File No. 300.115/8039
[Enclosure—Extract]
Judgment delivered by Lord Parker for the
Judicial Committee of the Privy Council, April 7, 1916, in
the appeal from the prize court’s decision in the case of
the “Zamora,”2
printed in “Lloyd’s List,” April 10
. . . In the first place, all those matters upon which the Court
is authorised to proceed are, or arise out of, acts done by the
Sovereign power in right of war. It follows that the King must
directly or indirectly be a party to all proceedings in a Court
of Prize. In such a Court his position is in fact the same as in
the ordinary Courts of the realm, upon a petition of right which
has been duly fiated. Rights based on sovereignty are waived and
the Crown for most purposes accepts the position of an ordinary
litigant. A Prize Court must,
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of course, deal judicially with all
questions which come before it for determination, and it would
be impossible for it to act judicially if it were found to take
its orders from one of the parties to the proceedings.
In the second place, the law which the Prize Court is to
administer is not the national, or, as it is sometimes called,
the municipal law, but the law of nations—in other words,
International Law. It is worth while dwelling for a moment on
this distinction. Of course, the Prize Court is a municipal
Court, and its decrees and orders owe their validity to
municipal law. The law it enforces may therefore, in one sense,
be considered a branch of municipal law. Nevertheless, the
distinction between municipal and International Law is well
defined.
A Court which administers municipal law is bound by and gives
effect to the law as laid down by the Sovereign State which
calls it into being. It need inquire only what that law is. But
a Court which administers International Law must ascertain and
give effect to a law which is not laid down by any particular
State, but originates in the practice and usage long observed by
civilised nations in their relations towards each other, or in
express international agreement.
It is obvious that, if and so far as a Court of Prize in this
country is bound by or gives effect to orders of the King in
Council purporting to prescribe or alter the International Law,
it is administering, not International but municipal law, for an
exercise of the Prerogative can not impose legal obligation on
anyone outside the King’s Dominions who is not the King’s
subject If an Order in Council were binding on the Prize Court,
such Court might be compelled to act contrary to the express
terms of the Commission from which it derived its
jurisdiction.
There is yet another consideration, which points to the same
conclusion. The acts of a belligerent Power in right of war are
not justifiable in its own Courts unless such Power, as a matter
of grace, submit to their jurisdiction. Still less are such acts
justifiable in the Courts of any other Power.
As is said by Mr. Justice Story in the case
of the Invincible (2 Gall. 43, 1814)—
acts done under the authority of one sovereign can never be
subject to the revision of the tribunals of another
sovereign, and the parties to such acts are hot responsible
therefor in their individual capacity.
It follows that but for the existence of Courts of Prize no one
aggrieved by the acts of a belligerent Power in times of war
could obtain redress otherwise than through diplomatic channels,
and at the risk of disturbing international amity. An
appropriate remedy is, however, provided by the fact that,
according to International Law, every belligerent Power must
appoint and submit to the jurisdiction of a Prize Court, to
which any person aggrieved has access, and which administers
International, as opposed to municipal, law—a law which is
theoretically the same, whether the Court which administers it
is constituted under the municipal law of the belligerent Power
or of the sovereign of the person aggrieved, and is equally
binding on both parties to the litigation.
It has long been well settled by diplomatic usage that, in view
of the remedy thus afforded, a neutral aggrieved by any act of a
belligerent Power cognisable in a Court of Prize ought, before
resorting to diplomatic intervention, to exhaust his remedies in
the Prize Courts of the belligerent power. A case for such
intervention arises only if the decisions of these Courts are
such as to amount to a gross miscarriage of justice.
It is obvious, however, that the reason for this rule of
diplomacy would entirely vanish if a Court of Prize, while
nominally administering a law of international obligation, were
in reality acting under the direction of the executive of the
belligerent Power.
It can not, of course, be disputed that a Prize Court, like any
other Court, is bound by the legislative enactments of its own
Sovereign State. A British Prize Court would certainly be bound
by Acts of the Imperial Legislature. But it is none the less
true that if the Imperial Legislature passed an Act the
provisions of which were inconsistent with the Law of Nations,
the Prize Court, in giving effect to such provisions, would no
longer be administering International Law. It would in the field
covered by such provisions be deprived of its proper function as
a Prize Court.
