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Judicial Committee of the Privy Council 
(Lord Sumner, Lord Parmoor, and Lord Wrenbury) 

Decided December 13, 1918 

This was an appeal and cross-appeal from a judgment of the 
Supreme Court for Egypt in Prize, by which certain tugs, motor- 
boats, lighters, and other craft, the property of the Deutche Kohlen 
Company, were declared to have belonged at the time of seizure to 
enemies of the Crown, and to have been properly seized as good and 
lawful prize, and they were directed to be detained until further 
orders. The Crown appealed from so much of the judgment as 
ordered that the craft should be detained only, and claimed that 
they should be condemned and confiscated. The company cross- 
appealed, and submitted that the craft were liable neither to con- 
demnation nor detention. 

The Solicitor-General and Mr. Gavin Simonds appeared for the 
Crown; Sir Erie Eichards, K. C, and Mr. Balloch for the company. 

The Deutsche Kohlen Company, of Hamburg, had a branch at 
Port Said, where it supplied coal to passing steamers. It owned 
and used a number of tugs, motor-boats, and lighters, none of which 
was registered in the German Mercantile Marine. After the outbreak 
of war it carried on its operations under a limited license granted by 
the Egyptian Government, but ultimately the business was wound 
up and liquidated, and the company's craft requisitioned and used 
by the British authorities. The crown claimed the condemnation 
of the craft as belonging to enemies. Judge Grain rejected the 
company's contention that the craft were exempt from capture under 

i Tlie Times Law Reports, Vol. XXXV, p. 159. 



Article 3 of the Eleventh Hague Convention, as being "vessels em- 
ployed exclusively in coast fisheries, or small boats engaged in local 
trade." But he held, contrary to the submission of the Crown, that 
the craft were "merchant ships" within the meaning of Article 2 
of the Sixth Hague Convention, and were liable only to be detained, 
not to be condemned or confiscated. From these decisions both parties 

The arguments were originally heard in February last, but were 
broken off to enable the Crown to procure from Egypt certain cor- 
respondence bearing on the question whether there had been any 
seizure of the craft. 

The Solicitor-General said that there had been no formal seizure, 
as any such act would have been a breach of the Suez Canal Con- 
vention, but he submitted that the steps taken by the authorities 
amounted to seizure in law. The possession of the craft by the naval 
and military forces was tantamount to seizure. 

Sir Erie Richards, K. C, contended that the evidence from 
Egypt showed that there had been no capture, and therefore the 
court had no jurisdiction, for it was necessary to have capture as a 
basis of the proceedings. The craft were merchant ships, which were 
not liable to seizure, and, besides, they had been working under a 
license from the Egyptian Government, and could not therefore be 
seized. They were also protected from seizure by the Suez Canal 

Lord Sumner, in delivering their Lordships' considered judgment, 
said: The Vice-Admiralty Court at Alexandria decided this case on 
the application of The Hague Conventions, numbers VI (Arts. 1 and 
2) and XI (Article 3). The learned judge held that the craft were 
not immune from seizure, but only made a detention order against 
them. Accordingly there are cross-appeals. One party claims con- 
demnation, the other immediate release. Each prepared his case on 
the assumption that there had been a valid seizure and only sought 
to inquire, which convention, if either, applied, for if neither was 
applicable, condemnation followed. During the hearing it appeared 
that the record contained no account of the circumstances of the 
seizure, nor indeed expressly alleged any seizure at all, and although 
it might have been enough to have relied upon the recital in the 
decree under review, that the various craft were "lawfully seized 
as good and lawful prize," on such a point their Lordships were 


