commencement of the war, the relevant facts are identical with those in the case of the Gutenfels. This case is governed by the decision in the Gutenfels, and their lordships will humbly advise his Majesty that the same order should be made.

THE DERFFLINGER

This vessel showed by her build that she was intended for conversion into a warship. The Hague Convention therefore does not apply (see Article 5). She passed through the canal, and arrived at Port Said on August 2 on a voyage from Yokohoma to Bremen. Her log contains the following entries:

"1914, August 2: arrived Port Said. The journey cannot be continued on account of the war."

"August 3; passengers and baggage landed."

Under the International Suez Canal Convention of 1889 she was entitled to use the canal for the purposes of passage. She had used it, and the above entries show that her voyage of passage was over; that her journey was, in her view, rendered abortive by reason of the war, and that she had accordingly landed her passengers and cargo. Port Said was, on August 2 and 3, a neutral port. The war which caused the discontinuance of the ship's voyage was the war between Germany and France and that between Germany and Russia. When war broke out on August 4 between Germany and Great Britain the vessel was lying in Port Said, not in exercise of a right of passage, but by way of user of the port as a port of refuge. Under these circumstances the Canal Convention had ceased to be operative and she was not entitled to any protection. The ship was a German ship lying in an enemy port, and was a ship to which the Hague Convention did not apply.

If any justification were necessary for the subsequent acts of the Egyptian and British Governments, it is found in the fact that the ship, while lying in the port, was using her wireless for communicating information to the German warships the Goeben and the Breslau. In their lordships' opinion, the order for her confiscation was right, and this appeal should be dismissed. The order should be varied, however, so as to run "and as such or otherwise subject and liable to confiscation and condemned the said ship as good and lawful prize seized on behalf of the Crown" and in other respects should be in the form of the order under appeal. Their lordships will advise his Majesty accordingly. The appellants will pay the costs of the appeal.

THE PINDOS. THE HELGOLAND. THE ROSTOCK

Judicial Committee of the Privy Council

Decided April 13, 1916

(The Times Law Reports, Vol. 32, p. 489)

The Suez Canal Convention of 1888 is not applicable to ships using Port Said not for the purpose of passage through the canal or as one of its ports of access, but as if it was a neutral port in which to seclude themselves for an indefinite time in order to defeat belligerents' rights of capture, after abandoning any intention there may have been to use the port as a port of access in connection with transit through the canal.

These were appeals from three decrees of his Britannic Majesty's Supreme Court for Egypt in Prize of February 17, 1915.

Lord Sumner in delivering their Lordships' judgment said: These are three appeals from three decrees of his Majesty's Court of Prize in Egypt condemning these vessels as lawful prize. In view of the fact that reliance was placed on immunities alleged to be claimable under international conventions no objection has been raised, such as was raised in The Möwe (31 The Times L. R., 46; [1915] P., 1), to the presence of enemy owners to be heard before their lordships on appeal.

The steamship Pindos is a steamship of 2,933 tons gross, which belonged to the Deutsche Levant Linie, of Hamburg. In the course of a round voyage from Antwerp to eastern Mediterranean ports she entered Port Said at 2 a. m. on August 1, 1914. Her next port would have been on the Syrian coast. Through her agents at Port Said she "received orders not to proceed until further instructions." She discharged her Port Said cargo and continued to lie in her berth. On August 14 the captain was informed by the authorities that he was free to sail and would receive a pass, if he would call for it at the port-office. This he did not do, having been informed by someone, but inaccurately, that the harbor of Port Said had been declared neutral. In fact, by that date Egypt was in a state of hostility de facto to the German Empire. On August 22 a pass for Beirut was actually delivered to him. He says that he doubted its validity-which, in truth, he had no grounds for doingbut, since he was advised by his agents to stay in Port Said as it was a neutral port, his reasons for staying there are clear.

On October 15 he was taken outside the limits of Port Said and of territorial waters in charge of persons appointed for the purpose by the Egyptian authorities, and then was captured by H. M. S. Warrior in latitude 31° 24′ north and longitude 32° 2034' east. Upon these facts a decree of condemnation as prize was pronounced in his Majesty's Supreme Court for Egypt in Prize on February 17, 1915, from which this appeal is brought.

The steamship Helgoland is a steamship of 5,666 tons gross, which belonged to the Norddeutscher Lloyd, of Bremen. On July 29, 1914, she entered the Suez Canal bound with general cargo from Singapore to Rotterdam and Bremen, and reached Port Said on July 30. Her captain had made preparations to continue his voyage and leave Port Said on July 31, but on his arrival he received instructions from his owners to stay there. He recorded in his log on that day "German mobilization," and on August 17 and 18 he paid off a large number of his crew. A pass was offered to him in the same way as to the captain of the Pindos, but he did not avail himself of the offer. Another was actually delivered also as in that case, of which, though it was valid, no use was made. The reason for this again was that the captain, on the same pretext, had definitely decided, in accordance with his owners' instructions, to stay where he was. Subsequently the Helgoland also was taken outside Egyptian territorial waters by persons employed by the Egyptian authorities, and there captured by H. M. S. Warrior on October 15 at about the same place. She was duly condemned as prize on February 17, 1915.

