enemy ships found on the high seas or in the belligerent's territorial waters and enemy cargoes. But seizure does not, according to British prize law, affect the ownership of the thing seized. Before that can happen the thing seized, be it ship or goods, must be brought into the possession of a lawfully constituted Court of Prize, and the captor must then act for and obtain its condemnation as prize. The suit may be initiated by the representative of the capturing State, in this country by the Procurator-General. It is a suit in rem, and the function of the Court is to inquire into the national character of the thing seized. If it is found to be of enemy character, the duty of the Court is to condemn it; if not, then to restore it to those entitled to its possession. The question of national character is made to depend upon the ownership at the date of seizure, and is to be determined by evidence. The effect of a condemnation is to divest the enemy subject of his ownership as from the date of the seizure and to transfer it as from that date to the Sovereign or to his grantees. The thing-the res-is then his for him to deal with as he thinks fit, and the proceeding is at an end. As the right to seize is universally recognized, so also is the title which the judgment of the Court creates. The judgment is of international force, and it is because of this circumstance that Courts of Prize have always been guided by general principles. of law capable of universal acceptance rather than by considerations of special rules of municipal law. Thus it has come about that in determining the national character of the thing seized the Courts in this country have taken ownership as the criterion, meaning by ownership the property or dominium as opposed to any special rights created by contracts or dealings between individuals, without considering whether these special rights are or are not, according to the municipal law applicable to the case, proprietary rights or otherwise. The rule by which ownership is taken as the criterion is not a mere rule of practice or convenience; it is not a rule of thumb. It lays down a test capable of universal application, and therefore peculiarly appropriate to questions with which a Court of Prize has to deal. It is a rule not complicated by considerations of the effect of the numerous interests which under different systems of jurisprudence may be acquired by individuals either in or in relation to chattels All the world knows what ownership is, and that it is not lost by the creation of a security upon the thing owned. If in each case the Court of Prize had to investigate the municipal law of a foreign country in order to ascertain the various rights and interests of every one who might claim to be directly or indi rectly interested in the vessel or goods seized, and if in addition it had to investigate the particular facts of each case (as to which it would have few, if any, means of learning the truth), the Court would be subject to a burthen which it could not well discharge. There is a further reason for the adoption of the rule. If special rights of property created by the enemy owner were recognized in a Court of Prize, it would be easy for such owner to protect his own interests upon shipment of the goods to or from the ports of his own country. He might, for example, in every case borrow on the security of the goods an amount approximating to their value from a neutral lender and create in favour of such lender a charge or lien or mortgage on the goods in question. He would thus stand to lose nothing in the transaction, for the proceeds of the goods if captured would, if recovered by the lender, have to be applied by him in discharge of his debt. Again, if a neutral pledgee were allowed to use the Prize Court as a means of obtaining payment of his debt instead of being left to recover it in the enemy's Courts, the door would be opened to the enemy for obtaining fresh banking credit for his trade, to the great injury of the captor belligerent. Acting upon the principle of this rule Courts of Prize in this country have from before the days of Lord Stowell refused to recognize or give effect to any right in the nature of a "special" property or interest or any mortgage or contractual lien created by the enemy whose vessel or goods have been seized. Liens arising otherwise than by contract stand on a different footing and involve different considerations; but even as to these it is doubtful whether the Court will give effect to them. Where the goods have been increased in value by the services which give rise to the possessory lien, it appears to have been the practice of this Court to make an equitable allowance to the national or neutral lien-holder in respect of such services. In the judgment in The Frances, 8 Cranch, 418, speaking of freight, it is said: "On the one hand the captor by stepping into the shoes of the enemy owner of the goods is personally benefited by the labour of a friend, and ought in justice to make him proper compensation, and on the other, the shipowner, by not having carried the goods to the place of their destination, and this in consequence of the act of the captor, would be totally without remedy to recover his freight against the owner of the goods." It is, however, unnecessary to deal with the question of liens arising apart from contract, the present case being one of pledge founded on a contract made with the enemy. When the authorities are examined it will be found that they bear out the view that enemy ownership is the true criterion of the liability to condemnation. The case of The Tobago, 5 C. Robinson, 218, is in point. There the claimant was a British subject. In time of peace he had honestly advanced money to a French shipowner to enable the latter to repair his ship which was disabled, and by way of security had taken from the owner a bottomry bond. Afterwards war broke out with France and the vessel was captured. In the proceedings in the Prize Court for condemnation the holder