Extent of judgment

Review

of 1907 concerning the rights and duties of neutral powers in case of maritime war implied their right to restore a vessel captured by a belligerent which later returned to the neutral territorial waters of the state of its flag. The Netherlands District Court of Groningen held on June 10, 1921 against the former owner. It pointed out that this was not a proceeding to execute a foreign judgment, that the Hague convention concerned rights and obligations during war rather than matters of private right in time of peace, and that under international law reparation for illegal confiscation in prize could only be obtained by way of diplomatic negotiation.

N. V. Zeetjalk "De Hoop" v. N. V. Wijnne en Barends' Cargadoors, Weekblad van het Recht, no. 10907; Annual Digest, 1919–22, Case No. 347.

With respect to articles XXI and XXII of the Hague convention referred to, see §673, post.

The British Prize Court in 1914 condemned as prize a German vessel in which was installed a submarine detecting device of which an American company claimed to be the owner. With reference to the company's claim, the court (after deciding that the device was not "cargo" within the meaning of article 3 of the Declaration of Paris) said:

I have already condemned the ship as prize, and I am not called upon in this Court to investigate such matters as the property in parts of the ship, whether they have been leased, or whether the property in them remains in the original lessors. . . . I do not say that because I am not conscious of the importance of doing what is right and fair to any neutral in respect of any property which is clearly shown to be his; but in a case of this description it must be dealt with by the Executive, and those who advise the Crown. So far as this Court is concerned, the apparatus is to be regarded as part of the ship, which I condemn.

The Schlesien, II Ll. Pr. Cas. 92, 98.

A vessel flying the Netherlands flag and owned by a Netherlands company controlled by a German company was seized by an English cruiser while on a voyage from New York to Cuba under charter to an American firm. Prize proceedings were brought against the vessel in Halifax. The American charterer entered a claim for bunker coal on board. The Exchequer Court of Canada (Nova Scotia Admiralty District) held that the Crown must pay for the coal put on board by the charterer. It stated that even though the ship should be adjudged lawful prize and the transfer of the ship carry with it such appurtenances as spare machinery and anchors, bunker coal put on by the charterer must be paid for if retained by the captor. The Hamborn (No. 2), 2 Canada Exchequer Repts. 250 (1916).

We cannot admit the principle that the judgments of the courts of a country are to be accepted as finally determining its international liabilities or the measure of its obligations in matters of

prize. Both this Government and Great Britain have repeatedly submitted the decisions of their highest tribunals in similar cases to arbitration.

The Secretary of State (Knox) to the Ambassador to Japan (O'Brien), telegram of May 22, 1911, MS. Department of State, file 494.11An8/70.

With respect to the proposed International Prize Court, see ante, §591.

In pressing a claim against the Japanese Government on behalf of the American owners of a cargo which had been condemned by a Japanese prize court, the Department of State, in 1913, said:

confident that, whatever its position might be regarding questions of pure municipal law, the Government of Japan will not maintain (in direct opposition to the general practice of maritime powers and contrary to the express provisions of the Hague Convention establishing an International Prize Court) that the judgments of the courts of a country are to be accepted as finally determining its international liabilities or the measure of its obligations in such international questions as are involved in matters of prize, the Government of the United States requests as a final recourse, should the above outlined or some similar method of settlement not commend itself to the Imperial Japanese Government, that the matter of the seizure and condemnation of the cargo of the Antiope be submitted to arbitration.

The Secretary of State (Knox) to the Ambassador to Japan (Anderson), no. 3, Feb. 7, 1913, MS. Department of State, file 494.11An8/86.

In reply to a note from the American Ambassador, the British Foreign Office in a note of July 31, 1915 wrote:

"... it is open to any United States citizen whose claim is before the prize court to contend that any order in council which may affect his claim is inconsistent with the principles of international law and is, therefore, not binding upon the court. If the prize court declines to accept his contentions, and if, after such a decision has been upheld on appeal by the Judicial Committee of His Majesty's Privy Council, the Government of the United States of America consider that there is serious ground for holding that the decision is incorrect and infringes the rights of their citizens, it is open to them to claim that it should be subjected to review by an international tribunal.

