File No. 763.72112/2026
[Enclosure—Translation]
The German Foreign
Office to the American
Embassy
No. IIIa 21552/180931
Note Verbale
The Imperial Foreign Office has the honor to reply as follows to
the note verbale of the American Embassy,
of October 14 last, F. O. No. 5684, concerning the status of
reciprocity between Germany and the United States in regard to
the costs of prize court proceedings:
[Page 643]
Section 37, paragraph 3, of the German prize court ordinance of
April 5, 1911 (Imperial Law Gazette 1914,
sheet 301) reads as follows:
If a claim has been allowed, the costs will be to the
debit of the Empire. Wherever the Imperial Chancellor
declares the guarantee of reciprocity to exist, the
necessary outlays of the claimants will also have to be
borne by the Empire unless sufficient reasons existed
for the prize measure to which the claim refers.
All the nations in regard to which, in accordance with this
regulation, the guarantee of reciprocity has thus far been
declared to exist, viz.: Holland, Sweden, Norway and Denmark,
have furnished to the German Government the basis for the
declaration by means of the assurance of each government
concerned that the prize courts of the respective country would
in similar cases, if any, grant German claimants the refund of
costs and expenses to the same extent as has been provided for
the opposite case by the above-mentioned regulation of the
German prize court ordinance.
An assurance of this tenor is not contained in the esteemed note verbale. The statement in the last
sentence of the note confines itself to the assurance that the
same treatment will be granted by the prize courts of the United
States to German subjects as is given to the nationals of any
other country. In this assurance alone, no guarantee can be
found to the effect that, under certain premises and to a
certain extent, the refund of the necessary expenses for the
prize court proceedings will be granted by the prize courts of
the United States in favor of nationals of any other country in
any future war to be led by the United States.
On the other hand, the investigations of the Department of
Justice, contained in the note verbale,
concerning the method so far employed in the administration of
justice by the prize courts of the United States, make it
apparent that these courts, even though a claim may be allowed,
none the less refuse, as a matter of principle, the refund of
costs and expenses to claimants, if in the case concerned a
“probable cause” for the seizure has been produced. From this it
may be inferred that in all cases of successful claims in which
such a “probable cause” is not found, the prize courts of the
United States make it a rule to allow claimants the refund of
the necessary expenses incurred to them in the proceedings.
If, furthermore, the Department of Justice, in view of the
above-mentioned practice of the American prize courts, declares
it to be impracticable to assure reciprocity with regard to the
refund of the necessary expenses of claimants for all cases of a
successful claim, there would, presumably, be no objection
against the assurance of such reciprocity being restricted to
those cases of successful claims, in which a “probable cause”
for the seizure cannot be found. An assurance restricted in this
manner would, from the point of view of the German prize court
ordinance, be considered a sufficient basis for the declaration
that the reciprocity would be guaranteed in relation with the
United States. For, in Germany, the legal rule does not have the
effect—as the Department of Justice seems to assume—that the
prize courts are under obligation, on the assumption of
reciprocity, in all cases of successful claims without
exception, to place the necessary expenses of claimants to the
debit of the Empire. On the contrary, as is shown from the text
of Section 37, paragraph 3, sentence 2, of the German prize
court ordinance, those cases are also excepted in Germany, in
which sufficient reasons existed under the prize law for the
measure to which the claim refers. It would appear from this
that the legal status as shown to exist for the United States by
the practice thus far employed by its prize courts, does not, in
effect, differ from the adjustment existing for Germany on the
basis of the above-mentioned regulation of the prize court
ordinance.
Under these circumstances, the Imperial Foreign Office requests
the Embassy to draw the attention of the American Government to
the fact that the presumption regarding the status of law in
Germany, from which, according to the contents of the esteemed
note verbale, the Department of
Justice has evidently proceeded, is not correct, and to suggest
whether, after renewed examination of the matter, an assurance
could not be given on the part of America, similar to that of
the other nations mentioned at the beginning of this note.
Berlin
,
November 26,
1915
.
