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9 377.

Möwe (14), navire allemand saisi dans le Firth of Forth. Dans cette affaire la décision s'est basée non seulement sur l'interprétation (négative) du terme „port" dans l'article 1r, mais encore sur l'interprétation (positive) des mots „en mer" dans l'article 3.

„It was urged that the vessel was seized within the port of Leith, and alternatively, that she was taken within territorial waters, and not „on the high seas", and therefore is not confiscable. — In this convêntion I am of opinion that the word „port" must be construed .... etc. [comp. ci-dessus, § 356]. — Alternatively, it was alleged but not proved that she was taken in „territorial waters", and that therefore she was not captured on the high seas. But I wül assume that she was within territorial waters when the capture was made. In my view that is whoüy immaterial. The sixth Hague Convention does not refer to „territorial waters". A vessel might be in territorial waters for scores of mües, either innocently or nefariously, and pass numerous ports, without any intention to enter any of them. It is idle to say that on this account she would be free from capture. Where The Hague Conventions intended to deal with territorial waters they are expressly mentioned as distinguished from „port" — for example, in Convention XII, arts. 3 and 4, and Convention XIII, arts. 2, 3, 9, 10 etc. the words „les eaux territoriales" are used in contradistinction to „les ports". (Cf. also the Déclaration of London, art- 37, where territorial waters are described as „les eaux des belügérants".) „En mer", which is the phrase used in article 3 of the Sixth Convention, is also inapt to indicate „territorial waters". — Then it was contended that the vessel could not be condemned because she was not captured on „the high seas". The words „encountered on the high seas", in article 3, are not an accurate rendering of the authoritative French, „rencontrés en mer". Where the conventions intend to describe „upon the high seas", the appropriate phrase „en pleine mer" is used. See Convention VIL, recital. Another phrase, „en haute mer", is used in the Déclaration of London, art. 37, to signify the same thing. — To iüustrate the meaning of the word „port" in the Conventions I would further observe that the word „ports" is used in various places in conjunction with, but in contradistinction to, roadsteads, and to territorial watera See Convention XIII., where the words „les ports, les rades, ou les eaux territoriales" are frequently used.

In my view the claimant in his affidavit was accurate when he said his vessel was „taken at sea". The words of article 3, „rencontrés en mer", are exactly applicable to his case. And I have no hesitation in finding that she was captured at sea, and not seized in port. I therefore decree that the vessel be condemned as lawful prize."

Belgia, n°. 1 (123) : navire aUemand saisi près de la cóte de Somersetshke.

Erymanthos (28): navire aUemand saisi dans ou près d'un mouillage sur la cóte de 1'ile de Malte.