CREMIDI against POWELL. (THE " GERASIMO.") PROCEEDINGS BEFORE THE JUDICIAL COMMITTEE (l) OF THE PRIVY COUNCIL, ON APPEAL FROM THE HIGH COURT OF ADMIRALTY, March 2nd,, 3rd, and 24th, 1857. (Reported in 11 Moo. P.C. 88.) Appeal from the judgment of the High Court of Admiralty condemning as prize of war a cargo of corn shipped on board the Gerasimo. The cargo was the property of Ionian merchants carrying on business at Galatz in the Principality of Moldavia,150 miles from the mouth of the Danube, and had been shipped there on board the Gerasimo, a Wallachian vessel, after a declaration of war between England and Russia, and while the Principalities of Moldavia and Wallachia were in the military occupation of the Russians, who disclaimed any intention of incorporating them with the Russian dominions. The Gerasimo was captured off one of the mouths of the Danube. Before the date of the capture the English and French admirals had proclaimed an effective blockade of the mouths of the Danube to prevent the transport of provisions to the Russians. Held by the Judicial Committee reversing the judgment of the High Court of Admiralty, and decreeing the restitution of the cargo with costs and damages- 1. War. Traders. National Character. Territory in Occupation of Enemy. The national character of a trader is to be decided by the national character of the place where the trade is carried on ; but after a declaration of war foreign traders are allowed a reasonable time to remove their property from belligerent territory. The mere occupation and possession of territory by an enemys forces, as in this case by the Russians, is not enough to.make such territory hostile and its inhabitants enemies. 2. Blockade. Notice of. Object of. A ship which has entered a blockaded port before the blockade is entitled to come out with any cargo shipped before notice of the blockade. The blockade of a port is prima facie notice of the blockade to all the ships in such port, but the blockade of a rivers mouth is not prima facie notice to ships in a port 150 miles up the river. Where a blockade has been established for the declared purpose of preventing the import of provisions into a port, it is not a breach of such blockade to leave such port with a cargo of provisions. 3. Duty of Captors. It is the duty of captors to send their prize to some port in Her Majestys dominions as soon as possible, and to procure the examination in preparatory of the principal officers of the vessel, and to deposit on oath in the Admiralty Court all papers found on board ; and they cannot excuse themselves by the alleged exigencies of the service, or by the impossibility of finding a commissioner to take the examination in the port to which the prize was sent. 4. Practice. Status of Foreign States. The facts necessary to enable the Committee to judge of the status of the Principalities of Moldavia and Wallachia were obtained by communication with the Foreign Office.(2) (1) Present the Right Hon. T. Pemberton Leigh (afterwards Lord Kingsdown), Sir Edward Ryan, Sir John Dodson, and Sir John Patteson. (s) See The Ionian Ships, above, p. 438. 789] Cremidi against Powell, 1857. [790 This was an appeal by the owners of the cargo shipped on board the Gerasimo from the judgment of the High Court of Admiralty condemning the ship and cargo as enemys property, and also for breach of the blockade of the mouth of the Danube. The case raised questions (1) as to the effect of the Russian occupation of the Principality of Wallachia, (2) as to whether a blockade instituted for the declared purpose of preventing the importation of provisions was broken by a vessel coming out laden with a cargo of provisions, (3) as to the duty of captors in dealing with prize. The Gerasimo was a Wallachian ship, laden with a cargo of Indian corn, belonging to Messrs. Epaminonda Pana er Co., merchants at Galatz, subjects of the Ionian Islands. The ship left Galatz in the month of July 1854, bound to Trieste in Austria, and on the 19th day of July was captured by Her Majestys steamship of war Veeuvius, coming out of the Sulina mouth of the Danube, and sent to Constantinople. The ship was released upon security being given, but the cargo was sold at Constantinople under circumstances hereinafter stated. As the captors failed to take any further steps to obtain the condemnation of the ship and cargo as prize of war, proceedings were commenced in the High Court of Admiralty of England by the claimant Cremidi, on behalf of the owners of the cargo, against Richard Ashmore Powell and Francis Hart Dyke, Her Majestys Procurator-General, to compel the captors to proceed to adjudication. The claim for the restoration of the cargo. was made on the 21st of June 1855. On the 23rd June