Papers Relating to the Foreign Relations of the United States, 1917, Supplement 1, The World War

File No. 763.72/3443

The Ambassador in Great Britain ( Page) to the Secretary of State

No. 5822

London, February 16, 1917.
[Received March 1.]

Sir: I have the honor to enclose herewith, for the information of the Department, three parliamentary white papers comprising (No. 4) “Reply to the German Peace Note, communicated by the French Government on behalf of the Allied Powers to the United States Ambassador in Paris, December 30, 1916;” (No. 5) “Reply of the Allied Governments to the Note communicated by the United States Ambassador on December 20, 1916;”¹ and (No. 6) “Report drawn up by the Committee on the Administration of the Order in Council of March 1916 (1916).

I have [etc.]

Walter Hines Page

[Enclosure]

Report drawn up by the Committee on the Administration of the Order in Council of March 1915, addressed to the Secretary of State for Foreign Affairs, the First Lord of the Admiralty, and the President of the Board of Trade, and presented to Parliament, February 1917

Sirs: The committee appointed to enquire whether any avoidable delay is caused by the methods hitherto adopted for dealing with ships and cargoes brought into British ports under the order in council of the 11th March, 1915, and to make such general recommendations as they might think fit for improving such methods, have completed their investigation and have now the honour to submit the following report:

1. Nature and Scope of Enquiry

Neutral vessels are brought into British ports under the order in council of the 11th March, 1915, in order that the belligerent may be satisfied as to the character, ownership, destination, or origin of the cargo which they carry. Whether any delay caused by the methods employed in dealing with ships and cargoes so brought in is or is not avoidable must be determined by reference to the delay which is inseparable from the effective exercise of this right.

That its exercise must involve some delay is plain. This would be true even if the belligerent were to rely exclusively on the older practice of search at sea. But we are satisfied upon the evidence that the maintenance of this practice is neither possible, in view of the increased size of ships, nor, in view of the conduct of enemy submarines, desirable in the interests of neutral lives and property.

Not only so, but to exercise the right solely by means of the older practice would be tantamount to a complete abandonment of the right itself. The documents carried on a ship no longer furnish conclusive, or necessarily even presumptive, evidence of the true character, ownership, or destination of the cargo. The great increase of facilities by which goods can be circuitously conveyed to or from an enemy country, and the existence of other and speedier means of communication between traders than the ship carrying the goods, afford almost infinite opportunity for concealment. The documents which would disclose the true nature of the transaction, the contracts, correspondence, and cables may pass independently. Unless, therefore, the neutral is provided with better credentials than the documents carried by the ship, the evidence of the real facts has to be sought for by the belligerent from sources outside the ship.

Some alteration, then, not of principle but of practice, became necessary; and the machinery for carrying into effect the order in council of the 11th March, 1915, is the modern equivalent of the older methods. In order to determine whether the delays resulting from the modern methods can be diminished or avoided, we have considered it our duty to investigate, point by point, the whole of this machinery, and have examined witnesses from all the departments concerned.

2. Methods Employed in Dealing with Ships and Cargoes under the Order in Council, March 11, 1915

(1) Visit at Sea.—All ships intercepted by the patrolling squadrons are visited, the time occupied in so doing being about three hours, except in heavy weather, when delay occurs till the weather moderates sufficiently to permit of boarding. On a decision being taken to send the ship in, she is despatched under an armed guard to the most convenient port, called a port of detention; in the case of ships going “northabout,” for the most part to Kirkwall or Lerwick, but sometimes, if westward bound, to Stornoway, or very occasionally to Ardrossan. Ships going “southabout” are detained in the Downs or sent into Falmouth or Dartmouth.

(2) Visit and Search at the Port of Detention.—On arrival at a port of detention the ship is visited by the customs officers, who examine the manifest, bills of lading, and any other relevant documents which she may be carrying, and prepare a detailed analysis of her whole cargo. Ships detained in the Downs are visited and reported upon in the same Way by the naval authorities.

