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1916 Supreme(SC) 19
Privy Council
Sir Arthur Channell, Wrenbury , Parmoor , Sumner, Justice Lords Parker of Waddington, JJ.
In the Matter of Part -Appellant
Versus
Cargo ex Steamship "Zamora." -Resopndent
Privy Council Appeal No. 109 of 1915
Decided On : 07-04-1916
Important Points
Subject
International Law - Prize Law
Act Referred
Prize Court Act 1894: S.3
Naval Prize Act 1864: S.55, S.13, S.53, S.25
Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1891
Rules Publication Act 1893
Act of Congress 1863: S.2
Headnote
(B) Inherent powers of the Court - Primary duty of a court in custody of property is to preserve the res for delivery to the party that ultimately establishes title - Power to sell or realize property is limited to cases where the res is perishable or preservation is impossible or difficult, and cannot be exercised merely for convenience or at the request of a party. (Para 23)
(C) Right of Requisition (Right of Angary) - A belligerent power has a right under international law to requisition vessels or goods in the custody of its Prize Court pending adjudication, subject to three limitations: (i) the property must be urgently required for the defense of the realm, prosecution of war, or national security; (ii) there must be a real question to be tried, such that immediate release is improper; and (iii) the right must be enforced by application to the Prize Court for judicial determination. (Paras 34-41)
(D) Liability for Damages and Costs - In proceedings where the Crown is the party, the Crown or its representative officer may be held liable for damages and costs, assuming the liabilities that actual captors were subject to under previous procedures. (Paras 46-53)
Facts of the case:
A vessel and its cargo were seized as prize. The cargo included contraband. The executive sought to requisition the cargo under the procedural rules of the Prize Court. The lower court granted the requisition. The owners appealed, challenging the binding nature of the procedural rule and the executive's right to requisition without specific evidence of necessity.
Findings of Court:
The order for requisition was unjustified because there was no evidence that the goods were urgently required for national purposes and the evidence suggested the goods should have been released immediately.
Issues: Whether a procedural rule of the Prize Court can imperatively direct the court to allow requisition; whether the court has inherent power to sell property in its custody; whether international law permits the requisition of prize goods pending adjudication; and whether the Crown is liable for damages and costs in such proceedings.
Ratio Decidendi: The Prize Court is a judicial body administering international law; therefore, it cannot be bound by executive orders that attempt to alter that law. The right to requisition (angary) is a recognized international right but is not absolute; it requires judicial oversight and a showing of urgent necessity. The Crown, as the party in modern prize proceedings, assumes the liability for damages and costs to ensure claimants are not deprived of remedies available under international law.
Result: Order declared unjustified; appellants granted leave to apply for damages if they ultimately succeed in the proceedings for condemnation.
On the 8th April, 1915, the "Zamora" a Swedish steamship bound from New York to Stockholm with a cargo of grain and copper, was stopped by one of His Majesty's cruisers, between the Faroe and Shetland Islands, and taken for purposes of search first to the Orkney Islands and then to Barrow-in-Furness. She was seized as prize in the latter port on the 19th April, 1915, and in due course placed in the custody of the Marshal of the Prize Court. It is admitted, on the one hand, that the copper was contraband of war and, on the other hand, that the steamship was ostensibly bound for a neutral port. The question whether either steamship or cargo was lawful prize must therefore depend on whether the steamship had a concealed or ulterior destination in an enemy country, or whether the copper was by means of transhipment or otherwise, in fact, destined for the enemy.
On the 14th May, 1915, a writ was issued by His Majesty's Procurator-General claiming confiscation of both vessel and cargo, and on the 14th June, 1915, the President, at the instance of the Procurator-General, made an order under Ord. 29, R. 1, of the Prize Court Rules giving leave to the War Department to requisition the copper, hut subject to an undertaking being given in accordance with the provisions of Ord. 29, R. 5. This appeal is from the President's order of the 14th June, 1915.
It will be convenient in the first place to consider the precise terms of Ord. 29 of the Prize Court Rules . In so doing it must be borne in mind that though the order in terms applies to ships only, it is by virtue of Ord. 1, R. 2, of the Prize Court Rules equally applicable to goods. The first rule of Order 29 provides that where it is made to appear to the Judge on the application of the proper officer of the Crown that it is desired to requisition, on behalf of His Majesty, a ship in respect of which no final decree of condemnation has been made, he shall order that the ship be appraised, and upon an undertaking being given in accordance with Rule 5 of the order, the ship shall be released and delivered to the Crown. The 3rd Rule of the order provides that where in any case of requisition under the order it is made to appear to the Judge on behalf of the Crown that the ship is required for the service of His Majesty, forthwith, the Judge may order the same to be forthwith released and delivered to the Crown without appraisement. In such a case the amount payable by the Crown is to be fixed by the Judge under Rule 4 of this order. The 5th Rule of the order provides that in every case of requisition under the order an undertaking in writing shall be filed by the proper officer of the Crown for payment into Court on behalf of the Crown of the appraised value of the ship or of the amount fixed under Rule 4 of the order, as the case may be, at such time or times as the Court shall declare that the same or any part thereof is required for the purpose of payment out of Court.
The first observation which their Lordships desire to make on this order is that the provisions of Rule 1 are prima facie imperative. The Judge is to act in a certain way whenever it is made to appear to him that it is desired to requisition the vessel or goods in question on His Majesty's behalf. If this be the true construction of the rule and the Judge is, as a matter of law, bound thereby, there is nothing more to be said and the appeal must fail. If, however, it appears that the rule so construed is not, as a matter of law, binding on the Judge, it will have, if possible, to be construed in some other way. Their Lordships propose, therefore, to consider in the first place whether the rule construed as an imperative direction to the Judge is to any and what extent binding.
The Prize Court Rules derive their force from orders of His Majesty in Council. These orders are expressed to be made under the powers vested in His Majesty by virtue of the Prize Court Act 1894 or otherwise. The Act of 18
