Papers Relating to the Foreign Relations of the United States, 1915, Supplement, The World War
File No. 300.115/5561
The Consul General at Hamburg (Morgan) to the Secretary of State
[Received October 14.]
Sir: I have the honor to transmit, herewith enclosed, a copy and translation of the decision of the supreme prize court in the case of the steamer Glitra. As the Department will observe, the decision of the lower court, which was against the claimants, has been affirmed.
It is the opinion of attorneys in Hamburg with whom I have spoken that this decision could not be regarded as a precedent for [Page 572] the claims of American citizens having claims for merchandise destroyed on the steamers Indian Prince Indrani, and others, as the principal, question still to be decided is whether or not the claimants are entitled to indemnity under existing treaties between the United States and Prussia. It is my opinion, however, that the decision of the lower court will be affirmed.
I have [etc.]
Decision of the German Supreme Prize Court in the Case of the “Glitra”
In the prize case concerning the English steamer Glitra, native port Leith, the Imperial supreme prize court, Berlin, in its sitting of July 30, 1915, in which the following gentlemen took part:
- Secret Counsel, Dr. Hoffmann
- Counsel of the High Court, Brodmann
- Counsel of the Supreme Court, Dr. Buresch
- Secret Counsel of the Legation, Dr. Lentze
- Frigate Captain, Baron Buelow
- Managing Director of the North German Lloyd, Heineken
- Merchant, Eichenberg
- Admiral Borckenhagen
- Clerk Secretary Krupka
passed the following judgment:
The appeals of the reclaimants named under Nos. 9 and 12 of the disputed judgment were rejected as inadmissible; the appeals of the other claimants were rejected as unfounded.
The costs of the appeal are to be borne by the claimants.
Approved of by the court.
On October 20, 1914, the steamer Glitra, belonging to the firm of Salversen and Company, in Leith, and bound with a cargo of piece goods from Leith to Stavanger, was brought up by H. M. submarine U–17 on 50° 4’ north latitude, and 5° 14’ east longitude, and sunk together with her cargo, after: the crew had left the ship. In reply to the request of the prize court, according to section 26, P. G. O. [Prisenr-Gerichts-Ordnung], the thirteen parties mentioned in the disputed judgment as possessing interests in the cargo, claimed compensation on account of the destruction of their property. The claimants are partners of Norwegian firms; only the claimant under No. 2 is a Danish insurance company, representing the rights of its Norwegian insurer.
The prize court decided that the ship sunk was liable to seizure, and rejected the reclamations.
The appeal laid in against this judgment is unfounded.
In the first place the prize court ascertained that without doubt the Glitra was an English ship, and that according to the circumstances the destruction of the ship was necessary, in order to insure capture. It left the question undecided, whether the goods for which claims for indemnification were raised, belonged to neutrals, because it came to the conclusion, that even if this were to be answered in the affirmative, a claim for compensation did not exist. As reason for this it is stated that the question under discussion is not decided either in the prize regulation or in international contracts, namely, not in the London declaration, as is clear from this itself, and the history of its origin. Opinions are divided. In the French memorial it is declared that neutral cargoes have no claim for compensation, because, if the captor considers the destruction of the prize as necessary for military reasons, it is an act of war; whilst the English memorial acknowledges the claim, if it is not for contrabands, because a non-prohibited cargo on board a hostile ship is not liable to seizure. The leading treatise for the preparatory discussion: [Page 573]
Is the owner of certain goods, forming part of the cargo of a vessel destroyed, entitled to claim indemnity, considering the principle that neutral goods shipped on vessels flying an enemy’s 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 granting of an indemnity?
was debated, without an understanding being arrived at. Quite the predominating point of the debates was the question of the admissibility of the destruction of neutral vessels, which were liable to seizure. In limitation of this case, Germany was in favor of allowing the neutrals’ right to indemnity for goods not liable to seizure.
Only Japan uttered an opinion on the case of neutral goods on board a destroyed hostile vessel, namely, in conformity with the standpoint taken by England. There is nothing to support the opinion that Germany nevertheless under these circumstances should have wanted to support the principle in the prize regulation, that also in the case of the destruction of a hostile ship, the neutral cargo has a claim for compensation. An argument in favor of this might at the most be found in Z. 114, P. O. [Prisen-Ordnung], as it is here apparently presumed, when a vessel is destroyed, that compensation is always to be given for the codestruction of the non-seizable portion of the cargo. The argument is however not sufficiently convincing. The supposition is evident that Z. 114 only treats of the destruction of neutral ships, the preceding and following regulation of the P. O. also referring to this case.
