File No. 763.72112/1408
The Secretary of State to the Ambassador in Germany ( Gerard )
Sir: The Department is in receipt of your No. 1194 of July 9, 1915,1 with which you enclosed a translation of a note verbale from the German Foreign Office, relative to reciprocity of treatment of claimants in prize-courts proceedings in Germany and in the United States.
Under the constitutional form of government obtaining in this country the executive department has no control over the judicial department of the Government, and the Department therefore is not in a position to make any binding declaration as to what the practice of the Federal courts might be in the event that they might be required to determine prize causes.
The Department referred the communication of July 7 from the Imperial German Government to the Department of Justice for its consideration and has now received a reply as follows:
By the practice in American prize courts the matter of costs and expenses is left very largely to the discretion of the court. It has been the general rule, however, not to allow costs and expenses to a claimant where probable cause for the capture is shown by the record, even though a decree of restitution in [Page 541] his favor is made. See The Apollon (9 Wheat. 362, 379); The Mary (9 Cranch 126, 151); The Thompson (3 Wall. 155, 162); The Wren (6 Wall. 582, 588); The Olinde Rodrigues (174 U. S. 510); The Buena Ventura (175 U. S. 384, 395). And in cases where the conduct of the claimant has been such as to mislead or deceive the captors, costs will, as a general matter, be denied to the claimant notwithstanding a decree in his favor. The Springbok (5 Wall. 1, 28); The Peterhoff (5 Wall. 28, 62); The Dashing Wave (5 Wall. 170, 178); The Sir William Peel (5 Wall. 517, 536); The Venus (5 Wheat. 127, 132); The London Packet (5 Wheat. 132, 143).
It would seem, therefore, that if there is a general rule as to German prize courts by which costs and expenses are charged to the account of the German Empire in all cases where the claim is allowed, reciprocity of treatment cannot be assured in all cases, since in this country the court will charge a successful claimant with costs and expenses under some circumstances.
In communicating the above to the Foreign Office you may assure the Imperial German Government that German subjects would be accorded the same treatment by our prize courts as that accorded to the nationals of any other country, and say that it is hoped that American claimants may receive in the German prize courts treatment no less favorable than that accorded to the nationals of other countries.
I am [etc.]