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§ 779.

1312

§ 779. Les principes qui gouvernent la recousse ont été discutés avec quelque ampleur par la Cour de Londres en cause du Pontoporos ,* comme il s'agissait dans ce cas d'un navire neutre (grec) recous sur 1'ennemi, la cour anglaise y traita des prises neutres seules. La matière des prises nationales recousses sm l'ennemi a trouvé d'ailleurs un règlement détaillé dans la législation anglaise [comp. §§ 36 et 762], ce qui n'est pas le cas pour les reprises de navires ou de marchandises neutres. Voir la décision Pontoporos, n°. 2 (313) [comp. aussi la décision Pontoporos, n°. 1 (70), citée au § 560].

„This is the first case in which proceedings for prize salvage have been taken in the course of the present war. The claim is made only against the owners of the vessel, and not against the cargo owners.

By the law of nations the general rule is that „no salvage is due for the recapture of neutral vessels and goods, upon the principle that the liberation of a bonae fidei neutral from the hands of the enemy of the captor is no beneficial service to the neutral, inasmuch as the same enemy would be compelled by the tribunals of his own country to make restitution of the property thus unjustly seized" — see Wheaton (8t!l ed. by Dana) , par. 364.

To this general rule, however, an important exception has been made for over a century in the case where the vessel recaptured was practically liable to be confiscated by the enemy, whether rightfully or wrongfully. Lord Stowell explains the foundation of the rule, and the ground of the exception in his judgment in The Sansom [1807]. —The exception has been stated by Lord Stowell in earlier cases, and has been generally recognised since that time .... It appears to me that other circumstances may be conceived as creating other exceptions to the general rule. I only state this lest it might be supposed that the Court would only have regard to the exception above mentioned. But this latter is the only one which need be considered in the present case. Does the general rule or the exceptional rule apply to the facts of this recapture ? . . . . [exposé des faits ; voir § 560] .... The court declines to believe that any promise (to release) was honestly made (by the German cruiser), or was intended to be kept. There had already been threats to sink the ship; and if it had suited those' in charge of the German cruiser, after taking away all the cargo, and after making any further use they wished or could of the vessel and her crew, the ship would have been sunk. As to the rest, the German cruiser never intended to take or send the neutral ship to a German Prize Court for a judicial deterrnination as to whether she ought to be condemned. If otherwise, by some remote fortuity, her case had ever come to be adjudicated upon before such a Court, enough has come to the knowledge of this Court from the cases cited in argument, and from other cases to satisfy the Court that the chances of her owners of obtaining restitution would be as nothing . . . . If the vessel would not have been taken before any

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