be throwing any doubt whatever upon the full extent of the rule, whatever it was, which enabled the Crown to ask for condemnation, under what Story J. calls the general usage of nations, after a year and a day. But I am asked to say that for that period of a year and a day there has been substituted a period of six months by virtue of Order XV., r. 9. I doubt whether it is possible, by what is merely a municipal rule of procedure, to substitute for a period recognized by the usage of nations some period which depends solely upon such a rule, and I have asked in vain for anything which suggests that other countries during the last war accepted as authoritative this reduction in the period.

In putting forward his submission upon the so called "six months' rule" the Attorney-General suggested this qualification. He said that supposing the evidence showed affirmatively that the goods were not contraband, he would not suggest that the default rule should apply; but that in other cases the rule justifies condemnation although if the onus were, as it is not, on the Crown, there might be an element of doubt. Now, I have said already that I throw no doubt whatever upon the well established principle that the onus of proof does not lie upon the Crown but upon the claimant. It is upon the first part of that suggested qualification that my difficulty arises. ... Either it is necessary to produce evidence to show that these goods are contraband, because of their applicability or suitability to one or other of the uses in the Proclamation, or it is not. If this "six months' rule" applies, and is of universal application, I cannot myself see what room there is for evidence about the matter at all. Putting it the other way round, if evidence is required, then it seems to me that the six months' rule cannot be an absolute rule.

With regard to this case I can only repeat that there were several parcels here which, unenlightened, I should never have dreamed were absolute contraband but which on the evidence I am convinced are such.

The Alwaki and Other Ships, [1940] P. 215, 219–223.

Proceedings were brought for the condemnation of foodstuffs on Scandinavian vessels consigned to Scandinavian ports, and no claim was made in regard to some of the goods. With respect to the latter, Sir Samuel Evans, as president of the British Prize Court, said:

"As the Crown asks me to do so, and is I think within its legal rights, there being no claimants before the Court, and six months having elapsed since the writ, I condemn these goods as good and lawful prize in accordance with Order XV., Rule 7." The Antilla and Other Vessels, VII Ll. Pr. Cas. 401, 408 (1918). Order XV, rule 7, of the 1914 Rules corresponded to Order XV, rule 9, of 1939.

"... If no claim is interposed, it is not customary to confiscate the property until six months have elapsed from the time of the service of the writ, unless there exists a strong presumption and a reasonable proof that the vessel, aircraft or cargo belongs to the enemy or is otherwise

Reopening of proceedings

Order procured by fraud

liable to condemnation. But, after six months have elapsed without the interposition of a claim, the Court is entitled to proceed to the condemnation of the property as good and valid prize. It does not follow, however, that because there is no claimant in the case and six months have elapsed that the goods will be confiscated ipso facto when facts emerge in the case showing that the property is not liable to condemnation." Colombos, Treatise on the Law of Prize (2d ed., 1940) 312–313.

In the case of the Benmacdhui, goods on an enemy vessel were said to stand self-condemned as enemy property on the face of the documents and to be liable to condemnation, although no appearance had been made, without waiting for the expiration of the six months' period provided for in Order XV, rule 9, of the British Prize Court Rules of 1939. The goods were consigned to an enemy firm at Hamburg. The court said that it was clear from the shorthand notes of the hearing in the case of the British vessel Durham Castle (Sept. 16, 1914, unreported) that Sir Samuel Evans was prepared to accept as prima-facie evidence of enemy ownership the consignment to, or to the order of, an enemy firm in an enemy port. Sir Boyd Merriman here concurred in the view of his predecessor. The Benmacdhui (Part Cargo Ex), I Ll. P.C. (2d) 6 (1939).

Where substantial injustice would otherwise result, the Court has, in their Lordships' opinion, an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties who have not in fact been heard, and who have had no opportunity of appearing. This power is discretionary, and should not be exercised except where there would be substantial injustice if the decree in question were allowed to stand, and where the application for relief has been promptly made.

The Bolivar, [1916] 2 A.C. 203, 205, III Ll. Pr. Cas. 386, 402.

