File No. 763.72112/3269
The Consul General at London (Skinner) to the Secretary of State
[Received January 2, 1917.]
Sir: I have the honor to acknowledge the receipt of the Department’s cabled instruction of December 16 inquiring whether a judicial decision had been given respecting the validity in international law of the order in council whereunder the goods presumably destined for belligerent countries may be detained in the United Kingdom. This point is dealt with in the prize court judgment handed down on April 14, 1916, in the case of the Swedish ship Stigstad, a print of which I am enclosing herewith.1
It is an interesting circumstance that although the British Government has appointed a Minister of Blockade, although a blockade in northern European waters is frequently referred to in official correspondence, and in popular discussion of current topics, legally speaking there is no blockade, and in dealing with questions arising out of the detention of ships and cargo the president of the prize court has taken particular pains to indicate the difference between the measures enforced as reprisals, and those that would be enforced if a blockade should be attempted. The detention of non-contraband goods forwarded, presumably, to belligerent countries, is enforced by virtue of the order in council of March 11, 1915. This order in council is officially entitled “Reprisals Restricting German Commerce,” and the paragraph under which non-contraband goods are detained provides for this restriction as follows:
Every merchant vessel which sailed from her port of departure after the 1st March, 1915, on her way to a port other than a German port, carrying goods with an enemy destination, or which are enemy property, may be required to discharge such goods in a British or Allied port.
The legality in international law of this much discussed order in council appears not to have been dealt With in the prize court until April 14, 1916, following a decision of the Privy Council handed down on April 7, 1916, in the case of the Swedish ship Zamora. In the Zamora case, which reached the Privy Council on appeal from the prize court, the Procurator General had sought for a decree that the ship should be condemned on the ground that she was carrying contraband “or in the alternative, for the order for the detention and/or sale of the cargo on the ground that the steamship sailed from a port other than a German port after March 1, 1915, having on board cargo which had an enemy destination, or was enemy property.” While in the Zamora case it was decided chiefly that a prize court administers international law and not municipal law, and is not bound by executive orders of the King in Council, an important light was also shed upon the order in council of March 11, 1915, in the following paragraph of the judgment.
- Further, the Prize Court will take judicial notice of every Order in Council material to the consideration of matters with which it has to deal, and will give the utmost weight and importance to every such Order, short of treating [Page 493] it as an authoritative and binding declaration of law. 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 shew that the blockade is ineffective and therefore unlawful. An Order authorising reprisals will be conclusive as to the facts which are recited as shewing that a case for reprisals exists, and will have due weight as shewing 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. Further, it cannot be assumed, until there be a decision of the Prize Court to that effect, that any Executive Order is contrary to law, and all such Orders, if acquiesced in and not declared to be illegal, will, in the course of time, be themselves evidence by which international law and usage may be established. See Wheaton’s International Law (4th English ed.), pages 25, 26.
The Stigstad case was decided in the prize court on April 14, 1916, the cargo of this ship having been detained exclusively upon the ground that it was forwarded in violation of the retaliatory order, article 3, of March 11, 1915. The owners of the ship appeared in court to claim compensation for the detention of their vessel while the cargo was being discharged. In the course of the proceedings the following discussion occurred:
Mr. Miller : In the case of a blockade anyone attempting to run it knows what the penalty is for so doing.
The President remarked that this vessel sailed after the Order in Council was published.
Mr. Miller said it would be an intolerable burden if a shipowner of a neutral country was required to ascertain whether any portion of his cargo was ultimately intended for an enemy destination, which he might have no means of knowing.
The President remarked that it was a serious matter if the contention was, as Mr. Miller suggested, that the Order in Council was invalid “because it inconvenienced neutrals.” In blockade the result to innocent shipowners was Still more serious—they lost their ships altogether.
The president, in giving judgment, again pointed out the difference between the effect of the reprisals order and an order establishing a blockade, quoted the decision of the Privy Council in the Zamora case setting forth that any order in council authorizing reprisals will be conclusive as to the facts which are recited as showing that cause for reprisals existed, and finally reached the conclusion that the order in council was lawful, and that he must obey it. The following is the concluding paragraph of the judgment:
In the result I am of opinion that the Order in Council is lawful as an Order enjoining reprisals in accordance with the principles of international law. The result, in my opinion, is that, whatever delay or inconvenience may inevitably or necessarily be caused, as in this case, neutrals must suffer that delay and that inconvenience, as the consequence of the exercise of legitimate belligerent rights on the part of this country. I repeat that I should have been glad to have had fuller arguments, and to have had time to refer to the authorities and put my reasons into better form; but the matter being so important, I think it right to pronounce my opinion now that there is nothing invalid in this Order in Council, and that it is an Order to which this Court ought to and will give effect.
The Procurator General and other British authorities regard the decision in the Stigstad case as meeting every attack upon the legality of the order in council of March 11, 1915, and propose to continue to do so unless the judgment should be reversed in the Privy Council. [Page 494] Appeal has been made to the Privy Council and it is expected that the case will be heard some time in February next.
It is not entirely without interest in this connection to mention that in the course of the hearing of the Zamora case in which Sir Robert Finlay, now Lord Chancellor, appeared for the appellants, he made the following claims:
The question is whether there is power to requisition before the condemnation. . . . The rules cannot supersede the provisions of the statute. . . . A neutral has a right to carry on the seas unless the cargo is contraband, or is destined for a hostile port. In this case the cargo was consigned to a Swedish port, and if the case had been tried the question would have been whether the intention was that it should ultimately find its way to Germany, or whether it was bona fide the property of Swedish subjects. . . . The rules are only rules of practice or procedure. . . . The destination to an enemy’s port is essential, and this copper could only be condemned on that ground, of which, there is no proof. The burden of proof is on the captor. The assumption that as soon as a neutral vessel is brought into port she is subject to requisition is erroneous. . . . The Order in Council must be construed so as not to violate the principle of international law.
I have [etc.]
- Not printed.↩