The additional protocol to this convention was made on the 19th of September, 1910, to meet the case of the United States and other countries where appeals from the highest national prize-courts (in our case the Supreme Court of the United States) are of doubtful constitutionality. This protocol is considered as forming an integral part of the convention and was ratified by the United States as such. The essential part of the additional protocol is found in the first two articles, which read as follows:

"Art. 1. The powers signatory or adhering to The Hague convention of October 18, 1907, relative to the establishment of an international court of prize, which are prevented by difficulties of a constitutional nature from accepting the said convention in its present form have the right to declare in the instrument of ratification or adherence that, in prize cases, the international court of prize can only be exercised against them in the form of an action in damages for the injury caused by the capture."

"Article 2. In the case of recourse to the international court of prize, in the form of an action for damages, Article 8 of the convention is not applicable: it is not for the court to pass upon the validity or nullity of the capture nor to reverse or affirm the decision of the national tribunals.

"If the capture is considered illegal, the court determines the amount of damages to be allowed, if any, to the claimants."1

In Article 4 of Convention XIII of the second Hague conference, duly accepted by the United States, it is provided that a prize-court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters. "This rule has," as Higgins says, "long been recognized as a rule of international law toward the establishment of which the action of the United States in 1793 contributed in a great degree."2 The article of the same convention numbered 23, which allows prizes to

1 See Appendix III, p. 521.

* Higgins, "Peace Conferences,” pp. 447–463.

remain in neutral waters pending the decision of a belligerent prize-court, was not accepted by the United States.1

"The jurisdiction of prize-courts," says Lawrence, "extends over all captures made in war by their country's cruisers, over all captures made on land by a naval force acting alone or in conjunction with military forces, and over seizures made afloat by the joint operation of land and sea forces. It also includes all recaptures, ransoms, and ransom bills, and all incidental questions growing out of the circumstances of capture such as freights and damages. And when it was customary for states to make seizures afloat in anticipation of war, the cases that arose therefrom were taken before prize-courts. Speaking generally, we may lay down the proposition that the courts of neutrals have no jurisdiction over the captures of belligerents.

"But to this rule there are exceptions. Jurisdiction exists and can be exercised when the capture is made within the territorial limits of the neutral state, or when a vessel, originally equipped for war within neutral jurisdiction, or afterward made efficient by an augmentation of warlike force therein, takes a prize at sea and brings it within the waters of the injured neutral during the voyage in which the illegal equipment or augmentation took place. In both cases neutral sovereignty is violated by one belligerent, and in consequence the neutral is exposed to claims and remonstrances from the other. Jurisdiction is therefore conferred upon it for its own protection and in order that it may insist upon the restoration of the property unlawfully taken."2

By Section 5287 of the United States Revised Statutes jurisdiction is conferred upon the United States district courts over prizes taken illegally and improperly by vessels fitted out or augmented in force within the limits of the United States. Of this Fenwick says:

"In other words, where vessels have been fitted out and

1 Higgins, "Peace Conferences," p. 452.

'T. J. Lawrence, "Principles," etc., 4th ed., par. 189.

armed, or have increased their force, in violation of the neutrality of the United States, the courts of the United States will intervene to effect a restitution of prize captured by such vessels, not because the capture is illegal as between captor and the former owner, but because the neutral state has the right to vindicate its own sovereignty by divesting possession of property acquired as the result of a violation of its sovereignty."1

Kent says that "the prize-court of an ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor."2

Secretary Bayard wrote in 1885 that "neutral passengers, in such a case (capture at sea of a passenger steamer), like neutral goods not contraband of war, found on board a belligerent vessel are exempt from the jurisdiction of any prize-court before which the vessel when captured might be taken. The captor would be under no obligation to transport either passengers or goods, being neutral, to any other port of debarkation than that where a competent prize-court may sit."3

204. International Prize-Court. The second Hague conference of 1907 formulated Convention XIII, which has been referred to for the purpose of establishing an international court of appeal from the national prize tribunals. "The objections to the present system of national prize-courts are that the captor is both judge and party in his own cause, with a natural leaning in favor of his own side, and that, though nominally administering international law, they are dominated by the laws of their own country. These considerations do not appear so striking in the case of captures from an enemy as when neutral property is concerned, and various proposals from the time of Hübner, a Danish publicist, in 1759, have been made for a reform in prize-court procedure." This matter became a subject for discussion and formulating in the second 1 Fenwick, "Neutrality Laws," p. 90.

2 Kent, "Commentaries," 1031.

Moore, "Digest of Int. Law," vol. VII, p. 590. 'Higgins, "Hague Conferences," pp. 431-2.

Hague convention, resulting in Convention XII for the establishment of an international prize-court, which has been, as previously mentioned, ratified by the United States.

This convention will be found, with the additional protocol incorporated in it by mutual consent, in the appendix of this work. Up to the present time it has been accepted and ratified only by the United States. The question of the composition of the court was a matter of much dispute both from the smaller states and from those states which were not in accord with continental views upon maritime international law. With the exception of Great Britain, the United States, and possibly Japan, out of the eight permanent judges the other permanent judges are from continental European states and presumably favoring that school of public law. The other seven judges which make up the fifteen required for the full bench are drawn by rotation and lot in accordance with a table and methods arranged for in the convention. Besides the doubtful legality of an appeal from the United States Supreme Court, there was a question of importance to the United States, Great Britain, and some other powers as to the laws and usages to be observed in the decisions of the court.

Article 7 provided that:

"If a question of law to be decided is covered by a treaty in force between the belligerent captor and a power which is itself, or whose national is, a party to the proceedings, the court is governed by the provisions of said treaty.

"In the absence of such provisions the court shall apply the rules of international law. If no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity."1

The first clause just given brings into operation the various conventions of The Hague conference relating to subjects likely to be brought before an international prize-court.

The declaration of London gives a very illuminating and valuable code to meet the second clause, leaving a very few but

'Higgins, "Hague Conferences,” pp. 410, 411.

nevertheless important matters to be left to the general principles of justice and equity. The additional protocol urged upon the signatories of the declaration of London by the United States has been incorporated in this convention as mentioned, the matter having been initiated in the wish (vœu) of the declaration of London. There is no doubt that the dual system of jurisprudence now embodied in the international prize convention entails disadvantages, but it is hoped notwithstanding that the convention and court will be put into operation, and defects and omissions can be remedied in the light of experience.

205. Compensation for Capture When Found Void.-The article of the declaration of London treating of this subject states as follows:

"If the capture of a vessel or of goods is not upheld by the prize-court, or if the prize is released without any judgment being given, the parties interested have the right to compensation, unless there were good reasons for capturing the vessel or goods."1

The accompanying report on this subject says:

"A cruiser has captured a neutral vessel on the ground, for example, of carriage of contraband or breach of blockade. The prize-court releases the vessel, declaring the capture to be void. This decision alone is evidently not enough to indemnify the parties interested for the loss incurred in consequence of the capture, and this loss may have been considerable, since the vessel has been during a period, which may often be a very long one, prevented from engaging in her ordinary trade. May these parties claim to be compensated for this injury? Reason requires that the affirmative answer should be given, if the injury has been undeserved, that is to say, if the capture was not brought about by some fault of the parties. It may, indeed, happen that there was good reason for the capture, because the master of the vessel searched did not produce evi1 Declaration of London, Art. 64, Appendix IV.