See also The Orcoma, III Ll. Pr. Cas. 1, I Br. & Col. Pr. Cas. 402 (1915); The Mt. Temple, 9 Ll. L. Rep. 475 (1921). A new inquiry into the value of a requisitioned vessel was allowed in The Consul Olsson, [1920] P. 43, IX LI. Pr. Cas. 340.

Where the proceeds from the sale of lard on Scandinavian vessels bound from New York to Copenhagen had been released to a Danish claimant on the ground that he had bought the lard to sell in Denmark, and it appeared that false affidavits had been made by the claimant (who had been convicted therefor), the Prize Court reopened its order and condemned the proceeds of the shipment. Sir Samuel Evans said:

Every Court has the inherent right to set aside an order which it has made if it has been procured by fraud; and that rule applies to the Prize Court certainly as strongly as it does to any other Court.

The Alfred Nobel; The Björnstjerne Björnson; The Fridland, [1918] P. 293, 296, VIII Ll. Pr. Cas. 27, 33.

EVIDENCE

§651

In refusing an application by claimants that the captors be required

to furnish particulars, Sir Samuel Evans, president of the British Burden of Prize Court, said that "the persons who allege that their property is proof seized must take steps in those proceedings to claim the property and

to establish that it belongs to them, and that it is not confiscable".

The Antares, II Ll. Pr. Cas. 219, 251-252 (1915).

"A claimant in a Prize Court is not in a position analogous to that of a defendant; but rather to that of a plaintiff." The Möwe, [1915] P. 1, 7, II Ll. Pr. Cas. 70, 79.

"... Prize Courts have always acted upon the principle that the capture is lawful, until claimants establish the contrary. All that it is necessary for captors to allege in prize proceedings is that the capture was made and that the property captured is claimed as prize; thereupon claimants must establish their claim to release." The Zamora, [1916] P. 27, 36, IV Ll. Pr. Cas. 1, 48.

With respect to the burden of proof as to destination of contraband, see §618, ante.

In October 1915 the Department of State instructed the Ambassador to Great Britain to present a note to the Foreign Office regarding the alleged unlawful conduct of the war at sea with reference to neutral merchant vessels, stating:

(8) Turning to the character and sufficiency of the evidence of contraband nature of shipments to warrant the detention of a sus- First hearing pected vessel or cargo for prize proceedings, it will be recalled that when a vessel is brought in for adjudication, courts of prize have heretofore been bound by well-established and long-settled practice to consider at the first hearing only the ship's papers and documents, and the goods found on board, together with the written replies of the officers and seamen to standing interrogatories taken under oath, alone and separately, as soon as possible and without communication with or instruction by counsel, in order to avoid possibility of corruption and fraud.

proof"

(9) Additional evidence was not allowed to be introduced except upon an order of the court for "further proof," and then Order for only after the cause had been fully heard upon the facts already "further in evidence or when this evidence furnished a ground for prosecuting the inquiry further. This was the practice of the United States courts during the War of 1812, the American Civil War, and the Spanish-American War, as is evidenced by the reported decisions of those courts, and has been the practice of the British prize courts for over a century. This practice has been changed by the British prize court rules adopted for the present war by the order in council of August 5. Under these new rules there is no longer a "first hearing" on the evidence derived from the

ship, and the prize court is no longer precluded from receiving extrinsic evidence for which a suggestion has not been laid in the preparatory evidence. The result is, as pointed out above, that innocent vessels or cargoes are now seized and detained on mere suspicion while efforts are made to obtain evidence from extraneous sources to justify the detention and the commencement of prize proceedings. The effect of this new procedure is to subject traders to risk of loss, delay, and expense, so great and so burdensome as practically to destroy much of the export trade of the United States to neutral countries of Europe.