The question whether cargo is to be discharged or released has to be determined by different authorities in the case of westward and eastward bound ships, and the procedure by which information as to their cargoes is transmitted also differs slightly. In the case of westward-bound ships, the analysis of the cargo is sent to the Admiralty, the Foreign Office, and the Board of Customs. If the ship is proceeding southabout and the cargo comprises less than 25 items, the analysis is sent by telegram, and if more than 25 items, by train. If the ship is proceeding northabout, the analysis, whatever the number of items, is sent by telegram. In the case of eastward-bound ships the analysis is sent to the Admiralty, the Foreign Office, the Board of Customs, and the War Trade Intelligence Department, invariably by telegram.

3. War Trade Intelligence Department (Eastward-Bound Ships)

In the War Trade Intelligence Department every kind of information which can in any way assist in disclosing the real destination and ownership of cargoes, gathered from various sources, of which cables, wireless messages, confidential reports, and intercepted letters form part, has been indexed, collated, and focussed as it came to hand. A separate file or dossier is kept for individual ships and traders, while selected members of the staff make a special study of all facts relating to particular commodities or groups of commodities. The Department is thus ready to prepare a report embodying all information relevant to each item in the list as soon as it receives the detailed analysis of the cargo supplied by the customs officers, or, in the case of slower ships, the manifest forwarded independently by the British consul.

The time occupied in the preparation of this report varies, of course, with the number of separate items comprised in the cargo. Where the manifest has reached this country in advance of the ship, all the necessary work can be done before her arrival, and in such cases the report is made at once. When the first intimation of the nature of the cargo is contained in the customs cable, this is impossible. But as a general rule the organisation already indicated enables the War Trade Intelligence Department to furnish its report upon a customs cable received in the morning by 3 o’clock the same day. Even in exceptional cases a delay of 24 hours is rarely exceeded.

4. The Contraband Committee

The report by the War Trade Intelligence Department upon cargoes eastward bound is then put before the Contraband Committee, a committee composed of a representative of the Admiralty, the Foreign Office, and the Board of Trade, and now presided over by Mr. Ernest Pollock, K. C., M. P. The work of this committee is both onerous and responsible, and its urgency necessitates daily sittings. Its functions are to consider promptly what is the real ownership or destination of the cargo, to place the goods in the prize court only if there is reasonable ground for concluding that they are of enemy ownership or destination, to detain them for further investigation in cases of doubt, and in all other cases to secure their release at the earliest possible moment, without the delay and formality of prize-court proceedings.

In the course of their enquiry, the Contraband Committee have to determine whether the cargo in question is covered by any of the agreements which have been made with traders or shipowners, collectively or individually.

These agreements vary much in scope, but all result in lessening the inconveniences arising from the exercise of belligerent rights. There are, for instance, undertakings from neutral shipowners or consignees, either general or relating to specific shipments, for the return of the goods to this country in consideration of the ship being allowed to proceed without discharging here; undertakings from traders that goods shall not reach or have not originated with the enemy; undertakings to comply with restrictive conditions in consideration of bunkering facilities; or, again, so-called rationing agreements, which assure free passage to such quantities of particular commodities as are bona fide required for the use of the neutral country to which they are consigned. These have recently been supplemented by a scheme of proposed bookings or letters of assurance, under which shipments can be submitted to and sanctioned in advance by the committee.

The advantages of these arrangements are twofold. They shorten and facilitate the labours of the Contraband Committee and, what is vastly more important, they secure for neutrals the speedy release of ship and cargo.

In cases not covered by any agreement, the committee, upon the evidence before them, and in the light of the experience they have gained in dealing with other cargoes, are generally in a position to determine at once whether the cargo is to be released or detained in whole or in part. But if the available evidence, while suggesting an enemy destination, is insufficient for them to act upon, they obtain through the Foreign Office, where their meetings take place, such further information as can be supplied by our diplomatic or consular services in the country to which the goods are ostensibly consigned. Unless any such further enquiries are necessary, the decisions of the Contraband Committee are arrived at forthwith, and the whole of each day’s business is disposed of before the committee adjourns.