reluctant to refuse examination into the facts, when a doubt was 
brought to their notice. Accordingly they directed that further in- 
formation should be obtained from Egypt. The material now forth- 
coming is neither as explicit nor as simple as might have been ex- 
pected. Before the war the business of the Deutsche Kohlen Depot 
Gesellschaft in Egypt was to coal steamers passing through the Suez 
Canal. They owned a large fleet of lighters with the tugs required 
to tow them. Most of them were of steel, but a few were of wood. 
Four were water tank boats and the rest chiefly coal barges. There 
were also for general communication between ship and shore and 
for harbor business three fast launches. The tugs were about 57 by 
14 feet; their tonnage was about 27 tons, and their engines must 
have been of high power. The lighters, 77 in number, ranged from 
82 by 20 feet to 46 by 10 feet. Their average tonnage was nearly 
130 tons. Where they were built is not stated, though it is reason- 
able to suppose that all of them, except perhaps the wooden barges, 
had come out from Germany, but whether afloat or not is unknown. 
The tugs were capable of open sea voyages, but in fact they were 
only employed in Port Said harbor. The lighters were incapable 
of taking the open sea. When war broke out the company's business 
was for some time allowed to proceed as before. About the end of 
1914 some of the lighters were requisitioned, and in October, 1915, a 
license was granted to the company to continue supplying the rest 
to the British Coaling Company (Limited). At the end of April, 
1916, this license was revoked, and an official was appointed by the 
General Officer Commanding in Egypt as receiver of the business, 
"with instructions to liquidate the same. " He is styled the liquidator, 
and, in the name of the Deutsche Kohlen Depot Gesellschaft, is re- 
spondent to this appeal. The proclamation under which he was ap- 
pointed appeared in the Journal Officiel Extraordinaire of January 
25, 1915, and provided that "every receiver shall have such powers 
as shall be prescribed in his instructions for managing the property 
entrusted to him," but he appears to have been simply placed under 
the control of the licensing officer, to whose order he was bound to 
conform. His position was very different from that of a liquidator 
appointed in legal proceedings. His principal function appears to 
have been to hold possession of such of the craft as were not from 
time to time in the use and possession of the naval and military 
authorities, and with them to supply the requirements of the British 


Coaling Company (Limited). Though variously employed and in 
various places the several craft have throughout been treated as one 
coaling fleet and as an installation for a single business, physically 
divisible into units, but managed as a whole. 

During the early part of the war the Procurator-General, the 
present appellant, had been fully occupied in taking proceedings 
against ships and cargoes in the court of Alexandria, but in the 
spring of 1916 he decided to seek the condemnation of the fleet of 
the Deutsche Kohlen Depot Gesellschaft. He did not wish actually 
to lay hands on the individual units. They were numerous; they 
often had no one on board, some were here, some there ; most of them 
were no doubt in the harbors of Port Sa'id or Suez, but some were up 
the Canal and all were being usefully and indispensably employed 
for military, naval, or commercial purposes. He had also to con- 
sider, no doubt, the terms of the Suez Canal Conventions, since the 
course pursued in the case of The Pindos (32 The Times L. R., 489; 
[1916] 2 A. C, 193) was inapplicable to a fleet of such a size and 
character. Such of the craft as were not already in the hands of 
the naval and military authorities were in the possession of the 
liquidator, though physically scattered up and down. In May, 1916, 
he instructed the marshal of the Prize Court to report to him on 
the company's floating craft, and he asked the liquidator to furnish a 
list of them in June. In July he saw the liquidator and intimated, 
to quote his affidavit : 

That I proposed to take proceedings against the craft, and owing to the 
difficulty in serving on the particular craft, I would ask for an order for 
substituted service on him. It was then agreed between us that, as liquidator, 
he should, on proceedings being taken, continue to hold such of the tugs and 
lighters as were in his possession at the disposal of the Crown and the Prize 
Court. I also arranged with Mr. Bristow, manager of the British Coaling 
Dep6ts, and with Mr. Lloyd Jones that the manipulation contract, which was 
being carried on by the liquidator, should continue to be so carried on as be- 
tween the Crown and the Coaling Depots. 

He further informed the licensing officer what he desired to do, 
and with him "came to an understanding that the liquidator should 
hold the craft and continue to act on behalf of the Crown from the 
time the proceedings were instituted against the craft." 

What, then, is the fair conclusion from all this? It is clear that 
the Procurator-General meant to bring this fleet before the Prize 


Court with a view to its condemnation, and his general intention 
must have been to do whatever was necessary to give the court juris- 
diction. He desired to avoid taking physical possession of the craft 
seriatim, yet he equally desired that all should be validly seized. 
The liquidator, Mr. Lloyd Jones, had them under his control, and 
those which were not already in the hands of the naval and military 
officers of the Crown were being used by Mr. Bristow, above men- 
tioned. The liquidator does not contradict the Procurator's evidence, 
and in prosecuting his cross-appeal did not question that the Vice- 
Admiralty Court had jurisdiction. 

Their Lordships take the possession respectively of the naval and 
military authorities and of the liquidator to have been, by agreement, 
the possession of the marshal of the Prize Court until proceedings 
were taken, and thereafter to have been "continued" on behalf of 
the court, the actual requirements of the forces and of the British 
Coaling Company being satisfied in the meantime and till further 
order. It is as though the Procurator had pointed to the fleet, 
assembled in the harbor under the liquidator's eyes, and had said, 
"Submit to treat this fleet as seized and undertake to do with the 
vessels as the court and its marshal may direct, or I will at once use 
force, which I have at hand." 

