In 1917 the Privy Council upheld the requisitioning of neutral Swedish-owned copper while prize proceedings were pending, stating that to justify requisition the goods must be urgently needed and there must be a real question for adjudication so that immediate release could not be properly ordered.

The Canton, [1917] A.C. 102.

A French warship stopped a Spanish vessel carrying a cargo destined from Spain to Genoa and, because of inability to carry out visit and search, took the vessel to the French port of Toulon. There rawhides were seized from the cargo and condemnation proceedings brought against them as absolute contraband. Pending trial they were requisitioned by the military authorities. The Prize Council found that they had a neutral Swiss destination and were not liable to condemnation. The Council ordered that their value be paid to the owners but allowed neither damages for the capture and requisition nor interest. The owners were required to pay the expenses resulting from capture.

The Rioja (Oct. 28, 1915), Fauchille, Jurisprudence française en matière de prises maritimes (1916) 141. To the same effect, see The TeresaFabregas (Nov. 8, 1915), ibid. 148.

Governed by municipal

law

PROCEDURE

IN GENERAL

§650

In reply to the American note of October 21, 1915 with respect to changes in British prize-court procedure (see pp. 307-308, post), the British Government stated:

11. It may further be pointed out that the practice and procedure adopted in prize courts are not settled or regulated by international law, but they are determined by each nation for itself. The procedure described in the United States note was gradually evolved in the British courts, and, though it was adopted by the United States, it has never been followed in the prize courts of France or of any other continental nation, nor does the fact that the United States followed the British practice prevent Great Britain or any other of the Allied nations from introducing such changes in the procedure as modern circumstances may call for. International law only requires that the practice in prize courts of the belligerent nation should afford a fair hearing to all claims put forward by neutrals, and should enable the court to arrive at a just conclusion upon the evidence. Subject to that condition, each nation may regulate the practice to be followed in its prize courts.

The British Ambassador (Spring Rice) to the Secretary of State (Lansing), Apr. 24, 1916 (enclosure), MS. Department of State, file 763.72112/2461; 1916 For. Rel. Supp. 368, 371.

In considering whether an enemy alien had the right to appear as claimant in prize proceedings, the British Prize Court for Egypt (Judge Cator) said in Jan. 1915:

"... I consider that the rule is one of practice which it is open to the Court to vary, not indeed capriciously, but for good cause. And I think that it is not the right but the duty of the Court so to alter its practice from time to time as to reflect the changing conditions of civilisation that it has to serve. Now there can be no doubt that the general attitude of mind and conditions of thought of civilised mankind has greatly altered during the last hundred years, and an endeavour has been made to formulate this changed opinion in the various International Conventions that have been signed at Berne, the Hague, and elsewhere and it is just and right that the milder views of the present generation should find an echo in the procedure of our Prize Courts." The Gutenfels, I Br. & Col. Pr. Cas. 102, 104-105.

In connection with a Swedish claimant's contention that submission to discovery and proceedings in the British prize courts would result in a violation of Swedish law, Lord Parker said that—

their Lordships are clearly of opinion that a Court of Prize cannot properly be deterred from making what it conceives to be

the appropriate order because a neutral claimant would, if he Effect of law obeyed the order, be guilty of a breach of his own municipal law. of neutral The substantive law administered by the Court is international state law, which cannot be affected by the municipal legislation of any one State, and its practice and procedure are governed by the municipal law of the State from which it derives its jurisdiction, and cannot be modified by the municipal legislation of any other State.

The Consul Corfitzon, [1917] A.C. 550, 555-556, VI Ll. Pr. Cas. 268, 276-277.

Concerning the unwillingness of Swedish purchasers of coffee, which was proceeded against as cortraband, to submit all of their books of accounts to the Prize Court, Lord Sumner said:

...

