Foreign Relations of the United States: Diplomatic Papers, 1944, The British Commonwealth and Europe, Volume III

740.00112 European War 1939/9754

The British Embassy to the Department of State

Aide-Mémoire

On October 22nd, 1943, with the approval of the United States Government,⁶³ His Majesty’s Government in the United Kingdom transmitted to the Allied Governments concerned their proposals for the treatment of recaptured vessels formerly belonging to the Allied Governments or their nationals. A copy of the memorandum which was sent to the Allied Governments is enclosed for convenience of reference.

2. Consideration has been given to the parallel question of the way in which cargoes on recaptured vessels should be treated, and it is clearly necessary that His Majesty’s Government should in the very near future be in a position to explain to the Allied Governments concerned their proposals in regard to cargoes.

3. A second memorandum is enclosed⁶⁴ which has been drawn up, with the idea of forming an addendum to the memorandum on ships, setting out the procedure for dealing with cargoes, and His Majesty’s Government would be glad to know as soon as possible whether the United States Government concur in its terms. It is proposed to communicate to the Allied Governments suitable sections of the memorandum comparable with those sections of the original memorandum on ships.

Washington , November 15, 1943.

[Enclosure]

Memorandum on Use and Disposal of Vessels Captured or Found by Allied Forces in the Course of Operations for the Liberation of Europe

Note: Throughout this memorandum the term “vessels” has been used in the widest sense to include all categories, e.g. ocean-going, coastal and inland craft; but the appropriateness of applying the procedure proposed to inland craft may require consideration in the light of the circumstances at the time.

It is suggested that the problem should be considered under two main headings:—

(A) The immediate action to be taken as regards any vessels captured or found in the area of operations; and

(B) Arrangements to be made for their ultimate disposal.

It seems clear that these two matters should be kept entirely distinct both in practice and in any agreements which may be made between the Governments concerned, and that any steps which may be taken or contemplated under (A) above would be without prejudice to steps taken or contemplated under (B).

(A) Immediate action to be taken as regards any vessels captured or found in the area of operations.

1. The objects to be attained are (i) not to impede the Commander-in-Chief or operations in any way; (ii) to put the vessels into useful service as soon as possible; and (iii) to avoid all local disagreement between the various Allied forces who may be concerned in their capture and also between persons or organizations who may be found to be in local control of the vessels. It is suggested that general agreement should be sought for the proposition that the Commander-in-Chief^* acting on the advice of his competent advisers should in the first instance be solely responsible for all clearance and emergency measures in the ports within the area of his control and for immediate operational purposes should have absolute discretion over all vessels whatsoever captured by the forces under his command or found within the area for which he is responsible. This discretion should cover such matters as power to order the destruction of vessels in accordance with military necessity, to order the loading or unloading of vessels, their movements and any other steps necessary to preserve them or put them into use in his own name in so far as he may consider necessary for the immediate operations in progress. The Commander-in-Chief for these purposes would use any powers of military requisition etc., which might be necessary, and neither he nor his Government nor the forces operating under his command would be held responsible in any way for any action or the results of any action taken by him or on his authority apart of course from any question of ultimate liability for payments for the use or for the loss of vessels taken up for his service. Any vessel not immediately required by the Commander-in-Chief in the operational area should be ordered away so that it can be dealt with under (B) below. The Commander-in-Chief should not, however, have power to enter into any general agreements even of a temporary character dealing with the chartering of groups of vessels with any authorities he may find in the liberated territories. Any such matters would have to be dealt with by the shipping authorities. The question as to the time at which it may be appropriate to transfer the primary responsibility for dealing with vessels from the Commander-in-Chief to the shipping authorities of the United Nations in [is] one which will have to be dealt with according to the course of the operations.

(B) Arrangements to be made for the disposal of vessels captured or found in the area of operations.

1. The general principle as regards these would be to ensure that the Government of the country in whose territory they were registered at the time when they fell into the hands of the enemy are recognised as being ultimately entitled to take over and dispose of them, as they think fit. This principle would apply irrespective of the place of capture, or of the constitution, or nationality of the Allied force effecting the actual capture. Thus, if in a Norwegian harbour were captured a formerly British vessel, a formerly Norwegian vessel and a formerly Netherlands vessel, subject to (A) above, the first would ultimately be handed over to the United Kingdom Government, the second to the Norwegian Government and the third to the Netherlands Government, even though the forces actually capturing them were not British, Norwegian or Dutch, but belonging to some other Allied nationality. (There may have to be exceptions to this general principle in cases where the real ownership is in some United Nations’ country other than the country of registration).

2. In connexion with this class of vessels, the following would apply:—

(a) In some cases, ex-Allied vessels will have been placed by the enemy in a Prize Court in which case some form of Prize proceedings will be required to divest the enemy of their title and to revest it in the Allied Government concerned. The necessary proceedings should be brought in a Prize Court of the state to which the ship is to be returned, and failing that in a Prize Court of the state of which the Commander-in-Chief is a national, but action in the latter Prize Court would be without prejudice to the operation of the general principle as to return stated in paragraph 1. In other cases no Prize Court proceedings will be necessary and the machinery of transfer to the Allied Government concerned may be comparatively simple, but Prize Court proceedings as proposed would be taken in any case where immediate action was necessary to bring a vessel into service.

(b) The vessels concerned would be handed back to the Allied Government concerned, and not to the individual nationals or their original owners. It would be for the Allied Government concerned to make the necessary arrangements with their own nationals as regards the ultimate ownership of the vessel (subject to the reservation made at the end of paragraph 1.) This would be the most convenient procedure and in any case may be necessary because of the existence of Allied Governmental decrees conferring some form of title to these ships upon the Allied Government.

(c) Each Allied Government should, in respect of any vessel handed over to it under the foregoing machinery:—

(i) agree to make the vessels available for the war effort of the United Nations in accordance with the arrangements then existing,

(ii) undertake to accept responsibility for all liabilities in respect of the vessel, and

(iii) agree to indemnify the other Allied Governments against any claims made against them or any one or more of them arising out of the handing over thereof.

(d) In the case of vessels in respect of which total losses have been paid by underwriters, so that the underwriters have become the owners or are entitled to claim ownership, the return to a Government under the arrangements contemplated in this memorandum can only be made after satisfaction of the claims of the underwriters. This would apply whether the underwriters be an Allied Government or private underwriters.

The foregoing proposals deal exclusively with ships formerly belonging to the Allied Governments or their nationals.

The treatment to be accorded to enemy and neutral owned ships recaptured in similar circumstances will require further consideration at some future date.

It is not, however, considered that this need stand in the way of immediate agreement in regard to recaptured Allied ships.

London, 22 October, 1943.

63. For explanation of approval, see second paragraph of memorandum to the British Embassy, infra.
64. Not printed.
65. If for any operation or series of operations there is a Supreme Commander-in-Chief then he is the Commander-in-Chief for the purpose of this memorandum. If, however, the Naval Command is separate from the Land Command, then for the purposes of this memorandum the Naval Commander-in-Chief is the Commander-in-Chief as regards ocean-going and coastal vessels and the Land Commander-in-Chief as regards all other vessels. [Footnote in the original.]