"Breaking bulk" prior to delivery to prize court LIABILITY FOR BREACH OF CAPTOR'S DUTIES 8642 A German vessel captured in the Red Sea on August 15, 1914 was taken to Alexandria on August 20 and handed over by the captor to a British detaining officer. About September 15 the cargo was discharged, and a British-owned portion was placed in a customs warehouse. The British Prize Court for Egypt was not created until September 18 and did not begin functioning until the middle of October of that year. Prize courts were functioning in Gibraltar and Malta. On October 17, 1914 the goods in the customs warehouse were destroyed by fire. The British owners of the goods claimed reimbursement, in proceedings against the captor and the detaining officer, on the ground that the latter as agent for the former had improperly "broken bulk" before delivering the vessel with its cargo to the Prize Court. II Br. & Col. Pr. Cas. 451 (1916). On appeal from the decision holding the officers liable the Judicial Committee of the Privy Council reversed the judgment. Lord Parker said: The title of the Crown to property seized as prize is not complete without adjudication in its favour by the Prize Court. The first duty of the Crown is, therefore, to preserve the property in order that it may be dealt with as the Prize Court may determine. If the property seized be a ship with cargo on board, the cargo should not (except under special circumstances) be disturbed until the ship be brought into a convenient port. The duty of the Crown to bring the ship into a convenient port without breaking bulk is generally discharged by the captors, and is sometimes referred to as the duty of the captors makes no difference to the owners of ship or cargo by whom the duty is discharged. For any loss occasioned by a breach of the duty the Crown may be made liable through the executive officer responsible for the breach or some other proper officer. As a matter of practice it is quite common for the captors, under the orders of their superior officer, to hand the prize to some other officer of the Crown to be taken into a convenient port, and it is impossible to hold that such practice is contrary to international law. But it The convenience of the port to which a prize is brought in for adjudication must be determined by all the circumstances of the case. So far as their Lordships can discover, there is no generally accepted rule of international law as to the officer in whose custody prizes should be placed when brought into a convenient port pending adjudication by the Prize Court. Inasmuch as the duty of the Crown to preserve the captured property subsists as well after as before the ship is brought into port, the matter is of little importance to the owners of the captured ship or cargo, Their Lordships cannot accept the contention that the necessity of an application to the Court before landing a prize cargo is so clearly a rule of international law that a neglect to make the application must in all cases render the officer responsible for the landing liable for a breach of duty. Such a rule would not be in the interests of the owners of the captured property. Further, their Lordships are of opinion that the delay, necessarily incident to an application to the High Court in this country, for leave to land the cargo was, under the circumstances, a sufficient justification for landing the cargo without obtaining such leave. But even if Lieutenant Grogan were guilty of a breach of duty in not obtaining the leave of the Prize Court to discharge the cargo, it is difficult to see how the damage subsequently incurred by reason of the fire was in any way consequent on such breach. Captors or other executive officers of the Crown in possession of property seized as prize may properly be likened to bailees, if there be a question as to the amount of care they are bound to exercise, but the likeness cannot be extended beyond this point. Bailment is a matter of contract, and the measure of damage in the case of a breach of contract may be very different from the measure of damage in the case of a breach of duty which in no way arises out of contract. The Südmark (No. 2), [1918] A.C. 475, 479-484, VI LI. Pr. Cas. 352, 363–369. In 1914 an American company shipped oil on a German vessel Negligence destined from New York to Brazil. After the outbreak of war between Great Britain and Germany the vessel was captured off the Brazilian coast by a British vessel, some two thousand miles from a British prize court. The prize crew made some attempts to prevent spontaneous combustion in the bunker coal, but owing to naval demands they were withdrawn to rejoin their ship. The vessel was left without anyone on board, and fire subsequently destroyed the vessel and cargo. The Crown asked for a declaration that the vessel was subject to condemnation, and the American owners of the cargo made a claim on the grounds that the loss was due to the negligence