"... if the evidence, by which their case might have been cogently supported, was required for their other business in Sweden, it was for them to choose whether they would conduct their case or their business to the better advantage. it is impossible for a Court of Prize, an international tribunal, to allow its investigation of the truth of the matters brought before it to be limited by the restrictions of the municipal law affecting one of the parties to the proceedings before it. Their Lordships cannot hold that a captor's evidence is not to prove whatever it is capable of proving, merely because the claimant is not permitted by the laws of his country to produce the evidence appropriate to rebut it." The Kronprinzessin Victoria, [1919] A.C. 261, 267-268, VII LI. Pr. Cas. 230, 252-253.

Fair procedure

Differs from criminal procedure

An American vessel bound for the English island of Antigua with non-contraband cargo was seized by a French privateer in 1798 and condemned by a French court at Guadeloupe on account of the absence of an invoice of the cargo and a rôle d'équipage. The captain was imprisoned from the time of capture until long after the condemnation, although examined in preparatorio. In passing on this as one of the French Spoliation Claims, the Court of Claims held that the absence of papers was not a sufficient ground for condemnation by the French court and that the prize proceedings did not meet the necessary standard of fairness. Judge Atkinson said on this latter point:

A prize proceeding is an action in rem, and where the master of a captured vessel absents himself on his own volition, such act would not operate to defeat a condemnation otherwise valid. And while the examination of a master in preparatorio, while under that duress which is implied from the mere capture of his vessel, would be competent evidence to be considered in the first instance for the condemnation of the vessel, it would not be if the master, in addition to such implied duress, were imprisoned and the examination in preparatorio was behind prison bars, because in such case the master would be deprived of his liberty and his answers might bear the impress of such imprisonment. ... A prize proceeding is no exception to the universal principle of justice, which requires a proper legal hearing before condemnation can be ordered.

The Sloop Townsend, 42 Ct. Cls. 134, 151 (1907).

As to the procedure in prize cases, see 4 Benedict's Admiralty (6th ed., by Knauth, 1940) 318.

when Sec. 55 of the code of prize procedure refers to the rules of the code of criminal procedure relative to the hearing of witnesses, it means simply that the general provisions concerning the administration of proof by the hearing of witnesses, and especially the form of the interrogatory, the capacity to make oath, the obligation to depose, etc., must find a corresponding application. It does not mean that all the precautions which surround an accused person must be given to a claimant in prize procedure. Therefore there was no vice of procedure [in the lower Court] in admitting the deposition of the captain of the ship [relative to the circumstances in which the Davanger was sunk and especially as regards the lack of a ship's certificate].

The Davanger (Jan. 26, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 232, 235; Garner, Prize Law During the World War (1927) 117. For the procedure adopted by German prize courts in 1915, see the Consul General at Hamburg (Morgan) to the Secretary of State (Bryan), no. 204, Feb. 17, 1915, MS. Department of State, file 763.72112/886; 1915 For. Rel. Supp. 346.

With respect to the procedure of French prize courts in the European war of 1939, see "Instruction sur l'administration des prises maritimes" (Sept. 30, 1939), Journal officiel, Oct. 2, 1939, p. 11899. See also Department of Commerce, III Comparative Law Series (1940, no. 6) 319.

In 1915 the owners of an American vessel seized by the British requested the Department of State to take steps to procure its release Bail on bail. The Department replied that there seemed to be no reason why the owners might not apply directly to the British Government and declined to take the requested action. In reply to a later communication complaining that the British Government was using the vessel and requesting that steps be taken to protect the owners' interests, the Department said:

The Department is not prepared at this time to agree with the statement in your letter that "if this vessel is upon a voyage at the time bail is deposited and if during that voyage subsequent to the deposit of the bail, the vessel is destroyed, the Company and not the English Government, will be the loser"; but the Department regards your observation that the vessel should be subject to immediate delivery upon the deposit of bail being made as well founded.

Walter S. Field to Secretary Lansing, Mar. 27, 1916, and the Second Assistant Secretary of State (Adee) to Mr. Field, Apr. 6, 1916, MS. Department of State, file 441.11Am37/180; Mr. Field to Mr. Lansing, Mar. 27, 1916, and Mr. Adee to Mr. Field, Apr. 1, 1916, ibid. /185.

