Opinion Number. 1628

Subject

ownership of captured enemy warship wreck of german warship ‘emden’: scrap metal taken therefrom by japanese vessel ‘anyo maru’ and conveyed to singapore: ownership of wreck: abandonment by commonwealth

Date
Client
The Minister for External Affairs

The Minister for External Affairs has forwarded for advice the following letter received by him from the Japanese Consul-General, Sydney:

I have the honour to state that an official report was recently received by the Japanese Government from the Japanese Consul-General at Singapore that the ‘Anyo Maru’, a Japanese vessel which carried some scrap metal taken from the wreck of the ‘Emden’, is being detained by the police authorities at Singapore, pending the arrival of a reply to the enquiries addressed by them to the Australian Government–whom they allege to be the owners of the wreck–as to how this matter should be dealt with.

I have also the honour to inform your Government that, according to the views of the Japanese Government on this question, it is undoubtedly legitimate to infer that, although the wreck is lying in the coastal waters off the Cocos Islands, which are under the jurisdiction of the Straits Settlements Government, it is, by the rule of international law, a property without owner, as the wrecked warship has been abandoned for a long period of time, and no country has ever claimed ownership of it, whether explicitly or tacitly. Therefore, it follows that neither the allegation by the authorities in Singapore that the wreck of the ‘Emden’ belongs to the Australian Federal Government, nor their right to detain the ‘Anyo Maru’ on the charge of having illegally taken the scrap metal in question can be admitted.

I should be grateful if you would be good enough to inform me of the opinion of your Government as to the ownership of the wrecked warship.

In November 1914, the German warship ‘Emden’ was driven ashore on North Keeling Island during an engagement with the Australian cruiser ‘Sydney’–see Official History of Australia in the War, Vol. IX. This Island is one of the Cocos or Keeling Islands, which lie in the Indian Ocean about 700 miles south-west of Batavia, and for purposes of administration is incorporated as part of the Settlement of Singapore.

The following view is expressed in Pitt Cobbett’s Leading Cases on International Law, Vol. II, at page 275:

Enemy warships are always the subject of attack, but if captured they become at once the property of the Crown and are not treated as prize; nor is their capture subject to adjudication by the courts …

I presume that the Authorities at Singapore hold the opinion that, as the ‘Emden’ was captured by an Australian warship, she became the property of the Crown in right of the Commonwealth of Australia.

I can find nothing, however, to indicate that the Commonwealth has ever taken possession of the wreck of the ‘Emden’ or made any claim to its ownership. At page 207 of Vol. IX of the Official History referred to above (published in 1928) appears the following passage:

The wreck of the ‘Emden’ was visited shortly after the departure of the ‘Sydney’ by the auxiliary cruiser ‘Empress of Japan’, which brought away the signal log and mementoes. At the end of November, and again in the following January, the wreck was inspected by HMS ‘Cadmus’. In 1915 a Japanese firm offered to repair and refloat her, and the little ‘Protector’ was sent off to report on her condition and salvage such guns, etc., as might be recoverable. The wreck, however, was already too battered by the waves to admit of refloating; and a visitor to the Cocos group in 1919 reported that almost all traces of the ‘Emden’ had disappeared.

If, therefore, the ‘Emden’ became the property of the Commonwealth by capture, I think it must be assumed that she was abandoned by her captors, and thereupon became subject to the law relating to wrecks. It may be that under this law she became the property of the Crown in right of the Government of the Straits Settlements, but it is not necessary for me to advise on this question.

[Vol. 31, p. 255]

(1) Alexander John McLachlan. Born 2 November 1872, Naracoorte, South Australia; died 28 May 1956, East Melbourne, Victoria. Admitted South Australian Bar 1895; Victorian Bar 1929. Senator for South Australia (Nationalist Party; United Australia Party) 1926–1944. Honorary Minister 1926–1929. Vice-President Executive Council 1932–1934. Minister in Charge of Development and Scientific and Industrial Research 1932–1937. Postmaster-General 1934–1938. Leader of the Government in the Senate 1937–1938. Acting Attorney-General periods between 1927 and 1938.