The Rostock was a steamship of 4,957 tons gross, which belonged to the Deutsche-Australische Dampfschiffsgesellschaft, of Hamburg. She came through the Suez Canal from eastern ports with general cargo bound, no doubt, for a home port, and arrived at Port Said on July 31 and began to discharge such part of her cargo as was deliverable there. While doing so her captain received a cablegram from his owners at Hamburg to wait further orders. His log records on August 1: "In order to protect ship and cargo from the attacks of the enemy, shall remain until further notice in Port Said as the harbor is neutral." On August 17 to 19 the ship discharged her cargo of frozen meat. After July 31 the captain received no further communication from his owners. He was treated by the Egyptian authorities in respect of the offer of a pass, the actual delivery of a valid pass subsequently, and the removal of his ship outside Egyptian territorial waters, exactly as the captains

of the Pindos and the Helgoland were treated. He behaved in the same way and for the same reasons. The Rostock was captured by the Warrior on October 15, and was condemned as prize on February 17, 1915.

The claimants in their petitions formally relied on what in each case were substantially the same defences, namely: (1) the benefit of the sixth Hague Convention of 1907, Articles 1 and 2; (2) the benefit of Article 4 of the Suez Canal Convention of 1888, confirmed by Article 6 of the Anglo-French Agreement of 1904; (3) the formal invalidity and the practical inefficiency of the passes which were offered by the Egyptian authorities; (4) considerations of equity and natural justice arising out of the circumstances under which the ships were ejected from Egyptian waters.

Of these points the first has already been dealt with sufficiently by their lordships in the case of The Gutenfels (32 The Times L. R., 433)1 and the third in that of The Concadoro (32 The Times L. R., 465).2 Of the second all that need be said is this: Whatever questions can be raised as to the parties, to and between whom the Suez Canal Convention, 1888 is applicable, and as to the interpretation of its articles, one thing is plain, that the convention is not applicable to ships which are using Port Said not for the purposes of passage through the Suez Canal or as one of its ports of access, but as a neutral port in which to seclude themselves for an indefinite time, in order to defeat belligerents' rights of capture, after abandoning any intention there may ever have been to use the port as a port of access in connection with transit through the canal. Those responsible for the ships took their course deliberately, and took it before August 14. The captains appear, as was only natural, to have consulted together and to have acted in concert. In the case of the Helgoland, her owners in Bremen, doubtless well-informed persons, as early as Thursday, July 30, 1914, if not earlier, were so assured, though no ultimatum had then been issued, that Germany would shortly be at war, and England and Egypt would be neutral, that they ordered her captain to stop in Port Said instead of trying to reach a Turkish, a Greek, an Italian, or an Austrian port. It is no light responsibility to stop a ship of over 5,000 tons with general cargo in mid-voyage for an indefinite period, and thus to imperil insurances alike on ship and cargo, and to incur heavy expenses and probably heavy claims from cargo-owners as well; but this responsibility was taken. Their lordships are of opinion 1 Printed in this JOURNAL, p. 629.

2 Ibid, p. 637.

that the evidence amply justified the decision of the prize court in each case, that the ships were using Port Said simply as a port of refuge, and therefore without any right or privilege arising out of the Suez Canal Convention, 1888. Hence their expulsion by the Egyptian authorities, when it had become plain that they would not leave of themselves, affords no answer to the claim for condemnation in natural justice, or equity, or law. In view of their common election to remain, no distinction can be drawn between the ships which had used the canal and the Pindos, which never meant to use it at all. By August 14 liability to capture and condemnation had accrued in each case, and no circumstance then existing or arising thereafter annulled that liability. The general question of costs has been dealt with in the case of The Zamora (32 The Times L. R., 436).3

Their lordships will humbly advise his Majesty that in each of these three cases the appeal should be dismissed with costs.

The orders should in each case be varied, however, so as to run, "and as such or otherwise subject and liable to confiscation and condemned the said ship as good and lawful prize seized on behalf of the Crown," and in other respects should be in the form of the orders under appeal.

THE CONCADORO

Judicial Committee of the Privy Council

Decided April 14, 1916

(The Times Law Reports, Vol. 32, p. 465)

A pass offered under Art. 1 of the Sixth Hague Convention of 1907 is not invalidated by its being offered on manifestly reasonable conditions.

In Art. 2 of the same convention the expression "force majeure," with regard to the inability of a vessel to leave an enemy port within the days of grace, refers to something which renders the vessel unable to leave the port, and it does not include the circumstance that the master has not been provided by the owners with sufficient financial resources to continue his voyage.

This was an appeal from a judgment of the Supreme Court for Egypt in Prize of March 23, 1915.

Lord Parmoor, in delivering their lordships' judgment, said:-The steamship Concadoro is an Austrian vessel (1,813 tons gross and 1,198

3 This JOURNAL for April, 1916, p. 422.