Lord Parker of Waddington:-

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 1894 co