Their Lordships do not overlook the fact that both the Procurator 
and the liquidator elsewhere seem to suggest that the question was 
rather one of service of proceedings in rem than of capture, for they 
give August 8, 1916, as the date of the seizure, which was actually 
the date when substituted service was effected on the liquidator. The 
liquidator, however, was chiefly concerned with his disbursements, 
and it was in this connection that the date of seizure was given to 
and accepted by the court as August 8th in an interlocutory applica- 
tion. Their Lordships do not think this sufficient to negative the 
inference to be drawn from the procurator's account of his agreement 
with the liquidator, and as their Lordships are not asked to suppose 
that the Procurator completely overlooked the importance of seizure, 
they conclude that a sufficient seizure having been arranged by con- 
sent, the matter subsequently received no further attention. 

This view of the facts disposes of two other matters. In spite of 
a general statement, made on the application for leave to effect 
substituted service, that the craft to the number of eighty-five were 
in various places along the canal and constantly changing their 


position, no evidence is forthcoming to enable any one lighter to be 
discriminated from the rest, and the coal barges must for the most 
part have been kept in the harbors of Port Sa'id and Suez. Sir Erie 
Richards for the liquidator stated to their Lordships that on the 
present materials he could not ask for a decision, that the craft were 
seized in inland waters, and were not the subjects of maritime prize 
at all, and, indeed, such a contention would have precluded the 
liquidator from obtaining a judicial decision on the effect of the 
Hague Convention, which is the true issue in the case and in strict- 
ness the only issue, which can be presented as of right in the interests 
of an enemy company. As no point of this kind was made at the 
hearing, their Lordships will deal with the whole fleet as having been 
enemy property seized in port, and as such liable to be condemned 
in a court of prize. 

The liquidator further contended that the seizure was bad as 
being a breach of the Suez Canal Convention, 1888, Article IV. It 
does not, however, follow that a seizure, otherwise good, must be 
invalid for all purposes merely because it contravenes some term in 
an international instrument cognizable in a prize court. 

It is legitimate to consider the object with which the convention 
was entered into, the scope of its provisions, and the mischief which 
it was intended to prevent. As was pointed out in the Sudmark 
(34 The Times L. B., 289; [1917] A. C, at p. 623), this convention 
does not stipulate any penalty for its infraction, and a court of 
prize is not warranted in creating a penalty where the convention 
creates none, or in declaring a seizure to be had because in no other 
form could it effectively create a penalty at all. Again, their Lord- 
ships cannot forget that, long before the seizure in the present case, 
the Canal generally had been made a field of battle by the armies of 
the Sublime Porte, acting in alliance with those of the German Em- 
peror, and for want of mutuality alone the convention could not be 
used to protect the property of an enemy whose sovereign had already 
fundamentally disregarded it. There is, however, on the facts a 
simpler means of disposing of the point under the terms of Article 
IV., "Aucun droit de guerre ne pourra etre exerce dans le canal et 
dans ses ports d'acces." In the present case the exercise of any 
right of war in the Canal was carefully avoided. "What was done, 
though constituting a seizure for the purposes of prize jurisdiction, 
was done ashore by word of mouth, and involved no belligerent con- 


duct in the Canal or its ports of access contrary to the convention. 
The de facto tranquillity, which in the interest of neutrals the con- 
vention secures, was fully respected. The interests of neutrals do not 
demand that acts done in Egyptian territory which do not affect the 
Canal or its ports of access should be invalidated on the mere ground 
that they took place in its neighborhood. 

To turn to The Hague Conventions, can these tugs and lighters 
be covered by the words of Convention XI, "Bateaux exclusivement 
affect es a des services de petite navigation locale?" For some reason, 
which is not apparent, the French text makes the element of size a 
quality of the service in which the craft are engaged ; in the English 
it is a quality of the craft themselves. In the present case it is 
difficult to describe either the craft or the navigation in which they 
engage as small. As applied to the navigation the words evidently 
predicate of it a petty, local character. These craft are an integral 
and indispensable adjunct of most important ocean voyages, and 
without them voyages through the Suez Canal would be impracticable. 
Their service is the reverse of petty or local. Nor are the craft 
themselves truly small. The tugs must be of high power, and their 
mere tonnage and dimensions are therefore not decisive. Few of the 
barges are even of modest size; none is insignificant, and most of 
them are of ample burden. Their Lordships are satisfied that, what- 
ever be the precise limits of this article, it was never contemplated 
that such craft as these should fall within them, and they think the 
same of the argument that they can be assimilated to fishing boats, 
so as to entitle them to the tenderness which has often been extended 
to fisherman under international law. 

