It is an infrequent and rare thing that judgments are handed down by the Maritime Court (the reference for this newsletter has counted 5 since the beginning of 2014). Therefore, when an issue under naval prize law - which has never been discussed in Israel since the establishment of the State - reaches the doors of the Supreme Court, this is a development which is no less fundamental for the general maritime community in Israel, than for the legal maritime community in particular.
According to our summary in a previous newsletter, which addressed the judgment handed down by the Haifa Maritime Court in the matter of HMC (Haifa) 26861-08-13 The State of Israel v The Vessel Estelle, the facts of the matter were pretty simple: the Vessel 'Estelle', carrying the Finnish flag, left a Turkish port on its way to Gaza in what was defined as a humanitarian flotilla, while attempting to break through the maritime blockade which the State of Israel had at that time imposed on the maritime area close to the Gaza Strip. By contrast with the incidents, which came both before and after the 'Estelle' incident (the most famous of which being the 'Mavi Marmara') where vessels were arrested and then released at the end (after being checked at Israeli ports and after transfer of equipment, in some cases, to the Gaza Strip via overland crossings), the vessel 'Estelle' was captured by Israel, towed to Ashdod port and then transferred to Haifa port where she is still located.
In August 2013, some 10 months after being captured, the State of Israel filed an application for the confiscation of the vessel with the Maritime Court in Haifa. The judgment, given by His Honour Judge Ron Sokol, decided that maritime law requires that the court should be applied to shortly after the arrest of the vessel, and that the delay of 10 months – which is not reasonable - defeats the application for confiscation and therefore the vessel should be released immediately.
The State of Israel filed an appeal with the Supreme Court against the decision of the Haifa Maritime Court and so the Supreme Court – as noted above – was required to address the question of naval prize law for the first time.
The judgment of His Honour Judge Sokol, at the first instance court, includes a detailed review of the prize jurisdiction of the Israeli maritime court, pursuant to the Naval Prize Act from 1864 (on which we wrote in our previous newsletter). However, the Supreme Court was not required to and did not discuss in depth the question of this jurisdiction. Rather it focused its attention on the question of the lengthy delay which had elapsed before the State's application, and so approved the judgement of His Honour Judge Sokol while making a few interesting comments on the law of naval prize, which are summarized below.
The capture of vessels, including 'neutral' ones, during war is an historical State practice. It is carried out for many reasons - in order to decrease an enemy's power, to prevent the breach of a sea blockade, to prevent trade with the enemy and others. Over time naval prize laws developed with the aim of protecting those who were likely to be harmed as a result of the capture of the vessel: such as the owners, the employees and third parties. In the majority of countries special courts were established to handle these subjects (Prize Courts).
Within the framework of the naval prize laws, a procedure has been developed for the carrying out of a naval prize. This commences with the physical capture of the vessel at sea, at which point - in effect - the jurisdiction of the Prize court kicks in, and continues afterwards with the adjudication procedure for the prize: bringing the vessel to the port of the said State and handing it over to the relevant authorities, transferring the vessel's documents to the court of competent jurisdiction and the hearing before the Prize court on the State's claim to take the vessel as a prize and the issue of a Prize writ (should the State's claim be acceded to). So the prize is subject to a judicial determination.
The Supreme Court found that the State, once it had decided to confiscate the vessel as prize, was obliged to bring the vessel before the court at the earliest opportunity. A reasonable period for this purpose could be a few days or even a number of weeks from the time the vessel was captured and it was also found that an unreasonable delay in taking prize proceedings was likely to give the vessel a right to compensation.
The State (the appellant in the Estelle case) had raised a number of pleas: firstly, that from the moment that the vessel was captured, it had discretion whether to seize it as prize or to release it, and only if it decided to seize it as prize, it was required to take proceedings under naval prize law. This plea was accepted by the Supreme Court and it was even decided that the State is obliged to exercise its discretion on this matter. Secondly, it was argued that the State is not required to bring the captured vessel before the Prize court immediately, but only during a reasonable period of time. Thirdly, it argued that the reasonableness of the period of time would be determined according to the circumstances of the matter and it is likely to be as long as 10 months such as in the case before the court (the Estelle case). Fourthly, it was argued that even if there was an unreasonable delay in taking prize proceedings, in any event the vessel should be treated as prize where there is a cause of action for prize. These last three claims of the State were rejected by the Supreme Court.
The State's claim that even if there is a material and unreasonable delay in taking prize proceedings nevertheless the prize could be approved and the vessel was taken for prize where there is a cause of action for prize was – as noted – rejected. The existence of a cause of action for prize does not bring about an automatic approval of the capture of a neutral vessel as prize. Rather all the claims of the owner of the vessel against the capture need to be heard first. Only in the event that the owner of the vessel has no such arguments or in the event that such arguments are rejected, will the court order the prize.
The considerations which the State took into account, in the Estelle case, were 'external' considerations to the prize proceedings such as those concerning security and the foreign relations of Israel – these are appropriate in supporting general policies by contrast with those to be taken into account for determining whether to take prize proceedings against a specific vessel. In the latter case, it is necessary to weigh up considerations which are 'internal' to the proceedings, such as those related to the specific vessel.
The judgment was written by the Her Honour, The President of the Supreme Court, Justice Miriam Naor, with the agreement of His Honour Justice Salim Joubran and His Honour Justice Hanan Melcer.
It is worth noting certain comments of His Honour Justice Hanan Melcer, albeit that they are obiter dicta and do not form part of the ratio of the decision. His Honour Justice Hanan Melcer chose to consider the question of the jurisdiction of the maritime court over issues of prize, and in doing so reviewed this jurisdiction in light of the King's Order in Council 1937 for Palestine with respect jurisdiction over admiralty matters, pursuant to which the Supreme Court was constituted as an admiralty court. He also relied on the Admiralty Court Law, 1952, which transferred the jurisdiction of the Supreme Court as a maritime court to the District Court in Haifa. According to His Honour Justice Hanan Melcer, the Supreme Court (under the Mandate and afterwards as the Supreme Court of Israel and also the Haifa Maritime court to which maritime jurisdiction was transferred) received express authority to act as a prize court under the King's Order in Council and according to the Prize Act from 1939. In this way, His Honour Justice Hanan Melcer brought an end to the dispute waged in articles commenting on judgments concerning the jurisdiction of the Maritime Court, and decided in favour of the jurisdiction of the Maritime Court to hear matters of prize.
Reference: CA 7307/14 The State of Israel v The Vessel Estelle (given on 7.8.2016)