Papers Relating to the Foreign Relations of the United States, 1915, Supplement, The World War
File No. 300.115/2635
The Consul General at Hamburg (Morgan) to the Secretary of State
[Received March 18.]
Sir: Referring to my despatch No. 204, February 17, 1915, I now have the honor to transmit herewith enclosed a copy and translation of the decision of the prize court in Hamburg in the Glitra case together with a copy of a letter from Dres. Schroeder, Stammann and Nolte, commenting upon the decision, which accompanied it.1
I have [etc.]
Decision of the Hamburg Prize Court in the Case of the “Glitra”
On October 20, 1914, the steamer Glitra, a merchantman, carrying freight to Norway, was captured and sunk in the open sea, in latitude 59° 4’ N. and longitude 5° 14’ E., by His Majesty’s submarine boat U—17. According to the prize record, the ship when stopped was flying the English flag, and there was no doubt that she had the right to fly this flag. The list of the crew found among the ship’s papers and a document dated London, February 2, 1907, showed also beyond doubt that she apparently was an English ship, being the property of the English firm Salversen and Company in Leith and hailing from Leith. Consequently there is no doubt but that the Glitra was an English and hence an enemy ship. The ship was sunk upon the orders of the commander of the war vessel, because, as stated in the record, bringing her in was impossible on account of the great distance. The cargo was sunk along with the ship.[Page 351]
The request to present claims concerning ship and cargo according to paragraph 26 of the regulations of the prize court was published in the German Reichsanzeiger of November 6, 1914, fixing a time therefor of two months. No claims regarding the sunken ship nor that part of the cargo which is not touched by the claims which are specifically stated in this report, were filed within the time limit.
The thirteen claimants named in the decision have presented their claims for indemnity within the time limit, expired on January 6, 1915, by filing an application signed by a lawyer admitted to practice before a German court; the claims are based upon the facts that at the time of destruction of the ship each one of the petitioners was the owner of that portion of the cargo which is specified; that the claimants are Norwegian subjects, thus belonging to a neutral country, and that they are entitled to receive indemnity according to paragraph 114, P. O. [Prisen-Ordnung], as neutral property is not subject to seizure (see paragraph 19, P. O.) except under certain circumstances not coming into consideration in this instance. It is, however, necessary to determine whether or not the statements of facts set forth by the claimants relative to the ownership of the goods destroyed and the nationality of the owners are correct, as the prize court is of the same opinion as the Imperial commissioner, namely, that for neutral goods constituting the cargo of an enemy ship and sunk along with the ship by order of the commander of the war vessel, no indemnity shall be granted under any circumstances
Neither by the prize regulations nor by the international agreements referring to the laws of marine warfare is this question decided; therefore it must be considered just how far the preliminary proceedings will afford a basis for its solution. Necessarily, if not exclusively, the discussions and decisions of the London Naval Conference dating from December 1908 until February 1909, regarding naval warfare, in which most of the civilized nations took part, must be considered in connection therewith. The memorials presented by the separate states which were introduced during the conference, must also be considered because these led to the Declaration of London of February 26, 1909, which, however, has not yet been ratified, but whose regulations form almost the entire basis for the German prize regulations, especially in so far as in naval warfare legal status of neutral property comes into consideration. The transactions and decisions of the London Naval Conference regarding naval warfare have been collected and published by Dr. Schramm by direction of the Imperial naval authorities; the authoritative paragraphs upon which the decision in this case is to be based are cited in the following, as given in Dr. Schramm’s book. Stress should be laid upon the following sentences taken from the memorials presented at the beginning of the deliberations (see Schramm, pp. 41 and 57):
From the French text:
If for military reasons the captor thinks it necessary to destroy a prize in the open sea, this destruction is a war measure which does not form any basis for a claim for indemnity on the part of the neutral owner of the cargo.
From the English text, which takes the opposite standpoint:
As a lawful cargo on board of an enemy ship is not subject to seizure, the owner of this cargo can, when the enemy ship is destroyed, put forth a legal claim for indemnity.
With reference to these and other essential but different points of view, as set forth in the memorials of these two and of the other nations participating in the conference, the British Government thought it opportune to formulate a principle applicable to the decision of cases such as this; and in its leading principles in preparation of the deliberations the British Government, under No. 32, put this principle in the form of a question, reading as follows (Schramm, pp. 103 and 104):
Is the owner of certain goods forming part of the cargo of a ship destroyed, entitled to claim indemnity, considering the principle that neutral goods shipped under an enemy flag are not subject to seizure, or is the destruction of the ship in such cases an act of war which does not obligate the belligerent nations to the payment of an indemnity?