Secretary Lansing to Ambassador Page, Oct. 21, 1915, MS. Department of State, file 763.72112/1861a; 1915 For. Rel. Supp. 578, 580. See Thomas Baty, "Neglected Fundamentals of Prize Law", 30 Yale L.J. (1920) 34, 38. The British Government replied:

Twenty months' experience of the working of the new rules in the prize court has served to show the utility of the changes. The division of prize court proceedings into two distinct phases, the first hearing and the hearing on further proof, under the early British and the American practice, was merely a rule of procedure. Similarly the exclusion of extraneous evidence until the making of an order for further proof was only a rule of procedure. His Majesty's Government were, therefore, not only at liberty but felt bound to alter these rules so soon as they were advised that the rules were obsolete and might work injustice.

The old practice and procedure had become archaic in form and belonged to days long before the modern improvements in legal procedure were developed, days when, for instance, the parties interested were prevented from giving any evidence as witnesses in actions which affected their rights. The alterations in the prize court practice and rules were conceived and made in the spirit of those improvements. The objects with which the old practice was abolished were to prevent delay, to eliminate technicalities, and to enable the parties to prove all the true and material facts, and to place their respective cases fully before the court.

The British Ambassador (Spring Rice) to the Secretary of State (Lansing), no. 107, Apr. 24, 1916, MS. Department of State, file 763.72112/2461; 1916 For. Rel. Supp. 368, 371–372.

On January 8, 1942 the District Court of the United States for the Southern District of New York "ORDERED that the rules of this Court in Prize Proceedings, Numbers 1 to 53 [see Blatchf. Pr. Cas. 673], published in 1875 by the Honorable Samuel Blatchford, a former Judge of this Court and of the Circuit Court of Appeals for the Second Circuit and a former Justice of the Supreme Court of the United States, be and they hereby are readopted with such modification of

Rule 51 as has become necessary because of later legislation [with respect to appeals]." The court further provided for examination in preparatorio by prize commissioners upon the standing interrogatories "also contained in the said publication together with the additional interrogatories added thereto as contained in the minutes of this Court for September 7, 1861".

For these prize rules and standing interrogatories, see 42 F. Supp. (advance sheets, no. 2) xxvii et seq.; Maritime Law Association of the United States, document 271. Cf. note by Jessup, 36 A.J.I.L. (1942) 452. Similar rules and standing interrogatories were adopted on Mar. 10, 1942 by the District Court of the United States for the District of Hawaii.

It has long been assumed as good law that captors can rely at the trial on facts unknown to them at the time of capture (the LaterElize* [*(1854), Spinks, 88; 2 E.P.C. 327]) nor did the respond- acquired ents attempt to contest this.

The claimants further indicated a somewhat singular argument, namely, that the Edna should not have been detained at all, for her papers were in order, nothing on board of her or connected with her then ownership or employment awakened any just suspicion, and those who seized her are not shown to have had at the time any knowledge of such circumstances of suspicion as have since been elicited on a scrutiny of the evidence. Their Lordships think that such a contention unduly narrows the right and utility of seizure as a preliminary to trial and condemnation. Even under the old practice the allowance of further proof rested in the discretion of the Court. It is true that it was not the practice to exercise that discretion in favour of such an order under the circumstances prevailing in the wars at the end of the eighteenth and beginning of the nineteenth centuries. The likelihood of further evidence of value being obtainable was so small in proportion to the delay that it would involve, as to disincline the Court to allow a more remote investigation than the examination of the ship's papers and the administration of the standing interrogatories already provided for. Now, however, under modern conditions, when the facilities for ascertaining the truth by subsequent investigation and the introduction of various kinds of evidence make even a considerable delay so well worth incurring, it can hardly be doubted that the same judges would have freely exercised their discretion in the contrary direction. This would be peculiarly so if the question in debate were the validity and genuineness of the ship's apparent nationality. If inquiry on such a subject were to be limited to the regularity of her papers and register, it would not be worth while to embark upon it, for nowhere would it be less likely that captors would find proof of or even ground for suspecting the unreality of a transfer to a neutral flag than among the formal documents required to protect and conceal it. Unless search after the truth is to be abandoned in such cases or denied altogether, it must follow that, on grounds wider than the mere practice of the Prize Court as settled under the authority of the present statute, captors are

evidence