The application of the Eleventh Convention does not depend 
merely on the question whether these craft can or cannot be styled 
"navires de commerce" with tolerable propriety. The construction 
of the article which would bring under that term all floating struc- 
tures not "navires d'etat" was rejected by their Lordships in The 
Germania (33 The Times L. B., 273; [1917] A. C, at p. 378, and in 
delivering the opinion of the Board, Lord Parmoor observed at p. 
378), "There is nothing in the context of Article 2 which would 
suggest that the expression, 'un navire de commerce' includes every 
class of private vessel." It would be a mistake to seek in the Hague 
Conventions, or in the terms there employed, exhaustive categories of 
every kind of batiment afloat, or to suppose that, taken collectively, 


the bateaux, batiments and navires there mentioned cover the whole 
field of possible means of carriage by water so as to make provision 
somewhere or other for each and all of them. Conventions con- 
cluded between nations so diversely interested rest principally on 
compromise, and cannot be expected to exhibit the comprehensive- 
ness of a code. 

The language of the general preamble to the article is of im- 
portance, but the actual text must come first. The articles contem- 
plate ships — navires de commerce — which in the course of a voyage 
from a port of departure or to a port of destination enter a port 
and there find themselves entangled in hostilities of which they were 
unaware, or ships also commercially engaged upon a voyage, finding 
themselves in a port, whether of loading, of call, or of discharge, 
which by the outbreak of war becomes an enemy port, and they 
provide days of grace, in order that such ships may have their chance 
to go in peace, and deal specifically with the case in which force 
majeure prevents them from availing themselves of this opportunity. 
The picture so drawn is plain, and, if there are vessels entitled to 
the designation of navires de commerce which lie outside this picture, 
then the scope of the article affords them no assistance, be their 
designation on their classification what it will. Neither collectively 
nor individually was the fleet of the Deutsche Kohlen Depot engaged 
in or between ports of departure and discharge. It did not find 
itself in Port Said in the course of a voyage. Port Said was its 
home, nor had it any other. No force majeure affected it. In point 
of fact, after the outbreak of war it went on with its regular em- 
ployment in its permanent home as before, and no opportunity for 
departure was desired, for there was neither the intention nor the 
means for taking it elsewhere. This fleet was the very opposite of 
the navires de commerce referred to, and was as fixed in its habitat 
and in its orbit as trains of coal trucks from which steamers take 
their coal under a tip. If so, it is unnecessary to express an opinion 
whether the craft could be called navires, and, if so, whether they 
were also navires de commerce. To them Convention XI had no 
application at all. 

In the alternative, but only in the alternative, the question arises 
whether any benefit could be claimed under the convention for craft 
which did not avail themselves of the days of grace and were not 
prevented by force majeure from doing so. The "Decision" of the 


Egyptian Government, dated August 5, 1914, gave permission to 
German ships, which found themselves in Egyptian ports at the out- 
break of hostilities, to quit the port up to sunset of August 14. Let 
it be that some of these craft could not go, because they were not 
built for sea, though no doubt with some alterations they could have 
been made fairly seaworthy; let it be that none of the members of 
the fleet had any business or .occupation elsewhere. This does not 
secure to them the benefit of the convention without complying with 
its terms: it is only ground for saying that they are not within the 
scope of the convention at all. They remained in the port and con- 
tinued their usual employment and took the risk involved in the 
fact that by Article XIII of the same Decision "les forces navales et 
militaires de Sa Majeste Britannique pourront exercer tout droit de 
guerre" in Egyptian waters, apart of course from the terms of the 
Suez Canal Convention. Eemaining where they were conferred on 
them no irrevocable permission to stay and trade, no permanent 
immunity from the belligerent rights of the Crown. Later on a 
license was applied for and obtained, but before seizure that license 
had been duly revoked. Thereafter at any rate the liquidator could 
not invoke for their protection the principle that "When persons are 
allowed to remain either for a specified time after the commencement 
of war or during good behaviour they are exonerated from the dis- 
abilities of enemies for such time as they in fact stay," Princess 
Thurn and Taxis v. Moffit (31 The Times L. R., 24; [1915] 1 Ch., at 
p. 61), even if such a principle is applicable to personal property 
only, when no enemy person is actually present or in charge of it. 

In the result the appeal succeeds and should be allowed, and the 
cross-appeal fails and should be dismissed, in each case with costs. 
The decree of condemnation must be amended by omitting the words 
"and that the said tugs, lighters, motor-boats, and floating craft be 
detained until further order of the court," as well as the subsequent 
words "and detention," and the subjects seized must be forthwith 
condemned and confiscated. 

Their Lordships will humbly advise his Majesty accordingly.