of the captors in leaving the vessel unattended. The Prize Court held that under the circumstances there was no lack of reasonable care on the part of the captors. The Santa Catharina, VIII Ll. Pr. Cas. 35, 45, 48, 54 (1918). A Swedish ship with her cargo was sunk in a collision with a British warship which was effecting her capture as prize, through the negligence of the captors. Proceedings were brought against part of the cargo, which was condemned as contraband. Danish owners of another part of the cargo, against 440083-43-vol. VII-17 Liability while detaining or diverting which no proceedings were taken, brought an action in the Prize Court for damages. The Prize Court and, on appeal, the Judicial Committee of the Privy Council held that the Crown might be sued under the circumstances and that it might not limit its liability as would an ordinary ship-owner under the Merchant Shipping Act of 1894. The Oscar II, [1919] P. 171; [1920] A.C. 748; IX Ll. Pr. Cas. 267. Mail bags on a Swedish vessel en route from Sweden to the United States were landed at Kirkwall and sent by officials there to London for examination. On the way a fire of unexplained origin broke out and the contents of a number of bags were damaged, including certain parcels of gloves of enemy origin. The parcels were ordered sold under the Reprisals Order of March 11, 1915. After the conclusion of peace the proceeds were released to the consignees, who made a claim against the Crown for damages for the loss caused by the fire. Had the goods been placed in the custody of the marshal upon landing, they would have been covered by insurance; but negligence with respect to the fire was not alleged by the claimants. Both the Prize Court and the Judicial Committee of the Privy Council held that it was reasonable to send the goods to London for examination without placing them in the custody of the marshal and that there was no duty to insure the goods for the benefit of the owners. The claim was not allowed, Lord Sumner saying for the Judicial Committee: There has been from time to time some difference of opinion as to the exact degree of care which is required of captors, but their obligation has always been recognized as being one of care and prudence. It has never been placed so high as that of insuring or answering in all events for the safety of the prize, whether by protecting it from all hazard or by providing through policies of insurance a fund to make good its loss. The law is now well settled that it is for unreasonable action, for negligence and for wilful wrongdoing, that captors are liable from the time of seizure to the time when the res is placed in the custody of the Prize Court. The New Sweden, [1921] P. 473; [1922] 1 A.C. 229, 231-232; X Ll. Pr. Cas. 317, 330–331. In 1915 the American merchant vessel Llama cleared from New York with a cargo of oil destined for Denmark. While en route to the British contraband-control port of Kirkwall, where the vessel had orders from the owner to stop for examination, it was stopped and visited by a British cruiser which put an officer and four men aboard and ordered it to proceed to Kirkwall. A course into Kirkwall through the Westray Firth was chosen; on this course the vessel struck a rock and became a total loss. The Llama was insured by the War Risk Insurance Bureau of the Treasury Department, which refused payment on the ground that the loss was an ordinary marine loss rather than a war-risk loss. Proceedings were instituted in the Federal courts against the United States to recover under the policies. The decision of the District Court of the United States for the District of New Jersey that the vessel was lost through an ordinary marine risk was reversed by the Circuit Court of Appeals for the Third Circuit, both courts basing their decisions on conflicting testimony of the master and the prize officer as to who was actually responsible for the loss. Upon appeal to the Supreme Court the conflicting testimony was held to be immaterial, the court, speaking through Mr. Justice Holmes, stating: "... But if a vessel should be taken from an owner's hands without his consent and should be lost while thus held by a paramount power, obviously a company that had insured against such a taking could not look beyond and attribute the loss to a peril of the sea. Whatever happens while the taking insured against continues fairly may be attributed to the taking. . . "... But after an entry 'British naval officer boarded ship with prize crew' nothing more was necessary to show what the master understood his position to be, whether in fact the crew was a prize crew or not. As was said of similar facts in Muller v. Globe & Rutgers Fire Ins. Co., 246 Fed. 759, 762, that the vessel and her cargo were seized, arrested and detained within the meaning of the policy we think too plain to require much more than mention. It no more mattered that the master took an active part in the