With respect to the release of goods on bail, see Order XII of the British Prize Court Rules of 1939, Gt. Br., Statutory Rules and Orders, 1939, No. 1466/L.23.

Where the amount realized by a pledgee to whom goods had been released under bail was less than the amount of the bail bond, the bond was enforced for its full value upon condemnation of the goods. The Flamenco and The Orduña, IV Ll. Pr. Cas. 226 (1915).

The German Prize Court Code of Aug. 28, 1939 provides in article 71 that "In any stage of the proceedings, the claimants may demand the release of the prize against a bond in the amount of the value of the prize. Such can be granted only with the approval of the Reich Commissioner. The nature and the amount of the bond is fixed by the prize court." Reichsgesetzblatt (1939) 1593, 1599; Department of Commerce, III Comparative Law Series (1940, no. 1) 50, 62. See also the Consul General at Hamburg (Keblinger) to the Secretary of State (Hull), no. 768, Jan. 23, 1940, MS. Department of State, file 300.115 (39)/603.

The statute of limitations is not available in prize cases and therefore, as a general rule, there is no prescribed time within which a claim before the Prize Court is barred. . . . This is Limitations the strict prize rule. As a matter of equity, however, the judge possesses a discretionary power to refuse his assistance to an action brought or pursued after an unreasonable delay.

Colombos, Treatise on the Law of Prize (2d ed., 1940) 325.

The British Prize Court held that the provision of the Public Authorities Protection Act of 1893, requiring actions and proceedings against public authorities to be brought within six months after the act complained of, did not apply to a writ in prize claiming damages against the Procurator General for the illegal seizure and detention of a neutral vessel. The Wilhelmina, [1923] P. 112, X Ll. Pr. Cas. 371.

Appearance

Order XV, rule 9, of the British Prize Court Rules of 1939, provides:

No ship or aircraft shall be condemned at the hearing in the absence of an appearance or claim until six months have elapsed from the service of the writ, which shall be verified . . . unless there be on the ship papers or aircraft papers, and on the evidence, if any, of the witnesses from the captured ship or aircraft, sufficient proof that such ship or aircraft belongs to the enemy, or is otherwise liable to condemnation.

Gt. Br., Statutory Rules and Orders, 1939, No. 1466/L. 23.

Order III, rule 1, provides that "any person desiring to enter an appearance in a cause shall enter an appearance . . . within thirty days after service of the writ, or may by leave of the Court do so at any time before final adjudication". Ibid.

The British Crown sought condemnation of contraband shipped before the outbreak of war in 1939 in Netherlands and Norwegian vessels from South American ports "to order" Hamburg or "Rotterdam and/or Hamburg". The Prize Court was satisfied that the goods were covered by the contraband proclamation in view of affidavits showing their suitability for war purposes. The Attorney General asked for a ruling that since the writs had been issued more than six months before and no claims had been interposed with respect to any part of the cargo, the Crown was entitled to condemnation by virtue of Order XV, rule 9. Sir Boyd Merriman, as president of the Prize Court, held that the cargoes or their proceeds should be condemned on the evidence and declined to rule on the point raised by the Attorney General. He said:

Now there is no doubt that under the law of nations, as it is described in the American case, The Harrison [1 Wheaton 298] enemy ownership, at any rate, might be presumed after the lapse of a year and a day if no other claimant came forward. The Attorney-General is on sure ground when he invokes the principle that in prize cases the onus is upon the claimant to put forward and establish a claim; it is not for the Crown, as a matter of pleading, to plead and particularize an affirmative case: the capture may be presumed to be in order until some claimant comes forward and establishes his claim. Undoubtedly there are passages in Pratt's edition of Story which emphasize the presumption that after the lapse of a year and a day enemy ownership may be presumed.

Now it is quite clear, in that judgment, that the whole stress is upon the ownership of the property.. While it is very easy to see how this presumption can be applied without difficulty in the case of the mere question of ownership, it is .. a little more difficult to apply it in all its implications to other grounds of condemnation. However that may be, I am not to be taken to