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APPENDIX A.-REPORTS.
No. 3.
THIRD INTERIM REPORT OF THE OVERSEA PRIZE DISPOSAL COMMITTEE.
MAY IT PLEASE Your LORDSHIPS:
THE Committee appointed by Treasury minute of 11th November, 1914, "to report in what classes of case it is expedient that prize ships captured or detained at ports outside the United Kingdom should be moved for sale or disposal to other ports, or should be chartered for purposes of trade, and to make the necessary arrangements in such cases as are remitted to them by the departments concerned in the administration of the territories where the prize ships are detained," and empowered by Treasury minute of 5th January, 1915, to take the necessary steps for chartering for use in British commerce such enemy ships detained in this country as may be required for the purpose," beg to submit the following report upon their reference.
The Committee desire to call attention to serious difficulties which they have experienced in their attempts to put into force the procedure recommended by the report of the Conference held on the 10th September, 1914, under the presidency of His Majesty's Procurator-General, to consider the suggestion that British Prize Courts should be authorized either to send on captured enemy vessels to the port of their original destination when such a course is at all practicable, or-in the alternative to permit the cargo to be transhipped and sent on in another vessel.
It will be remembered that the procedure recommended by the report was that the ships concerned, with any enemy cargo on board, should be requisitioned by the Admiralty under Order XXIX. of the Prize Court Rules, and that the British and neutral cargo should be released by the Court on consent of the Proper Officer of the Crown, either on proof of title to the satisfaction of the Proper Officer, or, failing such proof, on bail or other sufficient security for the value of the cargo.
The particular cases which were in fact the foundation of the report, although the names of the ships were not actually mentioned in it, were those of three German steamships-the "Hamm" and "Apolda," which were detained at Capetown on their way to Australia at the outbreak of the war, and the "Birkenfels," which came into Capetown in the course of a voyage from the United States to Australia shortly after the outbreak of war, and has since been condemned as prize.
With the exception of some delay at the beginning of October, when it was thought that the Union Government would require to take up these vessels for transport purposes, negotiations have been in progress ever since the date of the report, with the object of moving the vessels in accordance with the procedure there laid down, but the vessels still remain at Capetown.
This delay has in part been caused by the difficulty of getting into touch with any person or body of persons willing to represent the British cargo owners and either guarantee, or undertake the responsibility of collecting from them, the expense of the transactions. The cargoes, as is frequently the case, are made up of many hundreds of different consignments, and negotiation has only been made possible by the suggestion of the Commonwealth Government that they would be willing on certain conditions, to undertake the responsibilities above referred to. A more serious difficulty, and one which has also been encountered in other cases, has been the neglect or refusal of the bulk of the consignees to prove title or give bail at the port of detention, so that it has been impossible to release their cargo without deviating seriously from the established procedure, and impossible to ascertain, or even conjecture, what part of the cargo (if any) bears enemy character.
To some extent this attitude is, of course, unreasonable. A Prize Court is responsible for cargo brought within its jurisdiction, and may well think that, as the law now stands, it cannot allow the goods to leave its jurisdiction without being satisfied of their innocent character, or providing by hail against the contingency of their being proved liable to condemnation.
Consignees, however, resent the very considerable trouble and expense involved in the usual procedure. The documents upon which title depends are scattered all over the world, and have to be recovered and forwarded; agents have to be appointed to represent the claimants at the port of detention, and, if for any reason title cannot be proved before the ship is ready to sail, the claimants must go to the expense of providing security.
APPENDIX A.-REPORTS.
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The consignees, whose goods have been arrested in the course of a voyage which was in its origin perfectly innocent, do not understand the necessity of incur ring these expenses, and the result is that a large proportion of the cargo remains unclaimed, or, if claims are put in, they are not supported by the necessary proof. It may, perhaps, be thought that persons who will not take the trouble to establish their claim to their property do not deserve consideration, but it must be rem.eml ered that a ship may represent a great number of claimants (in the case of the Birkenfels the number is said to be 2,290), often so scattered These claimants have, as a as to make common action practically impossible. rule, no understanding of the nature of prize law and jurisdiction, and in their view there is no reason why a cargo bound for Australia should be held up and tried at Capetown, when it might, to all appearances, just as easily be taken on to its destination and adjudicated there, and the cost recovered from the consignees on a general average basis in due course.
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Unfortunately, the provisions of prize law and procedure at the present moment make any such course impossible, except in very straightforward cases and where both the Courts concerned are willing to co-operate and to take a broad view of their powers. In other cases attempts to carry out the procedure recom- mended by the Conference have led to much waste of time, and even considerable irritation of public feeling between the different parts of the Empire concerned.
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Moreover, even where consignees are willing to prove their titles or give bail, there is a practical difficulty in arranging the matter. To enable bail to be fixed for the various consignments, these have to be appraised by the Court in accordance with the rules. Appraisement, however, is, in the case of a large general cargo, impos- sible unless the ship is at least partially discharged. It would be unfair to expect the claimants to give bail for the invoiced value of their goods, having regard to the strong probability of deterioration or damage having taken place, and no means of ascertaining the condition of the goods exist without actual inspection. this respect the procedure laid down in the Prize Court Rules is unsuited to modern requirements. We are trying to do something which, so far as we know, has not before been attempted, and the machinery in existence is not suitable for the purpose.
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Your Committee have, therefore, come to the conclusion that, in order to meet the difficulties indicated above, it is urgently desirable to amend the Prize Law so as to enable proceedings in suitable cases to be transferred to Courts more conven- iently situated than the ports of detention. It is essential that the ships at Cape- town should be moved as soon as possible, and although the "Birkenfels," the cir cumstances of which are comparatively simple, will probably be able to sail in the course of the next month. there seems to be little probability of getting the other two vessels under way without the aid of legislation. Moreover, your Committee has received applications from persons interested in the cargoes of many of the German ships now before the Prize Court at Alexandria to have those ships moved, with their cargoes, to their respective destinations. These ships carry very valuable cargoes, and, in the present condition of the freight market, it is extremely desirable that there should be as little delay as possible in getting them on and freeing them for use in general trade.
With regard to the form which the proposed legislation should take, our attention has been called to certain provisions of the Naval Prize Bill, 1911, as amended by Standing Committee C of the House of Commons, a copy of which is enclosed for convenience of reference. Clause 3 of that Bill proposed to confer on all Prize Courts in British. Possessions all such jurisdiction (subject to the terms of the Admiralty warrant in each case) as was conferred on the Prize Court in this country, while Clause 5 of the same Bill directed that every Prize Court in a British Possession should enforce within its jurisdiction all orders and decrees of the High Court and of any other Prize Court in a British Possession in prize causes, etc.
It is possible that, if these provisions were made law, they might to some extent be utilized to relieve the situation which has arisen. Your Committee con- sider, however, that it will be more satisfactory if the proposed legislation defines more precisely the powers which it is proposed to confer on the oversea Courts. Under an enactment so wide in terms as the clauses above referred to, it would be hard to forecast what line different Courts might take, and it might in many cases prove impossible to secure orders of the kind contemplated. Moreover, a difficulty might arise in adjusting the rights and claims of so many Courts of con- current and equal jurisdiction, unless the powers which it is proposed that they should exercise were more clearly indicated.