"7. This principle that the decisions of the national prize courts may properly be subjected to international review was conceded by Great, Britain in Article 7 of the Jay treaty of 1793 and by the United States of America under the treaty of Washington of 1871. Your excellency will no doubt remember that certain cases (collectively known as the 'Matamoras cases') were submitted to the commission established under Articles 12-17 of the treaty of Washington. In each of these cases proceedings in prize had been instituted in the prize courts of the United States, and in each case the judgment of the Supreme Court, the court of last resort in cases of prize, had been obtained. The United States filed a demurrer in these cases, alleging that as they had been heard by the prize courts of the United States of original and appellate jurisdiction, the de

cision of the appellate court was final and no claim based upon it could be made before the commission. The demurrer was unanimously overruled and the cases heard, and the agent of the United States, in his report of the proceedings of the commission, stated that he personally ‘maintained no doubt of the jurisdiction of the commission as an international tribunal to review the decisions of the prize courts of the United States where the parties alleging themselves aggrieved had prosecuted their claims by appeals to the court of last resort. As this jurisdiction, however, had been sometimes questioned, he deemed it desirable that a formal adjudication by the commission should be had upon this question.'

"8. The same principle was accepted both by the United States Government and His Majesty's Government in 1907 in connection with the proposed establishment of an International Prize Court, although certain constitutional difficulties have led the United States Government to propose that the right of recourse to the International Prize Court in connection with a decision of the Supreme Court of the United States should take the form of a direct claim for compensation."

The Ambassador to Great Britain (Page) to the Secretary of State (Lansing), telegram 2575, July 31, 1915, MS. Department of State, file 763.72112/1423; 1915 For. Rel. Supp. 496, 498.

In connection with the sinking of the American vessel Chemung, which was believed to have been caused by an Austro-Hungarian submarine, the Department of State was informed by the Austro-Hungarian Foreign Office that under the law of that country decision on the legality of such an action was ordinarily for the Prize Court and that

"... It is of course understood that a neutral government is at liberty to resort to diplomatic channels if it finds itself unable to accept a decision of the prize court of last instance as satisfactory. The Imperial and Royal Government would be able to take a position only in the matter of the treatment of persons found on board of a prize, because this question does not belong to the competency of the Imperial and Royal Prize Courts." Enclosure in despatch 2428 from Ambassador Penfield to Secretary Lansing, Jan. 23, 1917, MS. Department of State, file 300.115C42/17.

In the arbitration between the Interocean Transportation Company of America and the United States of a claim, brought against the United States under the exchange of notes of May 19, 1927 between the United States and Great Britain, concerning alleged losses suffered by the American company as a result of detention of one of its vessels by British authorities during the World War of 1914-18, Judge Hutcheson, as sole arbitrator, said:

For undoubted as is the right of a government to press a diplomatic claim against another, although the subject matter of it has already been decided adversely to its national in a Prize Court, it is equally undoubted that the judgments of prize tribunals import verity, and that where there is no legal principle at issue, but only the matter of a fact finding, the heaviest sort of burden rests upon the claiming government to overcome the presumption of verity which attaches to the solemn decisions of municipal tribunals having jurisdiction. Drawing on municipal law analogies, just as

the verdict in a common law case will not be overturned where there is any evidence to support it, and just as a fact finding of a legislature, or of an administrative board or tribunal, its creatures, will not be disturbed unless it has no basis in reasonable thinking, so a denial of justice as to findings of fact in prize proceedings will not be found unless the findings are wholly without evidence to support them; that is, unless they are such that reasonable and impartial minds could not draw them upon the record.

Report and Decision of the Arbitrator in the Claim of Edward J. Ryan, Trustee in Bankruptcy of the Interocean Transportation Company of America, Incorporated v. The United States of America (S.S. F. J. Lisman), etc., MS. Department of State, file 441.11In85/146a; 32 A.J.I.L. (1938) 593, 619.