5. Enemy Exports Committee (Westward-Bound Ships)

In the case of westward-bound ships, it is the origin rather than the destination of the cargo upon which, apart from questions of ownership, the seizure depends. The decision of this question rests with the Enemy Exports Committee. This committee sits every day at the Foreign Office. It is composed of representatives of the Foreign Office, Admiralty, and Board of Trade, and is presided over by the Right Honourable Commander Leverton Harris, R. N. V. R., M. P.¹

The methods of this committee are substantially identical with those of the Contraband Committee, but its labours are much simplified by the fact that it has been found possible, by the use of certificates of origin and licences, to give free passage to the bulk of westbound traffic.

The best evidence, perhaps, of the advantages of such arrangements in abridging delay is that during the last six months this committee has ordered only some ten ships into port for discharge, while many ships have been allowed to proceed without their papers coming before the committee at all.

Even in cases where the ship’s papers are laid before the committee for consideration, a delay is not necessarily involved. Westward-bound ships often, and liners almost invariably, call of their own accord at a United port. In such cases their papers are taken off in the Downs or at Kirkwall as the case may be, and, if in order, are transmitted to meet the ship at her port of call.

6. Admiralty Marshal’s Department

If it is decided to release a ship, instructions are sent by telegram either to the Board of Customs, or to the naval authorities in the Downs, and she is allowed to proceed forthwith. If it is decided that cargo is to be seized, instructions to that effect are similarly given to the Admiralty Marshal as well as to the Board of Customs, particularising the items which are to be discharged. The Admiralty Marshal then telegraphs the necessary orders to the customs officers at the port at which the ship is lying, who, acting on behalf of the Marshal, make the formal affidavit of seizure.

It is to be noted that, at this stage and in all subsequent dealings with cargo which has been ordered to be discharged, the customs officers at the various ports act as agents for the Admiralty Marshal.

7. Committee for Diversion of Ships in War Time

Simultaneously with the instructions to his agents, the Admiralty Marshal gives the Admiralty Committee for the Diversion of Ships in War Time particulars of the ship and of the quantity and nature of the cargo to be discharged.

This committee, by a system of daily returns, keeps in touch with the conditions prevailing in the various ports, and assigns to the ship the most suitable port for her discharge. This decision involves many considerations. Regard must be had to the size and draught of the ship, to the facilities of the port for dealing with the particular cargo to be discharged, to the supply of labour, and to the accessibility of markets, particularly if the cargo is perishable. The materials for such a decision are all before the committee in their daily advices, and they have the additional advantage that their secretary is a member of the Port and Transit Committee which was created to enquire into “all the difficulties and congestion arising at ports in the United Kingdom and to regulate the work and traffic thereat.” The report which this committee receives, disclosing fully the position at all ports in regard to berths, labour, &c, is, through the secretary, at the disposal of the Committee for the Diversion of Ships. The selection of a port, however, is not finally made until the port authority has been communicated with by telephone, and it has been definitely ascertained that the cargo can be dealt with. Thus the committee confirm the correctness of their own decision and the port authorities on their side are informed of all that, it is material for them to know before the ship starts from the port of detention.

It has occasionally happened on Saturday afternoons or on Sundays that there has been no responsible person at the port of discharge to give the assurance that the ship could be dealt with if ordered there, and a ship has consequently remained at the port of detention until such assurance could be obtained. This appears to us to be a defect in practice rather than in method. Such occurrences have been infrequent and the remedy is obvious.

Subject to this exception and to the fact that application has sometimes to be made to many ports without success, the choice is made promptly. The name of the port is forthwith communicated to the Admiralty Marshal, who now has jurisdiction over the cargo, and by him to his agents.

8. Port of Discharge

A ship which has been required to discharge is taken under an armed guard to the designated port and there awaits her turn. How soon she can be dealt with depends upon the degree of congestion prevailing in the port and the supply of labour available. Undoubtedly these factors have not been such as to favour a speedy discharge; but we find that every available facility has been provided and, unless preferential treatment is to be accorded to diverted ships, quicker despatch is not feasible.

If the ship has no agent at the port to which she is ordered, she may be under the disadvantage that no arrangements can be made for discharge before her arrival. In practice vessels have lost, perhaps, a tide from this cause, but the delay is due rather to the ship than to the methods upon which we are reporting.

Having discharged the required items of her cargo, the ship has not to await a further reference to the committee or the Admiralty Marshal, but obtains her clearance forthwith.

