SALE OR REQUISITION PENDING PRIZE PROCEEDINGS

8649

Section 1 of an act of Congress approved March 3, 1863 provided that when any prize property was found by the prize court, at any stage of the proceedings, to be "perishing, perishable, or liable to deteriorate or depreciate, or whenever the costs of keeping the same shall be disproportionate to its value, or whenever all the parties in interest who have appeared in the case shall agree thereto", it would be the duty of the court to order a sale thereof; and it further provided that the gross proceeds would be subject to the future order of the court. 12 Stat. 759. These provisions were reenacted in slightly modified form in sections 7 and 8 of an act approved June 30, 1864 (13 Stat. 306, 308) and were later incorporated in section 4627 of the Revised Statutes of the United States and more recently in 34 U.S.C. §1143. They conform to generally accepted international procedure in prize

cases.

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By section 2 of the act of Congress approved March 3, 1863, relating to proceedings in prize, the Secretary of the Navy and the Secretary of War were authorized "to take any captured vessel, any arms or munitions of war, or other material, for the use of the Government", and the Department for whose use it was taken was required to deposit the value of the property in the Treasury of the United States, subject to the order of the prize court. 12 Stat. 759. The British Minister, Lord Lyons, protested on June 6, 1863 against the provision contained in this section, "so far as it purports to authorize the taking of any captured neutral vessel, before adjudication" for the use of the United States, as "a novelty, for which no warrant is to be found in the principles of international law". 1863 For. Rel., pt. I, p. 564. Secretary Seward, in a note to Lord Lyons dated July 23, 1863, stated "That the government of the captor may, in some cases, previous to condemnation, appropriate to itself the vessel before formal condemnation, holding itself responsible for the full value, if final condemnation shall not pass, is a well-settled principle of admiralty law, practiced upon by all nations", and "That in the absence of any recognized rule determining the circumstances under which captured vessels may be so appropriated, each State may, within certain limits, fix a rule by its own legislation, seems also to be admitted." Ibid. 609. However, he submitted the question to Attorney General Bates, who advised that he was "not aware of any settled doctrine of the law of nations, to the effect that a belligerent nation whose cruiser has captured a vessel, as prize of war, has the right, at its own pleasure and convenience, to appropriate the prize to its own use, before con

demnation". 10 Op. Att. Gen. 519, 520-521 (1863). The Attorney General further advised that, if there was danger of dissatisfaction on the part of foreign powers, that danger might be avoided by abstaining from the use of the power granted in section 2. Ibid. 522. Section 2 of the act of 1863 was superseded, in substantially the same form, by section 27 of the act approved June 30, 1864 (13 Stat. 314), which was later embodied in section 4624 of the Revised Statutes of the United States and in 34 U.S.C. §1140.

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Article 49 of the United States Naval War Code of 1900 contained provision that, while the "title to property seized as prize changes only by the decision rendered by the prize court if the vessel or its cargo is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court".

The Instructions for the Navy of the United States Governing Maritime Warfare, issued on June 30, 1917, while adopting section 4624 of the Revised Statutes in paragraph 84, stated, in paragraph 85, that "it is inadvisable so to convert neutral property taken as prize".

John Bassett Moore states that "A captor may, under imperative circumstances, sell the captured property and subject the proceeds to the adjudication", citing Jecker et al. v. Montgomery et al., 13 How. 498 (1851), a case upholding the sale of a vessel and cargo outside of the United States when it was impossible to bring them into a port of the United States prior to adjudication consistently with the public interests, and Richard S. Fay et al. v. John B. Montgomery, 1 Curtis 266 (C.C.A. 1st, 1852), to like effect. VII Moore's Digest 590.

"A special problem is that of requisition of ships or cargoes captured as prizes before final adjudication by a prize court. In such cases, the neutral property is not within the jurisdiction of the requisitioning state voluntarily. Numerous old treaties prohibited the unloading, buying, exchanging, receiving, hiding or alienating goods laden on a captured vessel before its condemnation.

