File No. 300.115/4215
The Ambassador in Great Britain (Page) to the Secretary of State
No. 1693]
London,
June 29, 1915.
[Received July 14.]
Sir: I have the honor to enclose herewith
for the information of the Department, respectfully referring to my
despatch No. 1678 of June 25,2 in regard to the decision of Sir
Samuel Evans, president of the prize court, in the
case of 400 tons of copper on board the S. S. Zamora, the reasons given for this decision, as published
in
Lloyd’s List on
Wednesday June 23.
The judgment of the president points out what may be considered a
departure from the heretofore recognized procedure of prize courts,
in that he considers that municipal law, as set forth in a Royal
order in council, may be quoted by a prize court as a basis for a
decision, and this opinion would seem to place in the prize court of
a country the right to determine whether or not municipal law [Page 470] should be followed, even
in cases when it might appear to be at variance with the recognized
principles of the law of nations. He supports his decision by
quoting numerous cases, particularly those in prize courts in the
United States.
The final paragraph of the president’s judgment reads as follows, and
would appear to be a forecast of the attitude which the British
prize court will take in the future:
For the reasons, historical and other, which I have endeavoured to
set forth, I am of opinion that nothing contained in the provisions
of Order XXIX of the prize court rules is repugnant to international
law; and that the powers entrusted to and to be exercised by the
court under the order are in accordance with the inherent powers of
the court itself and are well within the rights of the Crown under
the statutory provisions referred to, no less than under its
prerogative authority.
I further have the honor to enclose herewith a comment on the Zamora decision which was written by Mr.
Arthur Garfield Hays, who has been acting
as attorney for the Green Commission Company in the case of the S.
S.
Wilhelmina
, and for several other American corporations. This
statement, which Mr. Hays informs me he has
written at the request of the Associated Press, may be of interest
to the Department in this connection.
I have [etc.]
[Enclosure 1—Extracts]
Decision of the British prize court in the
case of the “Zamora”
The president, giving judgment, said:
By a summons issued in an action in prize relating to the S. S.
Zamora and her cargo, an application
was made by the procurator general for an interlocutory order
that part of the cargo laden on the vessel, viz., about 400 tons
of copper, should be released and delivered up to the Crown
under Order XXIX of the prize court rules, upon an undertaking
to be given by the proper officer of the Crown to pay into court
the appraised value of the copper in accordance with Rule 5 of
the order.
The claim in the writ in the prize proceedings was—
For a decree that the said Zamora
be condemned and confiscated as good and lawful prize on
the ground that the cargo which she was carrying at the
time of her capture and seizure was as to more than
one-half thereof contraband of war, and for a decree
that the said cargo be condemned as good and lawful
prize as contraband of war; or in the alternative for an
order for the detention and/or for the sale of the said
cargo on the ground that the said steamship sailed from
a port other than a German port after March 1, 1915,
having on board the said cargo, which had an enemy
destination or was enemy property.
The Zamora was a Swedish vessel registered
at Stockholm. She sailed from New York, U.S.A., on March 20,
1915, bound for Stockholm. On April 8, when between the Faroes
and the Shetlands, she was stopped and captured by His Majesty’s
ship Alsatian, and a prize crew was put
on board. She was taken to the Orkney Islands, and was, with the
cargo, finally handed over to the marshal of this court on April
19. Thenceforth the ship and cargo remained in the custody of
the marshal of the prize court awaiting the hearing of the cause
upon the judgment in which their condemnation or release
depended.
In support of the present application for the release and
delivery of the cargo to the Crown a sufficient affidavit of the
director of army contracts was filed. The application was
strenuously resisted on behalf of a Swedish firm, who claim to
be the owners of the cargo. The summons came before me in
chambers, and, at the request of counsel for the claimants, I
ordered that it be adjourned into court for argument. Upon the
hearing it was contended that the provisions of Order XXIX
material to the present question violated [Page 471] the law of nations; were not
binding upon this court; and that this court owed no obedience
to them, and ought not to act under them....
