Papers Relating to the Foreign Relations of the United States, 1915, Supplement, The World War

File No. 300.115/4766

The Consul General at Hamburg (Morgan) to the Secretary of State

No. 315]

Hamburg, August 5, 1915.
[Received August 23.]

Sir: I have the honor to transmit herewith enclosed a copy and translation of the decision rendered by the Hamburg prize court in the case of the steamer Indian Prince. It will be seen therefrom that the decision, according to my forecast, is adverse to the claimants, and this fact I communicated to the Department by cable on August 3, 1915.¹

It is presumed that the claimants will now appeal to the supreme prize court, who will, no doubt, affirm the decision of the lower court.

I have [etc.]

Henry H. Morgan

[Enclosure—Translation]

Decision of the Hamburg Prize Court in the case of the “Indian Prince”

In the name of the empire

Pr. A. 37

In the prize matter concerning the English steamer Indian Prince (owner, Prince Line; home port, Newcastle) and her cargo, the following decision was handed down by the Imperial prize court in Hamburg in the session of July 3, 1915, being attended by the following:

1. Dr. Brandis, President of the Supreme Court, chairman

2. Marine Captain Reincke (retired)

3. Dr. Lehmann, counsel of the Supreme Court

4. Thomann (director of a ship company)

5. F. W. Witthoeft (merchant), assessor and judge

6. Rear Admiral Plachte (retired), Imperial commissioner

7. Clauss (secretary of the court), recorder

The wrecked ship and the lost cargo were subject to confiscation. The claims Nos. 1–10, 12–36, and 38 are rejected as being unfounded.

The cost of the legal proceedings must be paid by the claimants as follows: For Nos. 2–9, 17–19, 21–25, 33–36, and 38, each one fortieth; Nos. 26–28, 29–32, 20 (15 and 16), each two fortieths; Nos. 13 and 14 three fortieths; Nos. 10 and 12, each four fortieths.

arguments

The English steamer (Prince Line) Indian Prince, hailing from Newcastle, was stopped on September 4, 1914, at sea, 7° south, 31° west, by His Majesty’s auxiliary cruiser Kronprinz Wilhelm , and was brought up and sunk on September 9, 1914, 18° south, 28° west, after having rescued the crew and taken over the ship’s papers and documents found on board. The ship’s papers, or the register, proves that the ship was entitled to fly the English flag. According to cipher 10, P. O., the bringing up and according to cipher 112, P. O., the destruction of the hostile ship took place lawfully, as it appeared unsafe to the commander to bring the ship in a port. According to the report of the prize, the steamer had a stock of 300 tons of coal from which 200 tons were taken over by the auxiliary cruiser, the coal belonging to the prize ship and being looked upon as hostile property.

The cargo consisted of coffee, cocoa, skins, pockwood, caoutchouc, which was taken on board in the ports of Santos, Rio de Janeiro, Victoria and Bahia. The ship was engaged in sailing to New York but was supposed, however, to call at Trinidad, where, it is stated, she was to coal.

The summons prescribed by law to put in the claims was published in the Reichsanzeiger on January 14, 1915, granting a respite of four weeks. This respite was prolonged two months and this prolongation was published officially in the Reichsanzeiger of February 10, 1915. Upon this proclamation the following claims were presented:

1. Insurance Company of North America in Philadelphia

2. W. R. Grace and Company in New York

3. Frederick J. West, Incorporated, New York

4. John O’Donohue’s Sons, New York

5. The Merchants Coffee Company, Baltimore

6. Lawrence Johnson and Company, Philadelphia

7. Sutton and Vansant, New York

8. Gustav L. Steward Company, Baltimore

9. Eppens Smith and Company, New York

10. Chase and Sanborn, Boston

11. G. Amsinck and Company, New York

12. G. Amsinck and Company, New York, or Durish and Company

13 & 14. Hard and Rand, New York

15 & 16. Willard Hawes and Company, New York

17. J. H. Rossbach and Brothers, New York

18. Atwood and Company, Minneapolis

19. Aragon Coffee Company, South Richmond

20. Steinwender, Stoffregen and Company, New York

21. Herklotz, Corn and Company, New York

22. Potter, Sloan, O’Donohue Company, New York

23. Hewlett and Lee, New York

24. The Lowry Coffee Company, Philadelphia

25. Wessels, Kulenkampff and Company, New York

26, 27, & 28. Grossmann and Sielcken, New York

29 to 32. Leon 2. Israel and Brothers, New York

33. F. W. Wagener, Charleston (U St.)

34 & 35. W. R. Grace and Company, New York

36. The Great Atlantic and Pacific Tea Company, Jersey City

37. Kroger Grocery and Baking Company, Cincinnati

38. B. Fischer and Company, New York

The term appointed on which the trial should take place was July 3.

During this term of trial, however, the matter was discussed under the restriction: whether neutral property, which was on board a hostile vessel and was sunk together with the same, should be reimbursed.

The Imperial Commissioner moved for the decision that the destroyed ship was seized lawfully and that the vessel and the cargo were subject to confiscation, and that all claims of indemnification were to be dismissed, the costs of the proceedings being charged to the claimants.

The representatives of the claimants set forth the contents of the statements in writing, contained in the vouchers, under the restriction regarding the question whether reimbursement should be granted, if it were ascertained that the owners of the cargo are neutral subjects, that is, citizens of the United States.

