Greece (Karavias) v German Federal Republic [Arbitral Commission on Property, Rights and Interests in Germany, Second Chamber.]

CourtObsolete Court (Germany)
Date28 Junio 1960
Arbitral Commission on Property, Rights and Interests in Germany, Second Chamber.

(Sauser-Hall, Vice-President; Schwandt, Kokinopoulos.)

Kingdom of Greece (on Behalf of Karavias)
and
Federal Republic of Germany.

Arbitration Procedure Competence Competence to review decisions of municipal organs Arbitral Commission on Property, Rights and Interests in Germany.

Warfare at sea Capture Of enemy merchant vessel Whether can be assimilated to removal of property from occupied territory.

Treaties Special kinds of Treaties of peace Analogous instruments Convention on Settlement of Matters Arising out of the War and the Occupation, 19521954 Restitution Action for compensation for non-executed restitution Vessel declared lawful prize Whether subject to restitution.

The Facts (as stated by the Commission).(1) On August 22, 1957, the complainant Government (respectively the Greek ship-owner Emmanuel Karavias) instituted before the Arbitral Commission an action against the defendant for revision of the decision of the Bundesamt fr ussere Restitutionen [Federal Office for External Restitution] (called Bundesamt) of July 27, 1957, served upon it on July 29, 1957, concerning payment of compensation for restitution, which failed, of the steamship S/S Marietta Nomikos, and for revision of the judgment of the German Higher Prize Court, Berlin, of April 7, 1941 (file OPH/E/5/40).

A. The facts.(2) The facts underlying this claim are the following:

The Greek steamship S/S Marietta Nomikos, which was going from Stockholm to Alexandria in Egypt with a load of timber, was held up in the night of October 25/26, 1939, on the open sea, in the Baltic, by the German navy in the exercise of the right of visit recognised by the international law of war, and was conducted to the German port of Pillau on the Baltic Sea, where it was sequestrated and placed under German command on October 29, 1939.

(3) By judgment of February 16, 1940, the Hamburg Prize Court decreed the liberation of the steamship on the ground that its cargo did not constitute war contraband and that its place of destination was not in enemy country, Greece being at that time still a neutral country and Egypt, although it had broken off its diplomatic relations with Germany, not being at war with this country.

An appeal having been lodged against this decision, the steamship was not immediately liberated and the Higher Prize Court at Berlin, by judgment of April 7, 1941, rendered after the commencement of the war between Greece and Germany, finally decreed the capture of the steamship and its cargo for the benefit of the German Reich (file OPH/E/5/40), so that the S/S Marietta Nomikos remained in the possession of Germany; it sailed under the German flag, henceforth bore the name of Drau, and was sold by the Reich to Ludwig Mller, probably of the shipping-firm of Leth & Co. at Hamburg, on January 31, 1945.

After the capitulation of the German army and navy in 1945, the British Occupation Power sequestrated the steamship which, by order of the Naval Control Service, Flensburg, put out to sea on October 11, 1948, and was sunk, with a load of ammunition, in the North Sea; it is no longer possible today to determine the place and date of this action.

(4) In its request of November 4, 1955, to the Bundesamt, the complainant Government declared to make the request addressed to this Office on November 1, 1955, by [counsel] Dr. Constant, Hamburg, on behalf of the ship-owner Emmanuel Karavias, its own; relying on Articles 3 and 4 of Chapter Five of the Settlement Convention, it claimed restitution and, possibly, compensation for frustrated restitution of the steamship in question.

By decision of July 27, 1957, the Bundesamt rejected the application which had thus been submitted to it by the Hellenic Government and on the following July 29 only served it upon the Royal Greek Embassy, but not on the ship-owner Karavias, who was not considered a party to the...

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