This is to be agreed to in the issue.
The question is whether in the case of legal destruction of a hostile ship, compensation is to be given for the goods of neutrals, which are lost together with the ship. It is clear that an express instruction as to this is neither contained in the prize regulation nor in the London declaration; but even indirectly, the P. O. has not stated anything about it. The claimants seek to find such an instruction in Z. 114, P. O. The judge of the previous instance was right in rejecting this, even if his reasons are not always to be agreed with. The commander is herein instructed, before he decides upon the destruction of a ship, to consider whether the injury done to the enemy balances the compensation to be paid for the destruction of the non-seizable portion of the cargo. At the same time, reference is made in brackets, amongst other things, to Z. 18, which deals with the bringing up of hostile ships, and decides which portion of the cargo is likewise liable to seizure. This gives, indeed, the idea as if in Z. 114, the compiler of the prize regulation takes the standpoint that even in the case of the destruction of a hostile vessel, indemnity is to be paid for the non-seizable portion of the cargo. It must also be allowed that this reference confuses the way which the previous instance wishes to take, if it presumes that Z. 114, as well as the preceding and following regulations, only refer to the destruction of neutral ships. Nevertheless the importance cannot be given to this instruction which the claimants wish. Thus understood, it would to a certain extent contradict what the P. O. prescribes in the immediately adjoining number. As is clearly shown here, the P. O. does not take the standpoint that compensation is to be given in every case for the destruction of; goods not liable to seizure; for, in the case of the legal destruction of a neutral ship, compensation is only prescribed for the codestruction of non-seizable goods, in so far as they are neutral goods, but not for hostile ones, which under the protection of the neutral flag were likewise not liable to seizure. In addition there are also hostile vessels, which are not liable to be brought up, and therefore also not to be seized, so that if by chance—for instance, on account of a pardonable error—such a one should nevertheless once be destroyed, the question might arise whether on account of the compensation to be paid for codestroyed values, a distinction should not be made between neutral and hostile property, for which reason it might seem advisable to instruct the commanders of men-of-war to take into account such considerations as are laid down for them in Z. 114. Above all things it is of paramount importance that Z. 114 is not sedes materiae, and that therefore, even supposing that the compiler of the law was of the opinion that also In the case of the legal destruction of a hostile ship, claims for compensation could be sustained for neutral goods, it would be incorrect to see in this a positive decision of this at least doubtful, at all events disputed, but still open, question.[Page 574]
As Wehberg, Austria (Zeitschrift fuer oeffentliches Recht, II, 3, p. 282), correctly points out, it is going too far when Heilfron (Jur. Wochenschrift, 1915, p. 486) only wishes to give to the prize regulation the importance of a command given by the Kaiser to the commanding officers of the Navy. The P. O. contains to a great extent positive law; but just with regard to the question under dispute, Heilfron’s characterization is correct. This Z. 114 is indeed only a command to the commanders of men-of-war. The commander in chief of the war but not the legislator speaks. It does not desire to give material law and does not do so.
Thus obliged to revert to the most general legal principles in connection with the universal laws of war, it is absolutely evident that a claim of the neutrals does not exist, if the destruction of the prize was justified by circumstances (Z. 112 prize regulations).
The bringing up and capture of hostile ships is an admissible act of war against other States, which is sanctioned by international law. Claims for compensation, either from members of hostile or neutral states, can not arise in every case. It is true that according to Article 3 of the Declaration of Paris, neutral property (which is not contraband) cannot be seized even on hostile ships. Therefore it is not even liable to seizure if the ship is brought into port. But there is no question of the parties interested in the cargo having a claim for compensation on account of the injury caused by the bringing up of the ship, the interruption of the voyage, or the conveyance to a different destination to what was intended. There is also just as little claim for compensation if the goods themselves suffer injury in consequence of the seizure of the ship; for instance, if on account of an accident they are lost during the subsequent voyage of the prize. Since seizure is a legal act, there is no legal basis whatever for the inclusion of the injury, which the neutrals have, moreover, themselves caused by entrusting their property to an endangered ship. Therefore, since it was a legal act of war, there is no legal basis for the inclusion of the injury, even if the goods are lost through a war measure, directed against the ship, when owing to circumstances, they must necessarily also be directed against the cargo.
