CO885-(16-18) — Page 11

PUBLIC RECORD OFFICE

Reference :-

PLC.O.885

سياسي

16 PUBLIC RECORD OFFICE, LONDON

| ALLY WITHOUT PERMISSION OF THE

BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-—NOT TO |

2

or the naval officer under whose orders or guard or immediate control the ship is brought in responsible for the safety of the ship until she is again allowed to proceed on her voyage: at what point do such liabilities (if there are any) cease?

3. It would seem that the answer to these questions would largely depend upon whether so sending a ship into port for examination is to be regarded as a proceeding amounting to seizure or merely as a way in which the right to visit and search is properly exercised.

It is considered that in cases of seizure the captor's position depends on whether the seizure ultimately is pronounced to have been justifiable or not; that for seizure to be justifiable so as to relieve the captors of liability it is not necessary that any condemnation should have followed, though there must have been reasonable justification for the seizure; that if there has been such reasonable justifi- cation the captors will be under no liability for damages, and indeed may be entitled to expenses themselves, and, their possession being regarded as a rightful possession, they will not be liable for accidents occurring to the ship while she is under their control; that if, however, there is no reasonable justification for the seizure the captors may be liable in damages: and that further, insomuch as their possession is never other than wrongful they will be liable for all that occurs to the ship while they hold such possession.

It must, of course, be added that a possession originally rightful may become wrongful as from the beginning if it is abused, and will in such a case subject the captors to all the liabilities of wrongful possession. The right, therefore, to seize is by no means an absolute right.

It is submitted, however, that the right to search a ship is not limited to cases in which there is reasonable cause for suspicion and search, but it would appear to be absolute, and it is also submitted that it is a right to do all things reasonably necessary for the purposes of examination and to hold a rightful possession till such purposes are accomplished. No doubt this right also may be abused as the right of seizure may be, and when this is the case the searchers may be liable in damages or responsible for the safety of the ship. But for such a result to follow, it is submitted that positive misconduct or negligence on the part of the searchers would have to be proved.

4. Doubtless because in former times it entailed little delay and no exposure of the ship to perils other than those of the voyage in which she was engaged, there do not appear to be any cases in the books dealing specifically with liabilities arising on the exercise of the right of visit and search, though there are cases which show that the right exists.

Cases which deal with the captors' liability for damages in cases of wrongful seizure are the "Elize" (2 E.P.C., p. 327) (Spinks 88); the "Ostsee" (2 E.P.C., p. 432) (9 Moo. P.C. 150); the Leucade" (2 E.P.C., p. 473) (Spinks 217); the

Aline and

Fanny" (2 E.P.C., p. 537) (10 Moo. P.C. 491); see also the "Postillion" (1 E.P.C., p. 20) and the "Triton" (1 E.P.C., p. 352) (4 C. Rob. 78). On the liability attaching to captors who, though justified in their seizure, are guilty of some wrongful conduct subsequent thereto, see the "Peacock" (1 E.P.C., p. 381) (4 C. Rob. 183) and the

Anna" (1 E.P.C., p. 499) (5 C. Rob. 373).

14

The need for justification is also dealt with in Art. 64 of the Declaration of London, and in the official report attached to the Declaration, but it appears that the Article makes little, if any, change in the law as illustrated by the cases to which reference has been made. Cases which deal with the liabilities of captors in respect of casualties occurring to ships in their possession are the "Betsey" (1 E.P.C., p. 63) (1 C. Rob. 93) cf. the "Der Mohr" (1 E.P.C., p. 395) (4 C. Rob. 314): the "Maria No. 2" (1 E.P.C., p. 401) (4 C. Rob. 348); the "John No. 2" (2 E.P.C., p. 232) (2 Dods 336). Reference may also be made to the following American cases :-The Apollon" (9 Wheaton, p. 362, cf. Storey's Prize Court Practice, Pratt's Edition, at p. 35 on the exemption of captors from liability where the seizure has justifiable cause) and Hooper v. U.S. (22 Court of Claims, p. 408, esp., p. 439). See also the Charming Betsey" (2 Cranch, p. 64) and the "Statira" (2 Cranch, p. 97). American decisions upon the liability of captors in the case of the loss of a vessel are the "Tom" (29 Court of Claims, p. 897) and the "Carolina Wilmans" (29 Court of Claims, p. ). The Treasury Solicitor has not been able to verify the

American references.

