CHAPTER V 
RIGHT OF CAPTURE IN MARITIME WAR 
WEN RicHT oF CAPTURE AND CONDEMNATION MAY BE 
EXERCISED 
Sec. 139. Right of Capture Exists Only During State of 
War. The right of capture can, of course, be legally exercised 
in respect to enemy property only when the captor State is ac- 
tually in a state of war with the power whose vessels or other 
property are the object of seizure. Whether such a state of war 
exists is a matter for the political department of the government 
to determine and does not fall within the jurisdiction of the 
Prize Court; but if the former recognizes the existence of war, the 
Prize Court is bound by a declaration to that effect.' 
Sec. 140. Effect of Armistices and Treaties of Peace. In 
the absence of treaty stipulations to the contrary captures made 
after the conclusion of peace are null and void. The right of 
capture may be, and usually is, suspended by the conclusion of an 
armistice.2 The armistice concluded on November 11, 1918, be- 
tween the delegates of Germany and Marshal Foch, representing 
the allied and associated Powers, provided for an immediate 
cessation of hostilities at sea. but it expressly declared that the 
1 Qee the decision of the Roumanian Prize Court in the case of the Nicolae, 
a Bolshevist motor boat captured by a Roumanian war vessel in the Black 
Sea on July 2, 1919, cited by Verzijl, op. cit., Sec. 132; also the decision 
of the French Prize Council condemning two Russian tugs flying the Red 
flag, captured in May, 1919, by the naval forces of France between whom 
and the Russian Bolshevists the French government recognized a state of 
war. The Volea (or Volia) and the Chalutier No. 20 (28 Rev. Gén., 1920, 
Jurispr., p. 10). As to whether Albania and Egypt were neutral states see 
Sec. 174 infra. In various other cases Prize Courts were called upon to 
decide whether a state of war existed in fact at the time particular captures 
were made. See, among others, the Austro-Hungarian cases of the Mukhbir- 
i-Siirur, the Halil and the Fiore Albania; the Belgian cases of the Hlbing 
and others, the Feronia, the Zora and various others and the French cases 
of the Mahrousseh, the Kassed Kerim and others. 
3The Italian prize regulations of 1917 (Art. 6) direct that vessels cap- 
tured after suspension of hostilities shall be released even when the master 
of the vessel making the capture is ignorant of the suspension. 
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