.. in reality little distinction is drawn in principle between the exercise of the power of eminent domain or expropriation for public use in time of peace, and requisitions in time of war, including requisitions of vessels or cargoes, in spite of this latter practice being sometimes based on a distinct 'right of angary.' In all these cases, the practice is based on the right of the sovereign to control property within his jurisdiction."

Research in International Law, Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), Comment, 33 A.J.I.L. Supp. (1939) 380, 384-385.

The requisition of captured neutral vessels and cargoes before condemnation was allowed by the French instructions of 1912, 1916, and 1934, the Italian rules of 1917, the Japanese rules of 1914, and the German ordinance of 1909. Ibid. 381.

The German Prize Court Code of Aug. 28, 1939 provides in articles 68-70 for requisition pending prize proceedings. Reichsgesetzblatt (1939) 1593,

1598-1599; Department of Commerce, III Comparative Law Series (1940, no. 1) 50, 61.

The requisitioning of goods pending prize proceedings is provided for in the French instructions of Dec. 24, 1939, Journal officiel, Dec. 28, 1939, p. 14237.

See also the discussion of angary, §609, ante, and the taking of enemy vessels, §§601, 602, ante.

Upon being informed in 1915 that the British Government intended to requisition certain American merchant vessels which had been seized and were being held for prize-court adjudication, the Department of State instructed the Ambassador to Great Britain to protest vigorously. This was done. In a note dated December 10, 1915, the British Government replied:

The action of His Majesty's Government in this respect is supported by American precedents during the Civil War. For instance, the British steamer Memphis was requisitioned by the United States authorities immediately after capture without notice being given to any claimant, this procedure being upheld by the United States prize court, while the British schooner Stephen Hart was actually requisitioned and sold one year before judgment was pronounced.

I need hardly remind your excellency that if the prize court does not condemn these ships the requisitioning will in no way prevent their being returned to their owners and as the latter could not in any case make use of them while proceedings are pending they lose nothing by what is being done.

Secretary Lansing to Ambassador Page, telegram 2516, Nov. 30, 1915, MS. Department of State, file 441.11Am37/46; Mr. Page to Mr. Lansing, telegram 3376, Dec. 10, 1915, ibid. /75; 1915 For. Rel. Supp. 620, 625, 626.

In concluding that the Crown had not made a proper showing preliminary to the requisition of copper on a Swedish vessel bound for Stockholm, brought into a British port on suspicion of enemy destination, while prize proceedings were still pending, the Judicial Committee of the Privy Council held that Order XXIX, rule 1, of the Prize Court Rules, providing for requisition on the mere statement that it was desired to do so, "must, if possible, be construed merely as a direction to the Court in cases in which it may be determined that, according to international law, the Crown has a right to requisition". Lord Parker said:

The next question which arises for decision is whether the Order appealed from can be justified under any power inherent in the Court as to the sale or realization of property in its custody pending decision of the question to whom such property belongs. It cannot, in their Lordships' opinion, be held that the Court has any such inherent power as laid down by the President in this case. The primary duty of the Prize Court (as, indeed, of all Courts having the custody of property the subject of litigation) is to preserve the res for delivery to the persons who ultimately establish their title. The inherent power of the Court as to sale or

Prerequisites to right of requisition

realization is confined to cases where this cannot be done, either because the res is perishable in its nature or because there is some other circumstance which renders its preservation impossible or difficult. In such cases it is in the interest of all parties to the litigation that it should be sold or realized, and the Court will not allow the interests of the real owner to be prejudiced by any perverse opposition on the part of a rival claimant.

It remains to consider the third, and perhaps the most difficult, question which arises on this appeal-the question whether the Crown has, independently of Order XXIX, r. 1, any and what right to requisition vessels or goods in the custody of the Prize Court pending the decision of the Court as to their condemnation or release.

On the whole question their Lordships have come to the following conclusion: 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 or 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.

