PUBLIC RECORD OFFICE
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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shareholders; that the individual shareholders have no interest in the real or personal property of the Company, but merely a right to a share of the proceeds of the Company when realised and divided amongst its members; that the Directors are carrying on the business solely for the benefit of the Company and not of its shareholders; and that there is no legal objection to the Directors using the
St. Tudno" for hire, provided they pay no dividends until the War is over.
On the 14th September, 1914, the Divisional Transport Officer at Southampton sought the authority of the Admiralty to employ the "St. Tudno," then laid up at Southampton, as a tender in transporting to Southampton prisoners from transports arriving at the Brambles, and on the 21st September the Admiralty telegraphed to St. Tudno " the MacIver Steamship Company, Limited, informing them that the was requisitioned for the Government service and asking them to arrange for the provisioning of her crew, and to prepare the vessel for service.
By letter of the 24th September the Company were sent a form of charter party -not effecting a demise in use by the Admiralty and were told that the "St. Tudno" had been taken on the terms and conditions contained therein; under this form of charter the Admiralty accept war risks and the owners are called upon to provide crew, stores, &c., and to take sea risks. It fixed no rate of hire, this being left to agreement or arbitration under the Proclamation of 3rd August, 1914. The Company soon began pressing for some payment on account of hire, and on the 16th October their solicitors wrote to the Admiralty pointing out that the St. Tudno" had been taken over by the Admiralty as from 3 p.m. on the 24th September; that the Company had paid and were paying a considerable sum out of their resources for wages of crew, provisions, insurance, and stores, and that the Company had no property except the "St. Tudno" and a balance at their bankers, which balance was being rapidly exhausted by the claims upon it for the purposes of the upkeep of the vessel.
·
Under these circumstances they pressed for an immediate settlement of the question of the hire to be paid to their clients, or, if this should not be possible, that a payment should be made to the Company of, say, £750 on account of the expenses thereby incurred and being incurred, which money would be applied exclusively in the payment of liabilities to British subjects, and payment could be made without prejudice.
The papers were referred by the Admiralty to the Solicitor to the Treasury for advice, and he pointed out that there was no objection on the ground of " trading with the enemy " to payment being made to the Company in respect to the use of the vessel by the Admiralty, but he suggested that there were grounds on which the vessel might be seized as prize, despite her British registration, seeing that the German Company appeared to control the British Company and its Directors abso- lutely in ordinary time, so much so that the German Company might be considered to be practically the owners of the vessel and its managers; and he also pointed out that the vessel, since its possession by the MacIver Company, had only been used for the German Company's purposes, for which it had been fitted out in Germany.
The Solicitor added that if the vessel were seized as prize it might perhaps be liable merely to detention during the War, subject to requisition, so that working expenses would fall upon the Admiralty, though in such case the German Company would, in any event, fail to secure a profit return as a result of the Admiralty's user. He further added that he thought there was no objection to the payment of a sum to the English Company without prejudice and solely in respect of working cost of the vessel, in order that there might be no awkward interference with her services under the Admiralty.
The Admiralty accordingly wrote to Messrs. Pritchard and Sons on the 20th November informing them that they would pay to the MacIver Company £750 on production of some evidence that such an expense had been incurred in running the vessel, and would make further payments at intervals on production of similar evidence. It was added that the payments would be made without prejudice, and that it was noted that the money would be applied exclusively to the payment of liabilities to British subjects.
The MacIver Company has continued working the vessel for the Admiralty on these terms, and the Admiralty now desire to be advised whether prize proceedings can properly, and should, be commenced against the s.s." Tudno," despite the pro- visions of Article 57 of the Declaration of London to the effect that the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly, the Declaration having been adopted for the purposes of the present War by the
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Order in Council of the 29th October, 1914, printed at page 78 of the 2nd Supple ment to the Manual of Emergency Legislation.
On this point a copy of a Memorandum written by Mr. Norman Bentwich accompanies this Case, and in addition to the cases quoted by him therein, reference may also be made to the "Bourse" [2 English Prize Cases 94], The "Success [ibid. at the top of page 141], and the " Industrie" [ibid. at page 300].
19
It seems open to contention that the Declaration of London was only intended generally for the regulation of affairs between neutrals and belligerents, and not between belligerents themselves, and that in such a case as the present, where the question is whether a vessel purporting to be a British vessel is, in fact, an enemy vessel, it remains open to follow the old established principles of prize law unaffected by the terms of the Declaration.
