The Germania
| Jurisdiction | England & Wales |
| Judgment Date | 28 October 1915 |
| Date | 28 October 1915 |
| Court | Probate, Divorce and Admiralty Division |
Prize Court - Outbreak of War - Days of Grace -
A yacht is not a “navire de commerce,” and, therefore, is not entitled to the protection in respect of days of grace, &c., conferred on a merchant ship by the Sixth Hague Convention (1907), art. 1.
In the case of an enemy-owned yacht seized, on the outbreak of war, in a British port, and subsequently condemned and ordered to be sold, claimants sought to recover from the Crown the cost of necessary repairs executed before the seizure, together with the expenses attending subsequent dry docking, and, as an act of grace, the Crown consented to the assessment of those amounts by the Registrar and merchants.
Observations on the effect of non-compliance by one belligerent with the terms of the Hague Convention to which he is a party.
ON July 27, 1914, the steel sailing yacht Germania, of the estimated value of 45,000l., and belonging to a German subject (Herr Gustav Krupp von Bohlen), arrived at Cowes, in the Isle of Wight, from Norway to take part in the racing. War broke out on August 4 between Great Britain and Germany, and on August 6 the yacht was seized, and a writ was issued on August 26. On September 24, pending an inquiry as to the status of the vessel under the Hague Convention, an order for detention was made; but to prevent the vessel deteriorating, leave was given to the claimant, Baron von Bulow, as the agent of the owner, to dry-dock and paint the vessel at the expense of the claimant, and without any lien or claim as against the Admiralty Marshal.
The Solicitor-General now applied on behalf of the Crown that the order of detention should be superseded by an order for the condemnation of the yacht as enemy property, the contention of the Crown being that the yacht did not come within the terms of art. 1 of the Hague Convention No. 6 (1907), not being a merchant ship (“navire de commerce”).F1
The Solicitor-General (Sir F. E. Smith, K.C.) and A. B. Marten (for G. T. Simonds, serving with His Majesty's Forces), for the Crown. It is submitted that the suggested status of the vessel, under art. 6 of the Hague Convention, has no foundation, as that Convention deals, and purports to deal, only with merchant vessels. In the case of the steam yacht OrientalF2, belonging to a subject of the kingdom of Hungary, which had gone to Cowes to take part in the regatta and was there found on the outbreak of war, the judgment pronounced in this Court on March 8, 1915, contains the following passage: “The Crown contends that although days of grace were accorded, that in truth, and in fact, this vessel is not a vessel to which the Hague Convention applies at all. The Hague Convention applies only to merchant vessels. The preliminary article to the sixth Convention shows that the object was to secure the safety of commerce as far as possible, and the French version — which is the authoritative one — describes vessels which come within the purview of that Convention as ‘navires de commerce.’ This is not a vessel coming within that category at all. Nevertheless this country was willing to give some days of grace as a matter of fairness due to the comity of nations; and certain days of grace were allowed as a favour to this vessel. For some reason she was not able to avail herself of the days of grace which were given, and she remained there until the time would have expired if she had come under the Hague Convention. It is quite clear on these grounds that this vessel was enemy property at the time of seizure and was confiscable, and therefore I order that the vessel be condemned and sold and the proceeds of her sale be paid into Court.”