In their Lordships' 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. The affidavit of the Director of Army Contracts, following the words of Order XXIX., r. 1, merely states that it is desired on behalf of His Majesty to requisition the copper in question. It does not state that the copper is urgently required for national purposes. Further, the affidavit of Sven Hoglund, which is unanswered, so far from showing that there was any real case to be tried, suggests a case for immediate release.

The Zamora, [1916] 2 A.C. 77, 98-108, IV Ll. Pr. Cas. 1, 98–110. See also ante, pp. 290–292.

With respect to the three limitations stated in the Zamora case, Hyde says:

"This statement is believed to be important not merely because it sustains the right of requisition, but rather on account of the second and third limitations announced. That a belligerent should not be permitted to requisition a neutral ship not in fact charged with the commission of illegal conduct and brought into port for purposes of inquiry rather than of condemnation, is a just requirement and accords with American theory." II Hyde, International Law, etc. (1922) 270–271.

A German merchant vessel chartered to a British firm was in a British port at the outbreak of war in 1939. It had been arrested on civil proceedings in rem. The owners claimed that it was detained in a British port by force majeure and should merely be held under an order of detention in the form of the "Chile orders" of the World War of 1914-18 (see vol. VI, p. 560, of this Digest). A motion of the Procurator General for leave to requisition was granted. The Prize Court held that the requirements laid down by the Privy Council in The Zamora were fulfilled, pointing out with respect to the second condition that "it is not suggested that it would be proper to order an immediate release". The Pomona, I Ll. P.C. (2d) 1, 2 (1940).

The Supreme Court of South Africa (Natal Div.) allowed, on Apr. 25, 1940, the requisitioning of a Danish vessel against which condemnation proceedings had been brought. The court held that the law applicable was that laid down by the Privy Council in The Zamora and—

"That the first two of these requirements were present because there was an averment of urgency by the proper officer, and there was a real question to be tried, viz., whether the ship should be condemned as a Prize; that in regard to the contention that the third requisite was not present because the ship was not an enemy ship, in view of the unusual circumstances created by the action of the German Government in overrunning Denmark, the Court would not be justified in granting the immediate release of the ship, and that argument that the ship was not an enemy ship could be addressed to the Court in the contemplated proceedings for the condemnation of the ship as Prize." The Kalo, I LI. P.C. (2d) 56 (1940).

On Apr. 13, 1940 a Danish ship entered Bombay harbor. Acting under a notification published in the official Gazette of Apr. 15, 1940 that all Danish ships entering ports of Bombay would be seized, customs officials boarded and took possession of the vessel on behalf of the Crown. On Apr. 18 a writ for condemnation was issued. Upon application by the Crown for requisition the Bombay High Court ordered that the ship be released to the Crown. The Gudrun Maersk, I Ll. P.C. (2d) 42 (1940).

To similar effect, see the decision of the Australian Supreme Court in The Astoria, ibid. 53 (1940). In this case the court said that in the condemnation proceedings it would have to pass on the question whether the extent of German control over Denmark was sufficient to give the vessel enemy character.

Upon the German occupation of Denmark in April 1940 a Danish vessel in a British port was seized and requisitioned pending prize proceedings, and an undertaking was filed for payment into court of the appraised value at such time as the court might declare any part of it necessary for payment out of court. British claimants had performed salvage services prior to the German invasion of Denmark and sought payment from the Prize Court of the sum awarded them therefor. The Prize Court held that "high interests of the state" took precedence over any inconvenience to the claimants, that there was no doubt that requisition was proper under the rules of The Zamora, and that for purposes of prize law the vessel was an enemy ship, even though the Crown had taken a course not involving its ultimate condemnation. The court found that this was a case where immediate release was impossible, and the claimants were assured that they would have opportunity to present their claim before the Prize Court at the time when the vessel should be released. The Prins Knud, 57 T.L.R. 323, I LI. P.C. (2d) 57 (1941). But see p. 341, post.