File No. 763.72112/886
Claimants can only be represented before the prize court by German
counsel and in order that counsel should be able to present the case
it will be necessary to give at least the name of the vessel, a
description of the cargo claimed, an estimation of the value and
some indication as to what proof the claimant has that the cargo in
question is the property of a citizen of the United States. A. full
power of attorney should at once be sent. For the first application
to the prize court, however, a simple telegraphic authorization to
German counsel will be sufficient. It is not necessary that the full
phraseology of an American power of attorney should be telegraphed.
Any proofs which the claimant may have should be dispatched at the
earliest possible moment and further proofs can be sent afterwards,
although it will help the case considerably if such proofs as are
available are produced on entering the claim.
The formal application to the prize court, which must be within the
time limit as hereinbefore set forth, has only reference to open
proceedings. The actual trial of the case will only be heard by the
prize court later and there will always be sufficient time to fully
prepare the case and produce the necessary proofs.
To secure a favorable decision it will be necessary in the first
place to prove that the claimant is a citizen of the United States.
If the claimant is a company, a sworn affidavit or some other
official document must be produced showing conclusively that all
partners of the firm are citizens of the United States. If one
partner of the firm is a citizen or subject of an enemy state, this
fact alone will debar the claimant. If the claimant should be a
limited company, it will be necessary to prove by an official
document that such company is incorporated and domiciled in the
United States. It will furthermore be necessary to prove that the
cargo at the time of its capture or destruction was the property of
a citizen of the United States and the production of the bills of
lading of such goods will, generally speaking, be accepted as
competent proof; but it will be advisable to produce at the same
time proof that the bill of lading has not passed into the hand of
an alien enemy, such proofs, for instance, as bankers’ letters
showing that the receiver has refused to accept the drafts annexed
or similar documents.
The law does not exclude the right of claimants to bring proofs by
witness and paragraph 56 of the law in question provides that prize
courts may order a commission to issue to German consuls to take the
evidence of witness. It is the general opinion, however, of
prominent lawyers in Hamburg that the prize courts would not resort
to the long and tedious process of taking the depositions in
America, and it is therefore of great importance that as full
documentary evidence as possible be produced.
From the decision of the prize court there is always an appeal to the
supreme prize court and a notice of appeal must be given within two
weeks alter the decision of the court of first instance has been
handed down.
The prize court rendered a decision some time ago that the neutral
owners of cargo on British vessels sunk by the German cruiser Karlsruhe had no right to claim for damages
but an appeal has been taken from this decision. I am endeavoring to
obtain a copy of the decision referred to and will send it forward
when received.
All the foregoing information has been given after consultation with
Dr. Stammann, of the firm of Dres. Schroeder,
Stammann and Nolte, one of the most important and influential firms
of attorneys in Hamburg.
Copies and translations of such parts of the German law as are cited
in this despatch and which I have considered would be of interest to
American citizens are enclosed herewith.
[Enclosure—Translation]
Paragraphs of the “Deutsches
Seekriegsrecht” of Interest to Citizens of the United
States
26. The president of the prize court should, although the prize
has been released, request the interested parties to present
their claims within a certain period by filing petition with the
court. The time granted should not be less than two weeks and
should not exceed two months.
The summons can be served by publication of the fact in the Reichsanzeiger. It is considered legal
after the second day on which the publication of the
announcement is made.
The interested parties, whose residences are known, should, when
possible, receive special summons by post unless they have filed
their claims in the meantime; however, they are looked upon as
being legally notified by official publication of the
summons.
The interested parties are:
- (1)
- The owner of the vessel and the cargo in the vessel
seized;
- (2)
- All private persons claiming to have a lawful interest
in the releasing of the prize, or in damages the owners
may receive.
27. The petition must contain all facts and proofs upon which the
claim is based; the originals of official documents should, if
possible, be produced.
The petition must be presented by a lawyer admitted to practice
before a German court, who is provided with a written power of
attorney and who has acquired the right to perform the duties of
a judge.
If the claimant does not reside within the official district of
the prize court, a person should be named, residing within this
district, upon whom the summons may be served for the
claimant.
28. Upon such claims as have not been presented within the
stipulated time, the prize court will pass judgment after having
consulted the Imperial commissioner in regard to the evidence
based on the records.
29. If the claim was presented in time, the president shall
stipulate the time when the verbal proceedings should take
place. The Imperial commissioner and the claimant should be
summoned officially. Several claims regarding the same subject
should as a rule be tried at the same time.
30. A term may be postponed ex officio or
upon application the proceedings may be adjourned and another
time may be set when the proceedings shall be continued.
31. The Imperial commissioner shall have full power to examine
all vouchers.
Upon application and if permission is granted by the Imperial
commissioner, the claimant or his representative may be granted
permission to examine the contents of the vouchers prior to the
proceeding. The Imperial commissioner can refuse his consent
only in so far as military interests come into
consideration.
