GOODS CONSIGNED TO GERMAN GOVERNMENT LANDED FOR TRANS-SHIPMENT PRIOR TO HOSTILITIES: WHETHER SEIZURE ON LAND WAS LAWFUL: RIGHTS OF SUCCESSION UNDER MILITARY OCCUPATION
The question has been referred by the Secretary to the Department of Defence for advice on the points raised in a memorandum dated 31 July 1918 of the British Administrator of the Colony of German New Guinea, with reference to certain hospital and postal goods which had been consigned to the German Government at Rabaul, and had, prior to the outbreak of war, been landed at Hong Kong, ex steamships G&ttingen and Yorck for trans-shipment to Rabaul. These goods were seized on land, and sold under an order of the Prize Court at Hong Kong. The Administrator claims-
- That the goods having been landed at Hong Kong for trans-shipment prior to the war, and having been seized on land, are not lawful prize.
- That the British Administration of the Colony of German New Guinea, as successors of the German Government, was entitled to the goods, and is entitled to the proceeds derived from their sale.
- As regards this claim, it cannot be upheld in the face of recent Prize Court decisions, viz.: Ten Bales of Silk at Port Said 2 Br. & Col. Pr. Cas. 247; The Batavier II & VI 2 Br. & Col. Pr. Cas. 432; The Eden Hall 2 Br. & Col. Pr. Cas. 84; The Achaia (No. 2) 1 Br. & Col. Pr. Cas. 635; The Roumanian 1 Br. & Col. Pr. Cas. 75 and 536.
- As regards this claim, I think it is pushing the idea of succession further than can be warranted, and it implies a limitation on the right of capture as maritime prize for which there is no authority. A distinction must be drawn between military occupation and annexation or cession. In occupation, the rights of the conqueror extend over what he can lay his armed hand upon, but as regards incorporeal rights to things outside or to sums of money-
It is only therefore when a belligerent is entitled to stand in the place of his enemy for all purposes, that is to say, it is only when complete conquest has been made and the identity of the conquered state has been lost in that of the victor, that the latter can stand in its place as a creditor, and gather in the debts which are owing to it. (Hall, International Law, 6th edn, p. 415; Halleck's International Law, 4th edn, Vol. II, p. 494 et seq.)
The goods in question were not in the conquered territory. It does not appear whether the property in them had passed to the consignee, nor does it appear when they were seized. But they were properly the subject of maritime prize, and the property in them vested in the state to which the captor belonged as soon as an effectual seizure was made (Hall, International Law, 6th edn, pp. 451-2).
In my opinion, therefore, neither claim is well founded.
[Vol. 16, p. 22]