COSTS

§654

In 1915 the German Foreign Office informed the United States that Germany would assume the costs of prize proceedings "in those cases Germany where the claim is allowed", if reciprocity were granted by the claimant's country. In reply to an inquiry on the part of Germany concerning American practice, the Department of State pointed to the lack of control by the executive over the judiciary in the United States and continued:

The Department referred the communication of July 7 from the Imperial German Government to the Department of Justice for its consideration and has now received a reply as follows:

"By the practice in American prize courts the matter of costs and expenses is left very largely to the discretion of the court. It u. s. has been the general rule, however, not to allow costs and expenses to a claimant where probable cause for the capture is shown by the record, even though a decree of restitution in his favor is made. See The Apollon (9 Wheat. 362, 379); The Mary (9 Cranch 126, 151); The Thompson (3 Wall. 155, 162); The Wren (6 Wall. 582, 588); The Olinde Rodrigues (174 U.S. 510); The Buena Ventura (175 U.S. 384, 395). And in cases where the conduct of the claimant has been such as to mislead or deceive the captors, costs will, as a general matter, be denied to the claimant notwithstanding a decree in his favor. The Springbok (5 Wall. 1, 28); The Peterhoff (5 Wall. 28, 62); The Dashing Wave (5 Wall. 170, 178); The Sir William Peel (5 Wall. 517, 536); The Venus (5 Wheat. 127, 132); The London Packet (5 Wheat. 132, 143).

"It would seem, therefore, that if there is a general rule as to German prize courts by which costs and expenses are charged to the account of the German Empire in all cases where the claim is allowed, reciprocity of treatment cannot be assured in all cases, since in this country the court will charge a successful claimant with costs and expenses under some circumstances."

440083-43—vol. VII- -22

In communicating the above to the Foreign Office you may assure the Imperial German Government that German subjects would be accorded the same treatment by our prize courts as that accorded to the nationals of any other country, and say that it is hoped that American claimants may receive in the German prize courts treatment no less favorable than that accorded to the nationals of other countries.

The Ambassador to Germany (Gerard) to the Secretary of State (Lansing), no. 1194, July 9, 1915, and Mr. Lansing to Mr. Gerard, no. 1241, Sept. 9, 1915, MS. Department of State, file 763.72112/1408; 1915 For. Rel. Supp. 489, 540-541.

The reply of the German Foreign Office indicated that the answer of the United States did not amount to the "guarantee of reciprocity" required under section 37, paragraph 3, of the German prize-court ordinance of Apr. 5, 1911; and it suggested that the United States give an assurance of reciprocity similar to that already given by the Scandinavian states and the Netherlands. The German Foreign Office to the American Embassy in Berlin, Nov. 26, 1915 (enclosure in despatch 1947, Nov. 30, 1915, from Mr. Gerard to Mr. Lansing), MS. Department of State, file 763.72112/2026; 1915 For. Rel. Supp. 642.

With respect to the release on bail of certain goods held for trial in Great Britain the British Prize Court, a question arose whether the bail bond should contain a provision under which in case of condemnation the claimants would be credited with the costs and expenses of detention paid by them to obtain delivery. In approving such a provision in the bond, Sir Henry Duke said:

Release

on bail

There are certain events of prize proceedings in which the liability for costs and charges and the nature of the security for that liability are already well ascertained. Apart from any exceptional circumstances goods and proceeds of goods which are the subject of proceedings in prize are, according to the ordinary practice of the Court, subject to a charge for costs and charges of seizure and detention. If the captor obtains a decree of condemnation, his interest in the goods or fund, the subject of the decree, is charged with these costs and expenses. If the claimant succeeds in the cause the decree in his favour leaves him to bear the like burden. In the Adonis Lord Stern

dale recently stated the position to this effect: If goods are condemned, the Crown bears the expenses of keeping them out of the fund got by condemnation; where the goods are released the expenses are taken out of the fund which is released; where bail has been given and goods are condemned, there is simply an order of condemnation, and no order is made as to the repayment of the expenses, but that has simply been the custom in the Registry, and no case in which the question arose whether it was right has come before either the Judge or the Registrar.

The substantial question now at issue is that which was left undecided in the Adonis, namely, whether a claimant who obtains release on bail of a captured ship or goods should be required as a condition of the release to pay unconditionally the