[Page 349]
32. The hearings are public. However, the public may be excluded
during the entire time, or such part of the time as the prize
court may decide upon when the interests of the Government are
endangered.
The stipulations of constitutional law for German courts are
applied accordingly.
33. The hearings start with a statement of the facts by the
assessor charged with the report, whereupon the Imperial
commissioner and the petitioner are entitled to state
particulars and make propositions. The introduction of new facts
and proofs are admissible.
The claimant must be represented by a lawyer admitted to practice
before a German court, authorized to act as a judge. The prize
court may admit another competent person thoroughly versed in
law matters.
Although the petitioner is not satisfactorily represented, the
proceedings will go on.
34. A sworn clerk to take the testimony is required during the
hearings. The constitutional regulations applicable to civil law
are enforced accordingly.
35. The prize court passes judgment after consideration of all
the evidence pertaining to the proceedings in question.
Should the judgment as passed be based upon facts which were not
brought out at the hearings, the petitioner must be heard prior
to pronouncement of the verdict.
The paragraphs of the constitutional law concerning discussions
and rulings are applied accordingly. The associate judges must
vote first, the president last, the younger members vote prior
to the older ones.
36. In the verdict as pronounced all questions should be decided
which are referred to in the first paragraph of this law.
37. Furthermore the verdict must state who is to pay the costs of
the action at law.
If the claim of the petitioner is rejected he is to be held
liable for the costs of the action resulting from his claim. If
the costs were brought about by joint claims, they should be
proportioned accordingly.
If the claim is acknowledged, the Government pays the costs. The
latter is also liable for any necessary costs caused by the
claim of the petitioners should the Imperial Chancellor declare
that the exchange is warranted, unless sufficient reasons
existed for the measures taken by the prize court, in which the
claim was presented.
If a ship, the cargo of which consisted of contraband, is
released, the costs of the trial relating to the seizure of the
contraband, as well as the costs of maintaining the ship and
cargo during the trial of the case, are to be charged to the
owners of the vessel, although no claim was made.
The amount of the costs is stipulated in a special ruling. Such
ruling may be combined in the verdict.
38. The verdict should state all reasons for the verdict as
passed. It also should state the name of all judges having voted
in the particular case, and it should be signed by the president
and an assessor who should be thoroughly versed in legal
matters. It should start with the preamble of introduction: “In
the name of the Empire.”
39. The Imperial commissioner as well as the petitioner are
entitled to take an appeal from the verdict, except in cases set
forth in paragraph 25.
A written appeal must be filed with the prize court within two
weeks after the verdict has been handed down.
The person taking the appeal should file a brief within one month
following, stating the grounds on which the appeal is based, and
what changes the petitioner desires to make.
The grounds for the appeal may be filed with the application.
The appeal and the grounds therefor filed by the petitioner must
be signed by a lawyer admitted to practice before a German court
and authorized to act as a judge.
The court may decide that a legal power of attorney be
subsequently produced.
40. If the appeal was not taken in time or the grounds therefor
are not supplied within the time limit or in due form, the prize
court must reject it and hold that it is not admissible.
The applicant may demand within one week’s time after the verdict
is handed down that the matter be, placed before the superior
prize court. The prize court cannot alter the verdict returned
the records must be sent to the [Page 350] superior prize court for decision through
the mediation of the Imperial commissioner.
41. The prize court has a right to prolong the time limits stated
in paragraph 39, sections 2 and 3, upon application by a
petitioner taking an appeal.
42. If the appeal is taken in time and the grounds therefor filed
within the time specified and in due form, the appeal and the
grounds therefor are turned over to the plaintiff with the
request that he file his answer to the appeal within two weeks’
time. The regulation contained in paragraph 39, section 5, is
applicable to the declaration last mentioned.
43. After having received the answer to the appeal, or after the
time has elapsed, the Imperial commissioner places the documents
before the superior prize court.
44. The regulations contained in paragraphs 24, 25, 29 to 38 are
applicable to the proceedings to be held before the superior
prize court.
If any questions were not settled by the decision disputed by the
petitioner in the matter turned over to the superior prize
court, the same may be returned to the prize court, in so far as
new hearings are made necessary.
56. All courts and administrations within the Imperial territory
and within the German protectorates, as well as the
representatives of the Empire abroad, have to comply with all
requests of prize officials and of the Imperial commissioner to
perform official duties within their respective districts. Nos.
158 to 162, 166 and 167 of the constitutional laws are
applicable according to the legal assistance rendered by the
court. German consuls are authorized to take the depositions of
witnesses and experts under oath in order to determine such
cases.
Costs (in cash) are reimbursed by the prize court making the
request to the authorities to whom the inquiry was
addressed.