the claimants proctor took out a monition against the captors to proceed to adjudication. The captors brought in an affidavit of Mr. Young, their agent in England, from which it appeared that Mr. Nicholson (a Commissioner sent out by the Court of Admiralty to Constantinople) had proceeded thither on this case, and also on the cases of the Aspasia and the Achilles, for the purpose of examining witnesses, and a return from him, with papers annexed, was brought into Court. The ship was condemned on the 2nd of November 1855, no claim for restitution having been made in respect of her. On the 14th of November 1855 the claim for the cargo came on for hearing, when it appeared by the claim that the real owners wore Epaminonda Pana Co., described as - subjects of the Ionian Islands, the place of their actual residence- I not- being set forth. ;The claimant, Cremidi, appeared ta be their agent in Lon don. The claimant prayed for a decree of restitution, with costs and damages.- The captors prayed for a decree of condemner tion. The Court admitted the olaim forthe cargo, and directed further proof to be given by the claimant as to the cargo being the property of his principals, and allowed both parties to bring in further proof as to the non-examination of witnesses by the captors in preparatory, and also as to whether the sale of the cargo was by consent of all concerned. The captors proctor filed an affidavit of the respondent Powell, and of La Fontaine, prize agent for the British squadron in the Black Sea, explaining the omission to examine the master and crew in preparatory as due to their having quitted the vessel, and also as to the sale of the cargo. The claimant in further proof brought in a bill of lading of the cargo, and a pro forma account of the sales of the cargo at the port of destination. On the 15th of July and 1st of August 1856, the cause was fully argued upon further proof. The Judge of the Admiralty Court (the Right Hon. Dr. Luehington), by his inter. locntory decree. dated the 8th of August 1856, pronounced the cargo to have belonged, at the time of the capture thereof, to enemies of the Crown of Great Britain, and, as such, liable to confiscation, and condemned the same as prize. The present appeal was interposed on behalf of the owners of the cargo against this decree. BEFORE THE JUDICIAL COMMITTEE. March 2nd and 3rd, 1857. Dr. Adclame and Dr. Twiss for the appellant, and the Queens Advocate (Sir john Harding) and Dr.Deane for the respondents. The principal question argued was, whether the owners of the cargo were to be considered as alien enemies by reason of the possession which the Russians held of Moldavia and Wallachia, at the time of the shipment of the cargo. On this point the following authorities were cited : The Indian Chief,(a) The President,(b) The Anna,(c) The Boedes Luat,(d) The Magnue,(e) 1 Kent. Com. 82, Story On Prize Courts (Pratts ed.) p. 3. Further questions were raised, as to whether Galatz could be treated as an enemys port ; whether it had been blockaded at all as against neutrals; and whether the notification of blockade was such as to prohibit egress as well as ingress ; the Frau Ileabe, ( f ) Wheaton, Elements of International Law, p. 595 (6th ed.). As to the duty of captors to bring the chief officers of the captured ship to (a) 8 C. Rob. 12. (b) 5 C. Rob. S7/. (c) 5 C. Rob. 873. (4) 5 C. Ilob. 263. (e) 1 C. Rob. 31. (1) 4 C. Rob. 63. 791] Cremidi against Powell, 1857. [792 the nearest British port, and examine them in preparatory, and to proceed at once to adjudication, the following cases were cited : The Bothnea and Tanstoff,(a) The Arabella and The Madeira,(b) The Huldah,(c) The Washington,(d) The Speculation,(e) The Madonna del Burso,(f ) The Peacock.(g) Judgment was reserved in this as well as the previous appeals of the Aspa.sia and the Achilles, which involved the same question. March 24th, 1857. JUDGMENT. The Right Hcn. T. PEMBERTON LEIGH : This was an appeal from a. decree of the lligh Court of Admiralty, dated the 8th of August 1856, condemning the cargo of the ship Gerasimo as lawful prize. At the time of her capture this ship was bound to Trieste with a cargo of Indian corn which she had taken on board at Galatz. She was sailing under Wallachia? colours, and on the 19th of July 1854, during the prosecution of her voyage. was captured as she was coming out of the Sulina mouth of the Danube, by Her Majestys ship Vesuvius, under the command of Captain Powell. It was the duty of the captors, as soon as possible, to send their prize to some convenient port in Her Majestys dominions for adjudication, to procure the examination in preparatory of the principal officers of the vessel, and to deposit in the Admiralty Court, upon oath...