In my view persons who lay claim to property captured or seized
have no right by any rule of international law to demand that
the property should be preserved in specie until the final
decree determines whether it is to be released or to be
condemned. Prize courts have always acted upon the principle
that the capture is lawful, until claimants establish the
contrary. All that it is necessary for captors to allege in
prize proceedings is that the capture was made, and that the
property captured is claimed as prize: thereupon claimants must
establish their claim to release. If their claim to release is
sustained they may have the property delivered up, if it has
been kept intact; or they will receive its value if it has been
sold or otherwise disposed of with or without costs and damages
against the captors as the circumstances may require....
I am not called upon to declare what this court would or ought to
do in an extreme case if an order in council directed something
to be done which was clearly repugnant to and subversive of an
acknowledged principle of the law of nations.
I make bold to express the hope and belief that the nations of
the world need not be apprehensive that orders in council will
emanate from the Government of this country in such violation of
the acknowledged law of nations as to make it conceivable that
our prize tribunals, holding the law of nations in reverence,
would feel called upon to disregard and refuse obedience to the
provisions of such orders.
For the reasons, historical and other, which I have endeavoured
to set forth, I am of opinion that nothing contained in the
provisions of Order XXIX of the prize court rules is repugnant
to international law; and that the powers entrusted to and to be
exercised by the court under the order are in accordance with,
the inherent powers of the court itself and are well within the
rights of the Crown under the statutory provisions referred to,
no less than under its prerogative authority.
I therefore order the copper to be delivered up to the Crown as
prayed by the summons.
[Enclosure 2]
Comment on the “Zamora” decision by
Arthur Garfield Hays
A few months ago, the prize court decided in the Antares case that under the then prize
rules neutral property could not be requisitioned. The
Government promptly changed the law, and amended Rule 29 under
which the decision had been rendered. The Zamora sailed before the amendment. Whatever reason
there may be for a country in need of material to requisition
cargoes would not apply to England, with the world’s supplies at
her doors, unless the object be either to prevent owners of
goods from obtaining the full profit of their undertaking, in
case the prize court should determine the shipment was innocent,
or to increase supplies here so that the Admiralty can obtain
goods at a low figure. The Crown need not even show that it
requires the goods or cannot get them elsewhere. Requisition is
made upon a showing that “it is desired to requisition” (Rule
29). This may be the law, but it is not justice.
England evidently reserves the right to scour the seas, bring
goods into her ports, requisition them pending proceedings, and
then condemn them unless the owner assumes a burden of proof,
which is often practically impossible. One of the results,
though of course not the object, of these seizures has been the
creation of artificial or fancy prices in neutral countries by
the seizure of American cargoes, from which English shippers
often obtain the benefit. For instance, while American cotton to
neutral countries was seized in March, April, and May, the
shipment of cotton from the United Kingdom in these months was
twenty times that of the year before.
The opinion is very disquieting to American lawyers on other
points. The court says:
Prize courts have always acted upon the principle that
the capture is lawful until claimants establish the
contrary. All that is necessary for captors to allege in
prize proceedings is, that the capture was made, and
that the property captured is claimed as prize;
thereupon claimants must establish their claim to
release.
This puts the burden of proving innocence upon the shipper. Where
goods have been shipped to neutral ports because of attractive
markets, the ship-owner [Page 472] ordinarily is not interested as to the ultimate destination
of these goods, nor, except in case of absolute contraband, has
he had any reason to fear confiscation, even though a further
shipment were made as the result of a separate commercial
transaction. While the goods are on the high seas, the neutral
consignee might have contracted to deliver them to a
belligerent. However innocent the shipper might be, he will
often not be in the position to prove an innocent ultimate
destination. The proposition of proving oneself innocent, though
there be no evidence of guilt, would seem to be rather new to
English law.
Another important feature of the decision is the position taken
by the court, that its action is governed by orders in council
rather than by general principles of international law. This
means that the administrative or executive departments of the
Government can at any time make the international law which is
binding upon the prize court. The Government will, therefore, be
in a position to determine its own case by executive order.
The result would seem to be that submission to a prize court,
where our Government denies the legal validity of orders in
council, will be merely a formal matter, and that the question
of the legal determination of these cases will have to be dealt
with diplomatically.
