File No. 763.72112/510
The Consul General at London (Skinner) to the Secretary of State
American Consulate General,
London,
December 11, 1914.
[Received December 21.]
No. 187]
Sir: I have the honor to enclose herewith
a copy of a note from the Foreign Office on the subject of seized
shipments of cargo in Great Britain which I have received to-day and
which is stated to be in reply to my letter to the procurator
general dated November 9.2
Sir Edward Grey remarks in
this note that every belligerent possesses the right to refer
particular cases to the prize court, but he appears not to have
given consideration to the fact that these presumed rights in
respect of cargo shipped before the war were
[Page 367]
waived on August 20 when the Privy Council
ordered that “during the present hostilities the convention known as
the Declaration of London shall, subject to the following additions
and modifications, be adopted and put in force.” The additions and
modifications mentioned in the proclamation did not affect the
status of non-contraband goods shipped before the war, nor has their
status been affected by the proclamation of October 29, which
reaffirms the Declaration of London subject to express
modifications. There can be no doubt, it seems to me, that Article
43 of the Declaration of London applies, therefore, in the cases of
American goods shipped before the war. The article named reads as
follows:
If a vessel is encountered at sea while unaware of the outbreak
of hostilities or of the declaration of contraband which applies
to her cargo, the contraband cannot be condemned except on
payment of compensation; the vessel herself and the remainder of her cargo are not liable to
condemnation.... The same rule applies if the master,
after becoming aware of the outbreak of hostilities, or of the
declaration of contraband, has had no opportunity of discharging
the contraband.
Notwithstanding the foregoing very plain language, many of our
shippers of lumber, tobacco, agricultural implements, cotton and the
like, have been kept four months and upwards without obtaining the
release of their goods, although in law their goods appear not
liable to condemnation. If goods are not liable to condemnation, how
can they be subject to detention after a demand for their release
has been formulated; how can there be any plans for their being
brought before the prize court for possible condemnation?
After carefully reading the note from it Edward Grey, I cannot feel that he has given
sufficient consideration to the obligations which the British
Government assumed in proclaiming its adherence to the Declaration
of London, and I am confident that a decision, even at this late
date, to order the release of all goods not contraband shipped
before the war, would be very highly appreciated by numbers of
shippers whose capital is tied up and who are confronted with the
necessity of paying costs which increase with every day of
additional delay.
I have [etc.]
[Enclosure]
The British Secretary of state for Foreign
Affairs (Grey) to
the American Ambassador (Page)
The Secretary of State for Foreign Affairs presents his
compliments to the United States Ambassador and in reply to Dr.
Page’s communication
of the 21st ultimo respecting the cargo
of wheat on board the steamship Miramichi
has the honour to inform him that the president of the probate,
divorce, and admiralty division delivered judgment in the case
on the 23d ultimo when His Lordship found
that the cargo in question at the time of seizure remained the
property of the American claimants and was net therefore subject
to seizure. He accordingly ordered the payment out of the
proceeds of the goods in court to the claimant.
The facts of the case are stated in the report of the judgment, a
copy of which is enclosed. The facts in a large number of other
cases being similar, it was decided on the advice of counsel to
submit the case to the prize court as a test case in order that
the point of law might be determined, i. e., whether the goods
were, at the time of seizure, the property of the American
shippers, or
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of the
German consignee. The claimants in the month of Septembers
instructed solicitors to represent them, and the case was fully
argued in court in November the 2d by counsel on their behalf,
when the president reserved judgment. It was not until the 9th
of November that a letter was received by His Majesty’s
procurator general from the United States Consul General in
London, protesting against the seizure of the goods in question.
On the 12th of November a second letter was received from Mr.
Skinner, which the
procurator general, considering that it contained
representations of a diplomatic nature, referred to this
Department. Dr. Page will perhaps be good enough to consider
this note as a reply to the above mentioned letter as well as to
his own note of the 21st ultimo.
In consequence of the decision of the president in this case the
proceeds of the goods will be paid to the claimants, and in
similar cases where the property in the goods seized has not
passed to the enemy at the time of seizure the goods will be
released. There will be no need to apply to the prize court
except in cases where it is doubtful whether the property has
passed or not. This naturally only applies to shipments made
before the outbreak of war and without contemplations of
war.
A possible result of this decision is that a neutral shipper will
receive payment for his goods twice; since, upon tendering the
shipping documents to the German consignee he is entitled to be
paid the price quite independently of whether the goods reach
their destination; while, if the goods have been seized and
sold, the proceeds would, under the judgment given in the case
of the Miramichi, have been handed back to the neutral
vendor.
Dr. Page enquired whether the submission of this case to the
prize court indicated an intention on the part of His Majesty’s
Government to abandon the policy announced in a telegram to His
Majesty’s Ambassador at Washington of September 4. This telegram
was as follows:
In order to prevent loss to subjects of neutral
powers and to encourage continuance of trade His Majesty’s.
Government have taken steps to set free expeditiously and
without reference to prize court as many cargoes as possible
even though in some cases the cargoes may possibly be liable in
law to condemnation as prize. An executive committee with full
power to deal with such cases has been appointed.
Sir Edward Grey has the
honor to state that His Majesty’s Government have not abandoned
and have no intention of abandoning that policy. The executive
committee therein referred to is still in existence and has
released with the utmost expedition and without the necessity of
prize proceedings an enormous amount of cargo, although in some
cases they have not as yet been able to deal with applications
for release, owing to the claimants being unable to produce any
documents. It is however not possible for His Majesty’s
Government to abandon the right which every belligerent
possesses, to refer particular cases to the prize court, and
they do not consider that the telegram referred to justifies the
contention that they have abandoned that right.
The interpretation apparently placed upon this telegram by the
United States Government amounts to a suggestion that no cargo
claimed by an American citizen can be referred to the prize
court. It is necessary, to point out, where there are reasonable
grounds for regarding goods as enemy property, it is essential
that it should be open to the Crown to refer the matter to the
prize court for adjudication, for if this cannot be done in such
cases the elementary right of a belligerent to condemn enemy
property would be defeated by the mere assertion of a claim by a
neutral.
It seems probable however that a large proportion of the cases
now outstanding in which American claimants are interested will
be covered by the decision in the case of the Miramichi and the United States Government may rest
assured that if any other cases arise in which American citizens
have failed to receive payment for goods shipped before the war
to a German destination, such claims will be considered in a
generous spirit by His Majesty’s Government.
Foreign Office,
December 5,
1914.
