The Bellaman and The Agostino Bertani
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 1948 |
| Date | 29 July 1948 |
| Docket Number | Case No. 199 |
| Court | Probate, Divorce and Admiralty Division |
(Lord Merriman, P.)
Armistice — Effect on Belligerent Rights — Seizures in Prize.
Prize Law — Requirements for Seizure in Prize — Ship Aground in Captured Port — Effect of Armistice — Italian Peace Treaty — Meaning of “Purported Exercise of Belligerent Rights”.
The Facts.—The Crown sought the condemnation in prize of two Italian vessels which at all material times were lying aground in Tripoli harbour, where they had been sunk by Allied action whilst the port was still in enemy hands. On January 23, 1943, Tripoli was captured by British troops. On September 3, 1943, the Italian Armistice was signed. It was admitted by the Crown that the right to capture Italian vessels was precluded by the terms of the Armistice; not, however, the right to render effectual in the Prize Court captures made before the Armistice. In 1944 the Commander-in-Chief Mediterranean issued a standing order that such vessels as might be salved should be seized in prize. Nothing was done, however, about the present vessels until February 3, 1947, when both were boarded by an officer of the Royal Navy, who hoisted the white ensign in each and signed a certificate that each had been seized in prize that day. On February 10, 1947, the Treaty of Peace with Italy was signed, by which, in Article 76, Italy waived (inter alia) all claims of any description against the Allied Powers on behalf of the Italian Government or Italian nationals arising directly out of the war; waived all claims with respect to the decrees or orders of Prize Courts of the Allied Powers; agreed to accept their decrees as valid and binding on or after September 1, 1939, concerning Italian ships or goods; and waived all claims arising out of the exercise or purported exercise of belligerent rights. It was provided by the Treaties of Peace (Italy, Rumania, Bulgaria, Hungary and Finland) Act, 1947, and the Treaty of Peace (Italy) Order, 1948, that, inter alia, Article 76 should be and have effect as law.
It was argued for the claimants that the Crown's possession of the ships was wholly unlawful, that rights in prize were not exercised until these rights had lapsed by the terms of the Armistice, and that Article 76 of the Treaty therefore did not apply. Accordingly, they claimed release of their ships.
Held: that the owners' claims arose out of the “purported exercise of belligerent rights” within the meaning of Article 76 of the Peace Treaty, which operated to bar these claims. Further, that failure of the Crown to comply with the Naval Prize Act, 1864, s. 16 (which imposes a duty to deliver up every ship taken as prize to the Marshal of the Prize Court forthwith) did not rebut the presumption that the vessels were seized when Tripoli was captured; and that the vessels were therefore condemnable as good and lawful prize.
Lord Merriman, after reciting the facts and the terms of Article 76 of the Peace Treaty, considered the decision of the Judicial Committee of the Privy Council in The BathoriELR, [1934] A.C. 91, where the Court had to consider the effect on a claim in prize of a similar provision in the Treaty of Trianon, which provision had likewise been made a part of English law. He continued :
“The terms of Article 76 are not identical with the relevant clauses of the Treaty of Trianon, but I am unable to find any distinction in principle. Manifestly, therefore, if Article...
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