navigation than that the ship still was steered by one of the crew. "As the vessel had passed out of the owner's control before the accident by a seizure within the policy and as the loss happened while the vessel thus was held by an adverse hand, it follows that the libellant must prevail." The United States then turned to Great Britain for reimbursement under subrogation principles and also advanced a claim of the owners for their alleged additional uninsured interest in the vessel and cargo. The claim was denied by the British Foreign Office, which took the position that the Supreme Court merely decided that the placing of an armed guard on the vessel was a "taking at sea" within the meaning of the insurance policy and that this finding did not have the effect of charging the British Government with liability. The note of the British Foreign Office continued: "7. In international law no claim for the loss of a ship in such circumstances exists unless the vessel is diverted from her course. "The 'Llama' was bound for Kirkwall. She was on her way to Kirkwall at the time she struck the reef and foundered, proceeding through Westray Firth a passage which the Master had taken on the previous voyage and which the British officer on board had never taken. In the opinion of His Majesty's Government the judgment of the District Court of Appeals shows conclusively that Lieutenant Cox in no way interfered with the discretion of the Master in the selection of the course which the ship followed from the point where the 'Llama' was first boarded right up to the point where the vessel foundered." The owners commenced proceedings in the British Prize Court for their alleged loss over and above the insurance paid. The court held that there was no liability on the part of the British Government. The question was said to be whether the casualty was due to negligence or improper action on the part of the British officer. The court decided that "it had been expressly and definitely arranged . . . that he, Cox [the British boarding officer], should be only an interested looker-on in the navigation of the ship, and that the master of the 'Llama', as master of the 'Llama' on behalf of her owners, should control the navigation". It concluded that "there was no act of ... [the British officer] which either caused the wreck or conduced to causing it". The decision was not appealed. The owners later submitted a claim to the Department of State which was re Undue delay jected on the ground that the company had not established the uninsured interest in the vessel and cargo which was the basis of the claim. The Llama: United States v. Standard Oil Co. of New Jersey, 291 Fed. 1 (C.C.A. 3d, 1923); Standard Oil Company of New Jersey, as Owner, etc., of the Steamship Llama v. The United States of America, 267 U.S. 76, 77-79 (1925); the Under Secretary of State (Grew) to the American Chargé d'Affaires ad interim in Great Britain (Sterling), nos. 635 and 638, Apr. 23 and 24, 1925, MS. Department of State, file 341.115St2/264; the Counselor of Embassy (Sterling) to the Secretary of State (Kellogg), no. 445 (enclosure), ibid. /273; Standard Oil Company v. H. M. Procurator General: The "Llama", Probate, Divorce, and Admiralty Division of the High Court of Justice, Dec. 18, 1929, ibid. /289 (enclosure); the Solicitor for the Department of State to Messrs. Kirlin, Campbell, Hickox, Keating and McGrann, Jan. 12, 1931, ibid. /302. A Norwegian vessel (neutral) was detained by Australian authorities from October 1914 until early in 1915, when the enemy cargo on board was seized. Damages for the detention of the vessel were granted by the Supreme Court of New South Wales. An appeal by the Crown was dismissed by the Judicial Committee of the Privy Council. Lord Sumner said: It is not contested that the foundation of such a claim must be exceptional and unreasonable delay, or that the responsible decisions which the representatives of the Crown are obliged to take, require, in adequate and ample measure, time and opportunity for inquiry and deliberation, but there was evidence on which the learned Judge could find, as he did, that the delay was nevertheless "undue," and their Lordships were not invited to differ from his decision on a mere question of quantum. The Remonstrant, VI Ll. Pr. Cas. 329, 341 (1917). Enemy vessels DESTRUCTION OF PRIZES 8643 The Instructions for the Navy of the United States Governing Maritime Warfare (June 1917) provided: 94. An enemy ship made prize may be destroyed by the capturing officer in case of military necessity, when the vessel can not be sent or brought in for adjudication. The United States Naval War Code of 1900 provided: "ARTICLE 14. In case of military or other necessity, merchant vessels of an enemy may be destroyed ... "ARTICLE 50. If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication-such as unseaworthiness, the existence of infectious disease, or the lack of a prize crew-they |