As to the claims of Ratsey & Lapthorn, Limited, and Pascall, Atkey & Son, Limited, of Cowes, in view of the fact that the work performed and material (in the shape of sails, and other necessaries) supplied by these firms was before the outbreak of war, the Crown is prepared, by way of concession, and without admitting any liability, to consent that these claims should go before the Registrar and merchants on the question of amount.F3
According to the affidavit dated October 14, 1915, of William Summers, a director of Summers & Payne, Limited, yacht builders and brokers carrying on business at Southampton, the claim of that firm is for necessaries supplied and moneys advanced to the master to pay wages, maintenance, and passage home of the German master and crew, the vessel carrying an English skipper and mate as well as a German captain and crew. The temporary repairs, which included repairs to the keel and docking, amount to 176l. 2s. 6d., whilst the advances amount to 400l., and the vessel has been berthed, at the request of the Registrar of Shipping at Southampton, in the firm's yard since December 20, 1914, where she still remains. The affidavit further states that “the grounds upon which my firm base their claim are that the work done or materials supplied by them were necessary for the preservation and maintenance of the Germania, and that they have or had a lien on her for the amounts claimed. My firm fully recognize that such work as they have done on the yacht, and the money they have parted with, has been done quite voluntarily, but submit that it is equitable that the advantages that must accrue to the Crown in consequence thereof should be recognized.”
With reference to this claim I would draw attention to the judgment in The Marie GlaeserF4, in which the earlier authorities are reviewed and the principle adopted that “liens whether in favour of a neutral on an enemy's ship or in favour of an enemy on a neutral ship are equally to be disregarded in a Court of Prize.”
As to the claim of Baron von Bülow, as agent for the owner, an appearance was entered on October 29, 1914, and the claim delivered a few days ago. In the affidavit leading to appearance sworn on October 20, 1914, it is stated that “the grounds of my claim are as follows: That, having regard to the provisions of the Sixth Hague Convention of the year 1907, and having regard to the Order in Council, dated August 4, 1914, the said vessel is not liable to be condemned as prize. That, having regard to the reversionary interests of my principal in the said vessel and the future liabilities which may be sought to be charged against him, the interests of my principal should be represented herein.”
The contention of the claimant is, as I understand it, that no days of grace were allowed, and that the yacht was not allowed to leave. That is not a matter of law, and not a matter of legal obligation, and I need not further deal with it. The second contention is that the yacht is of no value for naval, military, or commercial purposes; but that submission is obviously untenable, because a yacht of this kind can very well be used for ancillary purposes, such as that of a mine sweeper, or mine layer. There has been no difficulty in utilizing the large number of yachts which have been voluntarily placed at the disposal of the Navy in this country. Thirdly, it is alleged that the yacht is not liable to confiscation or condemnation. That point has already been dealt with. Fourthly, it is said that confiscation or seizure is contrary to the comity of nations and public policy and of the Hague Convention; but the comity of nations and public policy can hardly be put forward in this connection, and I have dealt with the Hague Convention.
Bateson, K.C., and C. R. Dunlop, for Summers & Payne, Limited, yacht builders and repairers, of Southampton and Cowes, and for Baron von BÜlow, interned at Donnington Hall, and intervening as agent for the owner of the yacht. The vessel in question here is not a steam yacht — she is a sailing yacht, a racing yacht — and it can hardly be said that she is a vessel which could be used in any naval or military sense or that any such vessel has been so used during the time the war has now been going on. Officials from the Admiralty have been down lately to inspect her, and they say that she is of no use. She is not a merchant vessel, and is of no commercial, naval, or military value.
By the comity of nations days of grace in some shape or form have been allowed to enemy vessels before condemnation, and it is submitted that a toy — or whatever you like to call this article, this racing yacht or pleasure yacht — is a fortiori to be given an opportunity of departing in peace, especially when she came originally as a guest, so to speak, for the Cowes Regatta. If you do not condemn merchant vessels, but only detain them, you certainly ought not to condemn, but only detain, a pleasure vessel of this kind. The principle of days of grace began, it seems, in 1854. In Mr. Westlake's book (International Law, part II., War, 2nd ed. (1913)), pp. 42, 43, the following passage occurs: “Since the middle of the nineteenth century it has been the constant practice in declarations of war to name a time within which enemy merchant ships then in harbour may load and depart; and it is usual to add that enemy merchant ships which have sailed from a foreign port before the date of the declaration may enter and discharge their cargoes, and then depart with freedom from molestation on their voyage to any port not blockaded. This, combined with the growing tendency of opinion to...
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