It is further suggested that it is open to argument that the Hague Convention of 1907 relative to the status of enemy merchant ships at the outbreak of hostilities is not of necessity applicable to the case of this vessel. The Convention relates to merchant ships belonging to one of the belligerent Powers which, at the commence- ment of hostilities, find themselves in an enemy port and clearly contemplates the case of a vessel which openly belongs to the enemy Power, and not one which, on the face of things, is a vessel belonging to the home Power.
The Law Officers and Mr. Ricketts are requested to advise :-
(1) Whether steps can and should be taken for the seizure of the s.s.
"St. Tudno " as prize?
(2) And, if so, whether her condemnation should be asked for or merely her
detention during hostilities?
(3) Generally on the case.
OPINION.
1, 2, and 3. We are of opinion, in view of the decision of the majority of the Court of Appeal in the Continental Tyre and Rubber Company (Great Britain), Limited v. Thomas Tilling, Limited, 31 T.L.R., p. 77, that no steps should be taken in the Prize Court in respect of this vessel.
Law Officers' Department,
26th March, 1915.
JOHN SIMON.
STANLEY O. BUCKMASTER. G. W. RICKETTS.
Page 690Page 691
R
35170/1916.
(Canada.)
No. 182A.
(GENERAL.)
PUBLIC RECORD OFFICE
Reference-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
」
FOREIGN OFFICE TO LAW OFFICERS.
[Censorship of letters passing through British territory from one neutral country to another.]
GENTLEMEN,
Foreign Office,
February 19, 1915.
I HAVE the honour, by direction of Secretary Sir E. Grey, to enclose, for your consideration, copies of four notes from the Swiss Minister (Papers (A), (B), (C), and (D)), and a Memorandum from the Italian Ambassador (Paper (E)), relative to the opening in Singapore of letters from Switzerland and Italy in transit, through the local British postal administration, to destinations in neutral territory.
It will be seen that M. Carlin and the Marquis Imperiali question the right of His Majesty's Government to submit to censorship correspondence in transit from and addressed to neutral countries, basing their contention on the Universal Postal Convention, 1906, Article 4, sub-section (1), which provides that "The right of transit guaranteed throughout the entire territory of the Union." The Italian Ambas- sador also cites Article 1 of The Hague Convention No. 11, 1907, which declares that, with certain irrelevant exceptions, "The postal correspondence of neutrals or belligerents, whatever its official or private character, found at sea on board a neutral or enemy ship is inviolable."
is
The question of the rights of censorship possessed by His Majesty's Government, in the circumstances already described, forms the subject matter of a note from the Director of Military Operations (Paper (F)) and of a letter from the Secretary of the War Office (Paper (G)), copies of which are enclosed herewith. You will observe that the Director of Military Operations proposes to submit to censorship neutral correspondence from America of the kind which the Swiss Minister and the Italian Ambassador consider to be immune from interference under the provisions of inter- national Agreements ratified by His Majesty's Government, and that the letter from Sir R. Brade (Paper (G)) contests the meaning placed upon the Article of the Universal Postal Convention cited by the Swiss Minister, and quotes Articles 2 and 16 of the same Convention in support of the views held by the Army Council.
A similar question arose during the Boer War. In pursuance of the Martial Law Regulations which were in force in Cape Colony, the military authorities were in the habit of opening correspondence in transit to German South-West Africa. The German Government objected to the practice, and the question whether it was consistent with the Postal Convention then in force was submitted to the Law Officers. Copies of the note received from the German Ambassador on the 5th March, 1902 (Paper (H)), and a note submitted by the Dutch Minister on the 18th March, 1902 (Paper (1)), which were submitted to the Law Officers, are enclosed herewith. Your predecessors reported on the 31st March, 1902,* that letters transmitted under the Convention were liable to examination in the same way as other letters, and that the provisions of the Convention must be regarded as applicable to a state of peace. A copy of the opinion is enclosed for convenience of reference (Paper (J)).
Since that date the Postal Convention of 1906 has replaced the previous Convention, but the provisions relating to this question have not undergone material change.
In view of the opinions now expressed by the Italian Ambassador and the Swiss Minister, and the importance of the principle at stake, Sir E. Grey would be glad if you will take the enclosed papers into consideration and favour him with your opinion whether His Majesty's Government possess the right to submit to censorship correspondence passing in transit between neutral countries through British postal administrations.
No. 13$ in Vol. VI.
(3816-2) Wt. 20-1020, 25. 8,16. D&S. G. 1.