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Even if the provisions of the Act were merely declaratory of the
International Law, the authority of the Court as an interpreter
of the Law of Nations would be thereby materially weakened, for
no one could say whether its decisions were based on a due
consideration of international obligations or on the binding
nature of the Act itself. The fact, however, that the Prize
Courts in this country would be bound by Acts of the Imperial
Legislature affords no ground for arguing that they are bound by
the executive Orders of the King in Council. . . .
There are two further points requiring notice in this part of the
case. The first arises on the argument addressed to the Board by
the Solicitor General. It may be, he said, that the Court would
not be bound by an Order in Council which is manifestly contrary
to the established rules of International Law, but there are
regions in which such law is imperfectly determined and defined,
and when this is so, it would not be unreasonable to hold that
the Court should subordinate its own opinion to the directions
of the executive.
This argument is open to the same objection as the argument of
the Attorney General. If the Court is to decide judicially in
accordance with what it conceives to be the law of nations it
cannot, even in doubtful cases, take its directions from the
Crown, which is a party to the proceedings. It must determine
what the law is according to the best of its ability, and its
view, with whatever hesitation it be arrived at, must prevail
over any executive order.
Only in this way can it fulfil its functions as a Prize Court and
justify the confidence which other nations have hitherto placed
in its decisions.
The second point requiring notice is this. It does not follow
that because Orders in Council cannot prescribe or alter the law
to be administered by the Prize Court such Court will ignore
them entirely. . . .
Thus an Order declaring a blockade will, prima
facie, justify the capture and condemnation of vessels
attempting to enter the blockaded ports, but will not preclude
evidence to show that the blockade is ineffective, and,
therefore, unlawful. An Order authorising reprisals will be
conclusive as to the facts which are recited as showing that a
case for reprisals exists, and will have due weight as showing
what, in the opinion of his Majesty’s advisers, are the best or
only means of meeting the emergency; but this will not preclude
the right of any party aggrieved to contend, or the right of the
Court to hold, that these means are unlawful, as entailing on
neutrals a degree of inconvenience unreasonable, considering all
the circumstances of the case. . . .
A belligerent Power has by International Law the right to
requisition vessels or goods in the custody of its Prize Court
pending a decision of the question whether they should be
condemned or released, but such right is subject to certain
limitations. First, the vessel of goods in question must be
urgently required for use in connection with the defence of the
realm, the prosecution of the war, or other matters involving
national security. Secondly, there must be a real question to be
tried so that it would be improper to order an immediate
release. And, thirdly, the right must be enforced by application
to the Prize Court which must determine judicially whether under
the particular circumstances of the case the right is
exercisable. ...
If the captors do not promptly bring in the property seized for
adjudication, the Court will, at the instance of any party
aggrieved, compel them so to do. From the moment of seizure the
rights of all parties are governed by International Law. It was
suggested in argument that a vessel brought into harbour for
search might, before seizure, be requisitioned under the
municipal law. This point, if it ever arises, would fall to be
decided by a Court administering municipal law, but from the
point of view of International Law it would be a misfortune if
the practice of bringing a vessel into harbour for the purpose
of search—a practice which is justifiable because search at sea
is impossible under the conditions of modern warfare—were held
to give rise to rights which could not arise if the search took
place at sea.
It remains to apply what has been said to the present case. In
their Lord ships’ opinion the Order appealed from was wrong, not
because, as contended by the appellants, there is by
International Law no right at all to requisition ships or goods
in the custody of the Court, but because the Judge had before
him no satisfactory evidence that such a right was exercisable.
...
Their Lordships, therefore, have come to the conclusion that, in
proceedings to which under the new practice the Crown instead of
the actual captors is a party, both damages and costs may, in a
proper case, be awarded against the Crown or the officer who, in
such proceedings, represents the Crown.
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The proper course, therefore, in the present case is to declare
that upon the evidence before the President he was not justified
in making the Order the subject of this appeal, and to give the
appellants leave, in the event of their ultimately succeeding in
the proceedings for condemnation, to apply to the Court below
for such damage, if any, as they may have sustained by reason of
the Order and what has been done under it.
Their Lordships will humbly advise his Majesty accordingly, but
inasmuch as the case put forward by the appellants has succeeded
in part only, they do not think that any order should be made as
to costs of the appeal.