Subsequent evidence may of course cast suspicion on further items of the cargo, but should their discharge involve the removal of the hatches a second time, the practice is to give the ship the benefit of the doubt.

9. Procurator-General’s Department and Prize Court

We have traced the dealings with the suspect cargo down to the time of its discharge from the ship. In all subsequent proceedings the Procurator-General’s Department and the prize court are alone concerned. The affidavit of seizure having already been made, the first step taken by the Procurator-General before preparing the case for trial is, in the interest of claimants, to give notice of the seizure to the consuls of those countries whose nationals are concerned.

The goods have been put into the prize court on the authority of the Contraband Committee or of the Enemy Export Committee. The necessity for prompt decision by these committees renders it imperative that they should act on evidence less formal and conclusive than that which is required in a court of law. While the materials before them may raise so strong a presumptive case against the goods as amply to justify a provisional detention, the preparation of the formal case and of the evidence to be put before the prize court necessarily involves a much more detailed and comprehensive enquiry. The Procurator-General, who is also the Treasury Solicitor, controls the whole of the prize-court work. The actual litigation is conducted by the law-courts branch of his Department, which is in touch both with the Contraband Committee and the War Trade Intelligence Department. A representative attends the meetings of the Contraband Committee, and a branch of the Department works in the War Trade Intelligence Department. This branch receives from the War Trade Intelligence Department its report to the Contraband Committee, and, from the representative attending the Contraband Committee, a report of the grounds for the committee’s decisions. Thus the Procurator-General’s Department has easy access to the materials assembled in the War Trade Intelligence Department, and is in a position to carry the enquiry beyond the point at which it was presented to the Contraband Committee.

The cases to be presented are of great complexity; the essential documents have generally to be procured from other countries, often after much difficulty and delay, and since the possibility of fabrication can not be ignored, the genuineness of the documents when forthcoming may have to be tested by further investigation.

If, in the course of preparing the case, the Procurator-General is satisfied that he is not likely to succeed ultimately, the court will release the goods upon his application. We would point out that any undue delay can be controlled by an application, on the part of the claimant, to the court, and that such applications have been very few. On the other hand, applications by claimants for postponement of trial have been numerous.

With regard to the prize court itself, we find that it is well able to deal with all, and more than all, the cases ready for trial. Not only are there no arrears, but the court disposes of its business by sitting three or four days a Week.

Summary

Such is the system now in use. Described in detail it may seem elaborate and complicated, but the situation which it has been framed to meet is many-sided. In practice it works smoothly. It originated in the fact that methods of search sanctioned by usage in the past are now impracticable, and that the evidence which, in the shape of documents carried on the ship, the neutral shipowner and trader were required to provide, has been robbed by changed conditions of much of its value. Other evidence, therefore, or guaranties must be forthcoming if the rights of the belligerent are to be preserved. The system has been so constructed as to furnish facilities by which, if he is disposed to avail himself of them, the neutral can provide such evidence or guaranties, and so be assured of the minimum disturbance of his trade.

The present system has been built up gradually as the need for it arose. On the outbreak of the war there was little more than the nucleus of an organisation for dealing even with prize. It was inadequate for this purpose owing to the altered conditions to which we have referred, and still more so for coping with the larger situation created by the order in council of the 11th March, 1915. For these reasons not only has the old organisation been expanded, but the new and supplemental machinery, which we have detailed, has been set up. So considerable has been the change that it would be truer to say that a new organisation had to be created to meet the new conditions than that an old and inappropriate one has been applied to work for which it was never intended. A ruling consideration throughout has been the desire to impose on neutral shipping as little inconvenience as is consistent with the interception of the enemy’s sea-borne commerce, and it has been very apparent to us in the course of our investigations how steadily the officials concerned have kept this object in view.

It is quite clear that by the establishment of the Contraband and Enemy Export Committees many ships which would otherwise have to be brought into port for discharge are enabled, after a short delay, to proceed upon their course. The committees act as courts of preliminary enquiry, sift the available evidence, and at once release the vessel when the prima facie case is not sufficiently strong. In the absence of such committee, all vessels stopped and all goods brought in would have to be placed in the prize court by the Procurator-General and adjudicated upon by the court.

