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667

§ 368.

Türul (1067), qu'il s'agit de „circonstances de force majeure" lorsque, malgré une permission générale et officielle de sortir librement, un navire déterminé a été placé sous la surveillance d'un garde et que ses papiers de bord ne lui sont pas restitués.

Dans 1'espèce, le vapeur ennemi (enregistré a Fiume, Hongrie) se trouvait a Port Jackson (Nouvelle Galles du Sud).

„On August 22 at midnight the days of grace expired. Now the question is whether this ship „par suite de circonstances de force majeure, n aurait pu quitter le port ennemi pendant le délai visé a l'article précédent", within the terms of Article 2 of the Convention. If that was so theh she could not be confiscated, and the order made by the Court below was right. It is clear that the vessel could not leave the enemy port within the period contemplated in the preceding Article unless, among other things, her ship's papexs and charts were returned to her, and the watchman was removed. Acts had been done in exercise of the belligerent rights of the Crown, which in themselves was powerless to undo them and the only ground upon which it can be said that she was not subject to force majeure during the period down to midnight ot August 22 is that the authorities had decided, and, by virtue of the Proclamation, had made known their décision, that these acts would be undone at thé request of the captain of the vessel, if he chose to avaü himself of the opportunity given by the Proclamation, and to assert the conventional rights secured by the Hague Convention.

The view their Lordships take of the Proclamation is that the terms of it did not constitute an intimation to the captain that, upon his choosing to avail himself of the days of grace, to apply for a pass, and to intimate what lus port of destination was, so that its name might, if approved be mserted m the pass, he would then, without dif ficulty, and without risk of refusal, have his charts and his ship's papers returned to him, and have the watchman withdrawn, so that he would be free to leave by midnight of the 22nd.... Their Lordships think that the language in which the Crown exercises the right of defining this period of grace within the Article ought to be explicit and unambiguous, and explicit and unambiguous with reference to the party whose opportunity of avaüing lumself ot the benefits of the Convention is tó be affected by the operation of the proclamation upon his particular case. It would ill-become a Sovereign Power, and would ill-become a Court of Prize adjudicating upon the rights of others as against the officers of that Sovereign Power, tóseek to give effect to a Proclamation which was less than clear, in order to curtail the advantages which the Convention was intended to secure to a ship which finds itself in its enemy's port. There was, in their Lordships' view, nothing which sufficiently stated to the persons interested in this ship that the seizure, the removal of the papers and the charts, and the custody given to the watchman, were all matters which were intended to be covered by the general terms employed in the Proclamation and

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