The legal question, which here comes into play can also arise under the the conditions of land war. It can happen and will often happen, that, for instance, during the bombardment of a fortified or defended place, the property of neutrals also may be injured. But even in land war, where private property is much more protected than in sea war, there can be no question in such a case of a liability on the part of the belligerent states to indemnify even the neutrals. (Geffcken bei Heffter, Voelkerrecht, sec. 150, note 1 (incorrect, at least insufficient, viz., the text by Heffter); Calvo, Droit international, IV, 2250–52; Bonfils, Voelkerrecht, 1217; Bordwell, Law of War p. 212.)
In regard particularly to the conditions of sea war, however, Article 3 of the Declaration of Paris gives neither protection in general nor in particular to neutral property against the actions of the belligerents, caused by the necessities of war. That against which the above-named Article 3 desires to give protection is the prize law, to which up to the Declaration of Paris also neutral property on a hostile ship was subject. What the necessities of war demand must be allowed to take place, whether neutral property is on board the ship or not. If according to Article 2 of the Declaration of Paris, the neutral flag protects hostile property, this does not mean, that vice versa neutral property protects the hostile ship: protects it, it is true, only against destruction, but thereby in innumerable cases against every exercise of the prize law.
So far as can be seen up to the most recent time nobody has disputed this. (Compare: Entsch. des franz. Conseil d’Etat vom 21 mai 1872 bei Dalloz, Jurisprudence générale, 1871, III, No. 94 in der Prisensache Ludwig und Vorwaerts; Dupuis, Le droit de la guerre maritime, 1899, p. 334; De Boeck, De la propriété ennemie privée sous pavilion ennemie, sec. 146; Bordwell, Law: of War, p. 226; Wheaton, International Law, 4th ed., p. 507, sec. 359e; Oppenheim, International Law, II, 201, ff.; Calvo, Droit international V, 3033, 34; Hall, International Law, 5th ed., p. 717 f.)
The claimants’ assertion, that the decision of the French prize court in the case of Ludwig and Vorwaerts was almost universally attacked in literature has, apart from the quotations from the newest literature (Wehberg and Schramm, the quotation Hall, p. 187—see above—is incomprehensible), remained unproved, must be regarded as incorrect. Only most recently, particularly in Germany, has there arisen a view of the theory, which universally in the case of the destruction of non-seizable goods—positively, or in as far as [Page 575] it is a case of neutral goods—prescribes obligation of giving compensation as highest principle. (Compare Schramm, Prisenrecht, p. 338 f.; Wehberg, See kriegsrecht, p. 297, Anm. 3 and 4, and Austrian Zeitschrift fuer oeffentliches Recht a. a. O.; Rehm, Deutsche Juristenzeitung, 1915, p. 454.) Thereby the general obligation of giving compensation is felt as a preconception of something self-understood. A reason is not given, and where it is subsequently attempted to bring one forward, it does not appear convincing when compared with the above arguments. Even the argument that land war must be locally confined to the territories of the belligerents, whilst the ship sails over the wide seas, cannot alter the finality of the latter. The hostile ship is subject to attack everywhere on the high seas, and eventually to defeat, in conformity with the perhaps regrettable, at all events, valid state of international law. Finally, as soon as she is on the high seas, she becomes a portion of the territory of her state, into which the neutral has brought his goods of his own free will, having loaded them on board a belligerent’s vessel for the purpose of conveyance over the sea.
Finally, it is no defect in the proceedings, that, as censured in the appeal, the prize court omitted to decide whether the goods, which are the object of the reclamations, are liable to seizure or not. It is the object of section 1. P. G. O., to exactly stipulate the subject of the jurisdiction of the prize court, and if it is prescribed in section 2 on this account, what the decision must embrace, this only serves to draw the boundary within which the court must remain; not, however, to prescribe that in each single case a decision must be passed concerning the questions named, if they are of no importance for the fate of the claims raised.
The claimants under 9 and 12, in spite of being requested to do so, did not pay the advance of costs which was demanded of them. It is therefore unnecessary to enter into the question of their legal claims.
Berlin, September 17, 1915.
Recorder of the Supreme Prize Court