Concerning the authority of the sinking of the vessel the attention is called to the arguments set forth in the beginning of this decision. Regarding the authority to sink the cargo without any obligation of indemnification this court adheres to its decision in the case of the Glitra and calls the attention to the statements made therein. The court is not in the position to take any new points of view from the statements of claims which would lead the court to an alteration of its conception set forth in the Glitra case. Cipher 114, P. O., does not contain any legal paragraph as to whether and when an indemnity should be paid, but merely an instruction for the commander of the men-of-war.

The question of indemnification is ruled by cipher 8, P. O. It is not presumable that the German Government intended to make greater concessions to neutral powers in the question of indemnity than those agreed to at the London conference. The acknowledgment of the prize law and the right of destruction of hostile merchant vessels excluded as a matter of consequence the acknowledgment of the obligation of indemnity for the neutral cargo destroyed together with the vessel. The purpose of the destruction of hostile merchant vessels, namely, to disturb the hostile navigation at sea, thereby disarranging the national welfare of the enemy, could never be attained if the obligations of indemnification for neutral cargoes, destroyed together with the hostile ship, existed. This idea is also shared by reputable teachers of legislation, as may be seen from the conclusions arrived at by Professor Hilfron, in his publication on the Lusitania case (I. W. 1915, pp. 485 et seq.) and the writers Pitt Cobbett (Cases and Opinions, p. 394), Barclay (Problems of International Practice and Diplomacy, 1907, p. 102), Hall-Atlay (A Treatise on International Law, 1904, p. 717), Oppenheim (International Law, II, 201). Also the essay published by Professor Rehm (Deutsche Juristenzeitung, 1915, pp. 454 et seq.) is by no means without restriction regarding the standpoint taken by the claimants; he states on page 457: “The commanders may take the standpoint that neutral owners would only rarely entrust their property to hostile ships; the commanders thus may look upon goods found on board such vessels as hostile without any formalities and may destroy the same. If it is found out later, that the cargo was neutral property, notwithstanding, no claim of indemnity arises therefrom, as sufficient reasons for the sinking of the cargo together with the ship existed.” The Imperial Commissioner also called the attention to the fact that after the German-French war, the French prize courts decided in the same manner in the case of the cruiser Désaix which had sunk two German ships, Vorwärts and Ludwig, carrying English goods.

Regarding the appeal of the claimants to the treaty between Prussia and America of the year 1799, this court believes that according to the information received from the Foreign Office, it has to take the standpoint that this treaty is also formally valid for the German Empire.

Article 13 of this treaty, however, was published with an incorrect text in Martens’s Recueil des Traités, Volume II, page 237, as well as in the publication of commercial treaties of the German Empire, published in the Imperial Office of the Interior (1906), page 1266.

The prize court adheres to the text which was presented to the same as a legalized copy of the original treaty, such as may be found in the secret state archives.

This text reads as follows:

Dans le cas où l’une des parties contractantes se trouveroit en guerre avec une autre, puissance, il a été convenu que pour prévenir les difficultés et les discussions qui surviennent ordinairement par rapport auxmarchandises de contrebande, telles que armes et munitions de toute espèce, aucun de ces articles, chargés à bord des vaisseaux des sujets ou citoyens de l’une des Parties et destinés pour l’ennemi de l’autre, ne sera censé contrebande, au point d’impliquer confiscation ou condamnation, et d’entrainer la perte de la propriété des individus. Néanmoins il sera permis d’arrêter ces sortes de vaisseaux et effets, et de les retenir pendant tout le tems que le Preneur croira nécessaire pour prévenir les inconveniens et les dommages qui pourroient en résulter autrement, mais dans ce cas on accordera une compensation raisonnable pour les pertes qui auront été occasionnées par la saisie. Et il sera permis en outre aux Preneurs d’employer à leur service en tout ou en partie les munitions militaires détenues en payant aux Propriétaires la pleine valeur, à déterminer sur le prix qui aura cours à l’endroit de leur destination; mais si dans le cas énoncé d’un vaisseau arrêté pour des articles de contrebande, le mâitre du navire consent à délivrer les marchandises suspectes, il aura la liberté de le faire, et le navire ne sera plus amené dans le port, ni détenu plus longtems, mais aura toute liberté de poursuivre sa route.

This treaty was drawn up in French and English language; the French text, which is quite clear, takes the place of the German text, as the French language was at that time the official language of the Prussian Government in the intercourse with other than German states; besides, the English text also does not offer any difficulties, at any rate if the French text is considered at the same time. The decisive words are according to this text: “Chargés à bord des vaisseaux des sujets ou citoyens de l’une des Parties.” Privileged are according to this text—American goods on board of American vessels and German goods on board of German vessels, not American goods on board of hostile ships, or hostile cargo on board of American vessels.

According to the foregoing all claims are unfounded, also, if examination reserved of the conditions of ownership should prove that the cargo consisted of neutral or American goods.

Regarding the claim No. 37, which was withdrawn and filed again later on, nothing could be decided yet as to whether the claim should be looked upon as admissible as the representative of the claimant has not yet been given the opportunity to plead for this case.

Brandis
Dr. K. Lehmann

1. Not printed.