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Israel: Supreme Court Orders Release of Ship Captured Attempting to Break Gaza Blockade

(Aug. 10, 2016) On August 8, 2016, the Supreme Court of Israel rejected an appeal by the state against the Haifa District Court’s decision not to allow confiscation of the ship Estelle. Instead, the Court ordered the release of the ship to its owners.  (CA7307/14 State of Israel v. the Ship Estelle (Aug. 8, 2016), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew).) 

Facts of the Case

According to the Supreme Court President Miriam Naor, “[s]ince Israel’s disengagement – following which Israel’s effective control over the Gaza Strip ceased … there were several attempts by foreign ships to reach the strip … .” (Id. ¶ 1.)  These attempts continued despite the issuance of an advisory notice on August 11, 2008, informing crew members that Israel’s navy was operating along the Gaza Strip shore and requesting foreign ships not to enter the area.  As attempts by foreign ships to reach the Gaza Strip continued, a maritime blockade was imposed during the “Cast Lead” military operation.  On January 3, 2009, Israel declared a maritime blockade and prohibited the entry of ships into an area extending 20 nautical miles from the shore.  (Id.)

The Estelle left Finland on May 28, 2012, heading to the Gaza Strip. Despite repeated warnings, it was continuing to approach the blockade area when it was stopped by the Israeli Navy.  The ship was brought to the Israeli port of Ashdod; its crew and passengers were removed, interrogated, and then deported.  After being checked, the ship’s cargo, designated under the cargo manifest as humanitarian aid, was transferred to the Gaza Strip through a land crossing.  The ship was then transferred to the Israeli port of Haifa.  (Id. ¶ 2.)  On August 15, 2013, about ten months after the ship had been impounded, the state filed a request to order the ship’s confiscation in accordance with the Naval Prize Act 1864. (Id. ¶ 3.)

Summary of the District Court’s Decision

The district court rejected the claim by the shipowners that the court lacked authority to adjudicate naval prize matters. Such authority, the court recognized, was based on the British Naval Prize Act 1864, as amended in 1939 to apply also to territories under the British mandate. A special provision authorized the then Palestine Supreme Court to adjudicate naval prize suits, following a declaration of war that was then published in the Palestine Official Gazette of 1939.  The court held that the eruption of war between Britain and Germany and its allies in 1939 was in itself sufficient evidence that there was a state of war, giving the Palestine Supreme Court the authorization to adjudicate matters of naval prizes.  (Id. ¶ 6.)

All the powers granted to the British Crown, including that of declaring war, the district court further determined, were transferred to the State of Israel upon its establishment. The existence of a state of war, or at least an armed confrontation, between Israel and the residents of the Gaza Strip, is not under dispute. Following the enactment of the Maritime Court Law, 5712-1952, the Supreme Court’s adjudicative powers in maritime affairs were transferred to the Haifa District Court when it sits as a maritime court. These include adjudicating naval prize matters. (Id.; Maritime Court Law, 5712-1952, SEFER HAHUKIM [BOOK OF LAWS, the official gazette] 5712 No. 97 p. 232 (in Hebrew).)

While rejecting the shipowners’ arguments against the district court’s jurisdiction, the court accepted their claim that the state had not complied with the procedural requirements under the Naval Prize Act. Accordingly “the ship and its documents should have been brought to the naval prize court ‘forthwith’ and ‘with all practicable speed’ for adjudication.  (CA7307/14 State of Israel v. the Ship Estelle, ¶ 8.)  The district court emphasized that

[t]he need for a judicial determination does not depend on the will of the impounding state or on a request by the ship owner; the legitimacy of the impounding depends on a judicial confirmation. The impounding state must, soon after impounding the ship and transferring it to a port under the state’s control, request and receive authorization for the impounding from the court of naval prizes. (Id.)

Under the circumstances of the case, the district court held, the long delay in filing with the court in itself justified the release of the ship, even in the absence of an express provision to this effect. (Id. ¶ 9.)

The Supreme Court Decision  

  1. General Rules on Adjudication of Naval Prize

Having reviewed extensive case law and literature on international maritime law, Court President Naor, who wrote the main decision, concluded that there was a consensus that ownership of a ship can only be transferred to the capturing state upon judicial authorization. (Id. ¶ 20). Furthermore, the time in which the state must request adjudication must be reasonable to allow it to collect evidence and hear the shipowners’ arguments before determining whether to start prize procedures. A review of multiple foreign court decisions indicates that ships impounded under their specific  circumstances were usually released within a few weeks. (Id. ¶ 36.)

Unusual circumstances, Naor opined, might justify a more significant delay in release of ships when it has been decided that prize procedures will not be pursued. Examples of such circumstances include an unusual security situation that does not allow for the release of ships or a need to rescue ships at the bottom of the sea.  (Id. ¶ 37.)

Naor concluded that a state that impounds a ship must begin prize procedures within a reasonable time, which in most cases may extend from several days to several weeks following capture. An unreasonable delay in engaging in legal proceedings, she stated, might entitle the shipowners to compensation.  (Id. ¶ 42.) Release of a ship based on a delay, she added, could not be reversed even if there were a justifiable cause for the ship’s capture. This is because the question of whether there is a cause for confiscation is irrelevant to the initial duty of the state to bring the ship before the designated prize court.  (Id. ¶ 44.)

  1. Application to the Current Case

According to Naor, the initiation of naval prize procedures by the state ten months following the capture of the Estelle was a sizable delay that significantly exceeds the accepted norms. (Id. ¶ 46.)  Additionally, the state had not presented any considerations specifically related to the Estelle that would justify such a delay. Those considerations could be, for example, efforts to reach an alternative remedy, the handling of cargo, or the conduct of negotiations with the ship’s owners. (Id.)

The circumstances of the case indicate that the state has not had any contact with the Estelle’s owners, nor did it conduct any investigation regarding the ship. In fact, Naor found, the State has not responded to the owners’ inquiries, nor did it update them regarding the ship’s condition. In this situation, she held, not only was the delay in starting the naval prize proceedings unreasonable but, in fact, the state’s mishandling of the owners resulted in depriving them of their right to submit their claims; had they been allowed to do so, it might have prevented the need to engage in the naval prize proceedings in the first place. (Id. ¶ 47.)

In an effort to justify the ten-month delay, the state argued that in evaluating how the Estelle was handled, it had to consider a wide variety of factors, including security aspects, foreign affairs interests, and other policy concerns. Naor rejected this argument and held that such considerations can be made by the state for the purpose of adoption of a general policy towards prize proceedings, but that process must be differentiated from the one needed for a determination of whether to resort to a prize proceeding against a specific ship.  (Id. ¶ 48.)

  1. Verdict

The Court ordered the immediate release of the Estelle and required the state to cover the ship’s costs in the amount of 40,000 New Israel Shekels (about US$10,500). (Id. ¶ 50.)

According to media reports, the Estelle’s owners intend to demand compensation for the damage caused to the ship during its impoundment, including the costs to return it to seaworthy condition. (Israeli Court Orders Release of Ship that Attempted to Break Gaza Blockade, HAARETZ (Aug. 9, 2016).)