During the fifth meeting of the conference on January 15, 1909, the leading principles No. 30 (“a neutral prize must on principle be brought into a prize harbor”), No. 31 (“Is the obligation to bring a captured neutral ship into a prize harbor looked upon as absolute or are exceptions admissible?”) and No. 32 (as above) were treated. The discussions related, however, in the main, to the admissibility of the destruction of neutral ships and of neutral goods in the latter. Furthermore, the German delegation discussed especially the details of a case in which goods not subject to seizure are destroyed together with a neutral ship, the destruction of which is to be considered as lawful; in opposition to the standpoint taken by the French delegates, the German delegates suggested that in such a case an adequate indemnity should be granted to the owners of such destroyed goods (see Schramm, p. 205 et seq., especially pp. 211 and 212). Only the Japanese delegates agreed to the principle, in harmony with the view expressed by the British Government, to the effect that: “If an enemy merchant ship is destroyed, the owner of the neutral goods on board should be granted an indemnity on principle” (Schramm, p. 221). It does not appear that this view was supported in the discussions which followed. The result of the discussions in this fifth meeting was the unanimous determination that on principle the destruction of neutral prizes should only be permissible in exceptional cases; that the latter should be precisely defined and that no success could attend the discussion of every single matter in dispute before the committee itself (Schramm, p. 223). At the conference proper no further discussions took place, the suggestions of the committee having been accepted unanimously (Schramm, p. 224). From the facts above mentioned it will be perceived that the delegates deliberately avoided a settlement of the question as to whether indemnity should be granted for neutral property destroyed in an enemy ship, and furthermore that Germany especially had suggested the granting of an indemnity for the destruction of neutral goods on a neutral ship that is destroyed. There is nothing to show, therefore, that especially in view of her geographic position which in a majority of cases in naval warfare precludes the bringing in of captured ships to a German port, Germany should without cogent reasons and plainly to her own disadvantage have laid down as a principle of the prize laws a regulation to the effect that an indemnity should be allowed to the neutral owners of property on board an enemy ship that is destroyed for reasons dictated by war necessity. In such instances the commander of a war vessel capturing an enemy ship, would in most cases have to consider too many things, which for the most part he cannot go into thoroughly on account of the limited time for action, if it should be impossible to bring the ship in question into a German port, and therefore had to be destroyed; although in doubt perhaps, he could not under the circumstances determine whether or not the injury caused to the enemy through the destruction of the ship would be less considerable than the loss which the German Empire would sustain through being obliged to grant indemnity for the value of the neutral cargo destroyed together with the ship. A consequence scarcely intended by the legislator would be that in many cases the commander of the war vessel would release the enemy merchant ship merely on account of the pending indemnity to be granted for the cargo which would go down with her. Furthermore, in this connection attention may be called to the fact that it is stated in paragraph 20 b, section 2, of the prize regulations that generally it will not be possible on shipboard to ascertain proof of ownership of certain portions of the cargo.
The one doubt in opposition to the standpoint taken here by the prize court might be inferred from paragraph 114, P. O., on which the claimants have, to a great extent, based their claims. Here it is stated, however, that before resolving to destroy “a ship” the commander should consider “whether the damage caused to the enemy is compensated by the indemnity which must be paid for the portion of the shipment not subject to seizure (compare 18, 421, 51, 56 and 80).” From this wording it might seem as if the prize regulations took the standpoint that in the case of destroying any ship, even if an enemy ship, an indemnity should be paid for the destruction of all goods destroyed which do not come under the paragraphs cited, as being subject to confiscation; i. e., merely for neutral goods in so far as they do not represent contraband or otherwise constituting an exceptional case. The deduction of such a principle from paragraph 114 of the prize regulations would, however, considering the above statements, only be justified if it were absolutely convincing; this, however, according to the opinion of the prize court, is not the case. On the contrary, it is to be supposed that paragraph 114 only deals with the destruction [Page 353] of neutral ships, and that we are here confronted by an inaccurate wording when reference is made to the destruction “of a (any?) ship” The position of paragraph 114 between the preceding and the following paragraphs especially points to this conclusion, in view of the fact that paragraph 113 explicitly deals with cases in which a neutral ship can be destroyed, while paragraph 115 deals with the question of the indemnity in case of the destruction of a neutral ship. The wording of paragraph 114 itself can be interpreted to a certain extent in support of this conclusion. Because if in such a case the damage caused to the enemy by the destruction is compared with the indemnity which the German Empire may possibly be obliged to pay for destroying that portion of the, cargo which was not subject to seizure, it can easily be conceived that with “the damage caused to the enemy” such injury is intended as has been sustained through the destruction of that part of the cargo which should be considered as enemy cargo and thus is seizable; the loss caused to a neutral party by the destruction of a ship is probably not thought of in paragraph 114.
There can be no divided opinion as to whether the destroyed merchantman could alone be sunk, if it was to be taken from the enemy at all, when we bear in mind that the place of capture was at a great distance from a German port and the war vessel making the capture was a submarine. Hence the cargo went down with a ship that was lawfully sunk, and the owners of the cargo have not the right to present a claim for indemnity, even if they are subjects of a neutral country.
Applying paragraphs 1, 10, 11, 17, P. O., and paragraph 1 of the prize court regulations, the verdict is therefore rendered according to the motion of the Imperial commissioner.
The decision regarding costs is founded upon paragraph 37, P.G.O. [Prisen-Gerichts-Ordnung].