of the bottomry bond asked that his security might be protected, but Lord Stowell (then Sir William Scott), after observing that the contract of bottomry was one which the Admiralty Court regarded with great attention and tenderness, went on to ask: "But can the Court recognize bonds of this kind as titles of property so as to give persons a right to stand in judgment and demand restitution of such interests in a Court of Prize?" And he states that it had never been the practice to do so. He points out that a bottomry bond works no change of property in the vessel and says: "If there is no change of property there can be no change of national character. Those lending money on such security take this security subject to all the chances incident to it, and amongst the rest, the chances of war." [The learned judge here reviews the authorities.] The appellants urged that if the Court now applies the principles illustrated by the cases above referred to very serious injustice will be done to and serious loss incurred by neutrals or subjects who, before the commencement of the war and in the normal course of business, have made advances against bills of lading. It is to be observed that similar injustice and loss, though possibly on a less extensive scale, must have been occasioned by the application of the same rules in the eighteenth and early nineteenth centuries, and similar arguments were in fact addressed to Lord Stowell as a reason why they should not be applied in individual cases. The reason why such arguments cannot be sustained is fairly obvious. War must in its very nature work hardship to individuals, and in laying down rules to be applied internationally to circumstances arising out of a state of war it would be impossible to avoid it. All that can be done is to lay down rules which, if applied generally by civilized nations, will, without interfering with the belligerent right of capture, avoid as far as may be any loss to innocent parties. It is precisely because the recognition of liens or other rights arising out of private contracts would so seriously interfere with the belligerent rights of capture that the Courts have refused to recognize such liens or rights in spite of the hardship which may be occasioned to individuals from such want of recognition. For the foregoing reasons their Lordships will humbly advise His Majesty that the appeal should be dismissed. NOTE.-It may be questioned whether the court is correct in holding in The Odessa that the neutral appellants were merely pledgees while the legal ownership was vested in the German buyer. For a similar confusion see The Orteric (1920), L. R. [1920] A. C. 724. While the neutral's title was for security only, nevertheless it was a legal title, and it was so decided by the Italian Prize Court in The Moravia (1917), Gazzeta Ufficiale, Jan. 29, 1917, and by the British Prize Court in The Miramichi (1914), L. R. [1915] P. 71. If the court is correct in holding that the neutral appellant was merely a pledgee the exposition of his rights in a prize court is unexceptional. See comments on the English decisions by Professor Samuel Williston in Harvard Law Review, XXXIV, 756-758. For the discussion of claims of various kinds set up by intermediate parties to the ship or cargo, see The Aina (1854), Spinks, 8, The Hampton (1866), 5 Wallace, 372, The Marie Glaeser (1914), L. R. [1914] P. 218 (mortgages); The Vrou Sarah (1803), 1 Dodson, 355n., The Battle (1867), 6 Wallace 498, The Russia (1904), Takahashi, 557 (claims for necessaries and disbursements); The Sechs Geschwistern (1801), 4 C. Robinson, 100, The Marianna (1805), 6 Ib. 24, The Ida (1854), Spinks, 26, The Ariel (1857), 11 Moore, P. C. 119 (liens for debt); The Frances (1814), 8 Cranch, 418 (factor's lien); The Nigretia (1905), Takahashi, 551 (salvage); The Mary and Susan (1816), 1 Wheaton, 25, The Lynchburg (1861), Blatchford, 3, The Amy Warwick (1862), 2 Sprague, 150, The Carlos F. Roses (1900), 177 U. S. 655 (assignment of bill of lading); The Tobago (1804), 5 C. Robinson, 218 (bottomry bond); The Emil (1915), 1 Br. & Col. P. C. 257 (mortgagee of captor's nation); The Linaria (1915), 31 T. L. R. 396 (advance on goods after arrival); The Urna (1920), L. R. [1920] A. C. 899 (advances by selling agent). But a neutral carrier may have a lien for freight on enemy's goods, The Hoop (1799), 1 C. Robinson, 196; The Hazard (1815), 9 Cranch, 205; The Ship Societe (1815), 9 Ib. 209, The Antonia Johanna (1816), 1 Wheaton, 159. But if the goods are contraband or if the vessel is engaged in the coasting trade of the enemy, no such lien is recognized, The Emanuel (1799), 1 C. Robinson, 296. SECTION 5. EXEMPTIONS FROM CAPTURE. THE PAQUETE HABANA. SUPREME COURT OF THE UNITED STATES. 1900. Appeals from the District Court of the United States for the Southern District of Florida. [The Paquete Habana and the Lola, fishing smacks belonging to Spanish subjects resident in Cuba, on returning to Havana from a fishing expedition, were captured by the American blockading squadron, taken to Key West, libelled, condemned, and sold. From the decree of condemnation this appeal was taken on the ground that such vessels are by law exempt from seizure.] MR. JUSTICE GRAY delivered the opinion of the Court. . By an ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from capture as prize of war. This doctrine, however, has been correctly contested at the bar; and no complete collection of the instances illustrating it is to be found, so far as we are aware, in a single published work. It is therefore, worth the while to trace the history of the rule, from the earliest accessible sources, through the increasing recognition of it, with occasional setbacks, to what we may now justly consider as its final establishment in our own country and generally throughout the civilized world. [Here follows an elaborate review of the authorities.] This review of the precedents and authorities on the subject. appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considera |