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153

§ 94.

.,1 perhaps ought to mention one other consideration which was placed before the Court by counsel for the daimants by reference to Article 57 of the Déclaration of Londen, whereby it had been provided. . . etc.

Whether if all the circumstances were known, it would be hdd in the Courts of Holland that the vessel was „entitled" to fly the Dutch flag I do not know. But in any event by an Order in Councü of October 20' 1915, it was declared that the said Article 57 should from and after that date cease to be adopted and put in force, and that, in lieu of the Artide the Pnze Courts should apply the rules and principles formerly observed in them. The vessd was not captured tül October 27, 1915.

It was said that the Order in Councü was only published in the London Gazette on October 26, and that the vessel had no opportunity of changïng her flag. Whether it was desired to change it, and how long it would have taken, I do not know.

The date of the publication of the Order in Councü, whatever it was is in my view immaterial. The Article was not in f act in force at the daté of capture, and a ship which was reaüy an enemy vessd had no protection under it; and that is enough

La cour d'appel se débarrassa de la question par les observations suivantes, Hamborn (1197):

„One smaU point remains. By Article 57 of the Déclaration of London, 1909, varying the rule of international law, the neutral or enemy character of a ship is simply determined by the flag which she is entitled to fly. Down to October 25, 1915, the Crown, by adopting the Déclaration of London, had waived its right to rely on other criteria. On that day was published an Order in Councü by which that waiver was withdrawn.

The ship was captured on October 27. It is said that the appellant company was unaware of this Order, but its ignorance cannot have the effect of compeUing the Crown to continue to waive rights which, in truth, were in fuU effect, nor, if knowledge of this kind could matter, would it be the knowledge of the company, which merely owned the ship, but that of the time charterers, who sent her to sea, as to whom nothing is proved." Comp. aussi plus loin, § 212, (3).

(2) Puis, les juridictions anglaises se sont prononcées sur la question de savoir si une capture effectuée sous 1'empire de 1'artide 57 de la Déclaration de Londres, pouvait légalement être jugée conformément a l'„Order in Councü" du 20 octobre 1915 promulgué après la saisie.

Cette fois nous nous trouvons en présence d'un jugement de la „Prize Court for Egypt" qui, contrairement a 1'opinion de la juridiction francaise, penche vers l'application de la prescription postérieure du droit national.

Proion (264) : navire battant pavillon grec, mais appartenant en réalité au Gouvernement ou è. des ressortissants allemands (ennemis);

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