs and damages allowed to a released neutral vessel, his Government has to indemnify the vessel, there ought to be no doubt, for a State bears "vicarious" responsibility[924] for internationally injurious acts of its naval forces.
[923] It would seem to be obvious that condemnation of the vessel involves the loss of the vessel at the date of capture; see Andersen v. Marten, L.R. (1907) 2 K.B. 248.