In Prize Ss Reichenfels

The Colonial Court of Admiralty in Prize

1914 Present: Wood Renton C.J. and P.

IN PRIZE ss. " REICHENFELS."

Cause No. 5.

Alien enemy-Locus standi in Prize proceedings.

An alien enemy has no locus standi in Prize proceedings, unless he is in a position to rely upon some ground which exempted him from the general disability of alien enemies in this respect. " An alien may show, if he can, that, although an alien, he is not an enemy, or that, although an enemy, his locus standi baa in some way been recognized by the Sovereign. It is in such cases as these, and in such cases alone, that under the new procedure, as under the old, he can pat forward before the Court the grounds of his claim."

THE facts appear from the judgment.

The Hon. Mr. Anton Bertram, K.C., A.-G., and Obeyesekere , C.C., for the Crown.

Allan Drieberg, for the claimants.

October 23, 1914. Wood Renton C.J. and P.-

On the motion by the Attorney-General for the first hearing of the above cause, Mr. Allan Drieberg, as counsel on behalf of the Deutsches Kohlen Depot G. M. B. H., who are the alleged owners of 4,354 tons of coal forming part of the cargo of the Reichenfels at the time of her capture, applied for the entry of his appearance in these proceedings. This application was opposed by the Attorney-General on the ground that the Deutsches Kohlen Depot are alien enemies, and have, therefore, no locus standi in this Court. This contention raises an interesting point of law, which was fully and ably ragued before me on both sides. I have no doubt but that the Attorney-General's argument is entitled to prevail. The same point has recently been considered by the Prize Court in England in two cases: the Chile and the Marie Glaeser. In the former of these cases, Sir Samuel Evans expressed, without directly deciding the matter, a strong opinion against the right of an alien enemy to appear in Prize proceedings, unless he was in a position to rely upon some ground which exempted him from the general disability of alien enemies in this respect. In the latter case this obiter dictum assumed the form of a direct decision in the same sense.

The authorities, when carefully looked into, establish beyond all question the soundness of the conclusion at which the learned President of the Prize Court in England has thus arrived. The Deutsches Kohlen Depot is admittedly a company incorporated in Germany and under German law, and the present case has been argued on the assumption that it possesses no commercial domicil in this country. In these circumstances, has it any locus standi here? Mr. Allan Drieberg strenuously argued that this question should be answered in the affirmative; in the first place, because the policy of the law in regard to alien enemies has been modified by recent international treaties, such as The Hague Convention, while the new Prize Rules (see Order III., r,. 5) themselves recognize the status of aliens; and, in the second place, because the Crown had itself made his clients a party to the proceedings by serving on them a notice of the motion for the appraisement and sale of the cargo under the rule 93 of the old rules. Before dealing with these contentions, I may point out the basis of the disability with which we are here concerned.

The Maritime Jurisprudence of England, in common with that of most other civilized countries, has from the earliest times prohibited all trading with a public enemy, unless with the permission of the Sovereign.

" In my opinion, " said Lord Stowell (then Sir William Scott) in The Hoop, 1 " no principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the State. Who can be insensible to the consequences that might follow if every person in time of war had a right to carry on a commercial intercourse with the enemy, and under colour of that had the means of carrying on any other species of

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