It is evident from the very nature of the work both of the War Trade Intelligence Department and of the Contraband and Enemy Export Committees, that it tends to become both more expeditious and more effective as their experience and stock of information increase. The time occupied in collating materials and considering them can not, in our opinion, be fairly described as delay, much less avoidable delay. We have no evidence that any increase in the staff of the War Trade Intelligence Department would be of substantial advantage. The work appears to be decentralised as far as it safely can be, having regard to the fact that it depends in a peculiar degree for its efficiency upon the accumulation of experience by individuals. As a matter of fact, the Department is able to supply material to the Contraband Committee as quickly as that committee can deal with it.

Similar considerations apply to the Contraband Committee, and it would, in our view, lose efficiency if it were to sit in two or more divisions.

While the work of the Enemy Export Committee is comparable to that of the Contraband Committee, the questions for its determination are so different that the two bodies could not advantageously be merged in one.

The materials for the decisions of the Enemy Exports Committee are derived from the same source as those of the War Intelligence Department, and are collated and indexed, on a similar system, but by a separate staff. There does appear, therefore, in this respect to be a certain amount of duplication of effort, though the information obtained by the War Intelligence Department covers a far wider field than that required by the Enemy Exports Committee. No delay, however, is imposed upon ships or cargoes by this overlapping, and we have therefore not considered how far, if at all, it can be avoided.

It was not to be expected that a system which has developed as the necessity arose should have worked smoothly and well from the beginning. Until it was complete, there were undoubtedly stages at which delay took place. Ships, for instance, were at first kept an undue time at Kirkwall or Lerwick awaiting the visit of the customs officers. This was due to the shortage of staff, and to the inexperience of the customs officers at that time in the new work required of them. Again, there appears to have been insufficient connection between the Contraband Committee and the Procurator-General’s Department, and it would perhaps be true to say generally that there was some lack of co-ordination between the Departments, and that information did not pass freely from one to the other. But these defects were remedied at an early stage.

The congestion at the ports of discharge, which is a persistent source of delay, is consequent upon a state of war. So long as that congestion exists, its effects must be felt by ships brought in under the order in council, as by all others; but they are dealt with in their turn and given at least equal facilities.

Owing to the geographical position of such neutral countries as Holland and Denmark, Norway and Sweden, the task of discriminating between cargoes of enemy or of neutral destination must be beset with difficulties. The various agreements concluded have done much to lessen inconvenience and promote co-operation. As a result of these agreements vessels are detained, either on the high seas or at the port of detention, only for a time sufficient to establish their credentials; they are not called upon to discharge any cargo, and thus not only save their own time, but assist the discharge of other vessels by lessening the congestion at ports. It is, of course, for neutrals themselves to determine whether the restrictions imposed by these agreements are not more than counterbalanced by the advantages which they confer. However this may be, it is, in our opinion, plain that their more general acceptance would still further lessen the occasions of delay.

It is a matter for remark that although the existence and proceedings of this committee have been advertised in the press of this country and of neutral countries, no specific cases of delay have been brought before us by complainants. It may not be unfair to suggest that when complaints of delay have been made they arise rather from objections to the provisions of the order in council of the 11th March, 1915, than to the machinery by which those provisions are enforced.

We have been unable to discover that, consistently with the effective exercise of belligerent rights, there is any avoidable delay caused by the existing methods of dealing with ships and cargoes brought into port under the order in council of the 11th March, 1915, and we do not offer any suggestions for the improvements of those methods.

In conclusion, we should like to record our appreciation of the zeal and ability of our secretary, the Hon. S. O. Henn Collins, and our assistant-secretary, Sub-Lieutenant Sir F. Newnes, Bart., R. N. V. R.

• Peel, Chairman
• Kenneth S. Anderson
• B. A. Cohen
• K. Wallace Elmslie
• Almeric Paget

S. O. Henn Collins, Secretary

Frank Newnes, Sub-Lieutenant, R. N. V. R.,
Assistant Secretary

1. Enclosures No. 4 and No. 5 not printed. See Foreign Relations, 1916, Supplement, pp. 124–125; also ante, pp. 6–8.
1. Sir Alfred Bateman, K. C. M. G., succeeded Commander Leverton Harris as chairman in June, 1916.