PUBLIC RECORD OFFICE
गय
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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in respect of the ship. The facts, as set out in the statements-on behalf of the officers and crew, should be briefly stated, in order that the Russian Government may consider the propriety of making some compensation. The prolonged detention appears to have been incidental to the miscarriage in the Vladivostock Prize Court. The removal of some of the men on board the Russian flag-ship would appear to have been improper, and it is alleged that while there they were exposed to unnecessary hardships.
2. Proceedings in a Prize Court in respect of the " Calchas" would appear to be useless as the Supreme Court has found that the arrest and detention were justifiable.
We think that claims on behalf of the owners and of Mr. MacKinnon may properly be presented diplomatically. There seems to have been great and unneces- sary delay, offering a marked contrast to the dispatch used in the case of the Arabia," and there appears to be some ground for the suspicion that this delay is not unconnected with the efforts which were being made to induce the owners to sell the ship.
3. We think that, as a matter of policy on which we understand that our opinion is invited, it is probably desirable that the owners of the jettisoned cargo of the "Cilurnum" should be told to institute proceedings before the Prize Court at Libau, to which it is stated the papers have been forwarded. If they succeed in establishing the innocent nature of the cargo, they will obtain compensation on the ground that there was nothing to justify its destruction. There remains the broader ground, that even if the cargo were contraband it could only be brought in for adjudication, and that its destruction at sea entitles the owners to full compensa- tion. We recommend that if it should be decided to advise the owners to take proceedings in the Prize Court, the Russian Government should be informed that His Majesty's Government reserves all rights in respect of the destruction of this cargo at sea, and will insist upon the payment of compensation whatever the result of proceedings in the Prize Court.
If redress is not obtained through the Prize Court, the claim may be pressed diplomatically, and may ultimately, with the other claims in dispute, be referred to arbitration.
4. This again is a question purely of policy. We understand that, in view of the assertion now made by the Russian Government that it was necessary to sink the "Hipsang" owing to her attempt to escape, Sir C. Hardinge has modified the opinion which he is stated, in the despatch under reply, to have heki as to the propriety of dealing with this case through the diplomatic channel exclusively.
As the Russian Government now put forward this contention, it is difficult to say that we should refuse to allow it to be disposed of in the ordinary way through the machinery of the Prize Court, and it may be politic to advise the owners to take proceedings, as a finding in their favour on the question of fact would very much facilitate a satisfactory settlement.
We therefore recommend that this course should be taken. We must. however, at the same time observe that no country is bound to acquiesce in the finding of a Prize Court which is manifestly erroneous in point of law or perverse on questions of fact. The circumstances attending the sinking of the "Hipsang" are such that it appears impossible to conclude that she was.sunk justifiably in order to prevent
an escape.
We think, therefore, that His Majesty's Government should intimate to the Russian Government that all rights are reserved, and that even in the event-which- they cannot anticipate of a decision in the Prize Court that the sinking was justifiable, they would insist upon compensation.
Upon the materials before us the case appears to be a very flagrant one, but proceedings in the Prize Court may provide a way out of the deadlock, and, if properly guarded, need not prejudice the enforcement of the claim through the diplomatic channel.
5. The claims in connection with the "Oldhamia" should certainly be brought before the Prize Court in the first instance. It appears to us to be far from clear that the "Oldhamia" was not being taken into Vladivostock for adjudication when the wreck took place. The Prize Court is the appropriate Tribunal for determining All questions as to the character of the cargo and as to the wreck of the vessel and subsequent destruction of the cargo.
As regards the "St. Kilda" and the "Ikhona," His Majesty's Government
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would be quite justified in proceeding diplomatically, but it appears to us that, as a matter of policy, it is probably desirable that the course advocated by Sir Charles Hardinge of sending these cases, in the first instance, to the Prize Court should be adopted. The question whether the cargoes in these cases were contraband is independent of the broad principle asserted by His Majesty's Government that whether they were contraband or not, the destruction of the vessel at sea entitles the owners to compensation. If it be decided in the Prize Court that the cargo was innocent, the difficulty will be solved, and compensation will be awarded to the
owners.
It is, however, essential, if the owners are asked to take proceedings, that it should be made quite clear to them and to the Russian Government that His Majesty's Government will, irrespective of any finding of the Prize Court, insist upon compensation on the broad ground of principle that the destruction of neutral vessels without adjudication-entails in every case liability for the damages sustained.
6. We have only to add that if it should be decided, as a matter of policy, to invite the owners to take proceedings in the first instance the owners in the cases of the "Cilurnum," the "Hipsang," the "St. Kilda," and the "Ikhona," should be informed fully of the grounds which render this course expedient, and that they, and also the Russian Government, should be told that if it should become necessary ultimately to press for payment through the diplomatic channel, the costs incurred by them in these proceedings will be added to their claims.
We do not think that there is in the statement which has been publicly made on behalf of His Majesty's Government, that claims in respect of sunk vessels would be pressed irrespective of the decisions of the Russian Prize Court, anything incon- sistent with the policy of having these cases first taken before the prize Courts. Indeed, on the 31st July, 1905, Your Lordship, in answer to a question put by the Earl of Camperdown in the House of Lords, used language clearly indicating that you contemplated proceedings in the Prize Court in such cases (Hansard, vol. cl.,. 893). What has been said, however, makes it indispensable that the right of His Majesty's Government to enforce these claims should be reserved, and that it should be made clear that they in no way consent to be bound by the decisions of the Prize Court in such cases.
Law Officers' Department,
November 8, 1905.
R. B. FINLAY. EDWARD CARSON.