5. The liability in cases of seizure depending on such considèrations and being such as these cases illustrate, it is submitted that there is a difference between the liability in such cases and that in the case of search, which difference is really the result of a distinction between the nature of the two rights. The right to seize

3

depends upon whether there is reasonable justification for seizure the right to visit and search is a right to search, with or without cause, in a reasonable way. How- ever reasonably and properly the operation of seizure is conducted, unless there is reasonable justification the seizors may be held to be liable for damages, and, if events so require, for casualties to the ship. But where the right invoked is the right, not of seizure, but of visit and search, no matter how the search ends, so long as the manner in which it is conducted is reasonable and proper and so long as the searchers do nothing beyond what can reasonably be considered as operations of search, they will, it is submitted, be subject to no liability.

6. If, then, this sending into port or from one port to another is to be regarded as in its essence an exercise of the right to visit and search, it will follow that the question for the Court on claims occurring on, or as a result of, it will be the question whether it was reasonably necessary for purposes of examination, and whether, indeed, it was part of the process of search. Against the contention, how- ever, that it is so to be regarded it will no doubt be argued that it is in its nature less an exercise of the right of search than a species of seizure. The arguments apparently may be put in either of two ways. On the one hand it may be said that this going into port is simply a part, and a necessary part, of the searching process; that seizure neither takes place, nor is intended to take place, and that the incidents of the proceedings are the incidents only of search. On the other hand it may be said that, even though sending into port may be part of the process of search, it may none the less amount in itself to a seizure, and that any seizure carries with it the liabilities of seizure, even if without such seizure the right of search cannot be exercised. On this view seizure is a physical act taking place whenever-save merely for stoppage at sea-a control is exercised over the ship without her owner's consent. A further view may be that it is only if a vessel be either taken into port unreasonably or detained an unreasonable time that she must be regarded as having been seized, but that then she must be so regarded.

7. The question of responsibility for delay must probably be settled upon a consideration and examination of these principles alone. But the question of responsibility for casualties occu.ring to a ship is perhaps complicated by a further consideration, since in many cases at the time when the casualty occurred the ship may be, for the purposes of navigation, the hands and under the control of the master, the agent of the owners, save in so far as the master is compelled to make for a port selected for him. The question then arises as to whether casualties occurring in the ordinary course of navigation by the owners' master should be chargeable to the persons whose only responsibility in fact is for the selection of the port to which the master must sail. It is plain that a disaffected master might easily cause considerable trouble by negligent navigation, and though no doubt it may be said that persons trusting a master in such circumstances do so at their peril, yet practical inconveniences will undoubtedly result if every ship proceeding into port for examination has to be treated with the watchfulness that would be necessary if the examiners were responsible for her safety, even when they were not navigating her themselves.

-

THE Opinion of the Law Officers is requested upon the following points, both especially with reference to the case of the s.s." Kentucky" and generally:

1. What is the liability of the Admiralty and/or its Officers in respect of ships which have been sent into a port or to a more convenient port for examination (a) for delay to the ship so caused (b) for loss or casualty occurring to the ship while she is so proceeding into port or while she is in the port and being examined or in process of leaving the port, and under what heads could damages be recovered in respect of delay assuming that liability for it exists?

2. At what point do these liabilities (if there are any) cease, and, in particular, does this point occur before or at the time of or after the ship is released and proceeds on her voyage?

3. Whether if a casualty occurs to such a ship so proceeding or so in port the facts that the ship at the time is de facto under the control of her own master and crew for purposes of navigation or that their negli- gence, default, or error of judgment (if anyone's) has been responsible for the casualty will make any difference to the liability of the Admiralty and its officers.

4. Generally upon the questions raised or referred to in the case.