Opinion Number. 1693



The Secretary, Department of External Affairs

I refer to your minute of 19th February, 1942, forwarding copy of a letter from the American Legation on the subject of certain proposed changes in the procedure with respect to prizes taken by the United States Naval Forces in foreign waters.

I would suggest that the matter is one in which uniformity of policy between all parts of the King’s dominions is highly desirable, and which should be settled, therefore, in consultation with the United Kingdom Government.

In considering whether the Commonwealth Government should signify its willingness to concur in the first two proposals, it may be desired to consider whether they are in accord with International Law and with British practice.

With regard to the proposal to give certain United States courts jurisdiction in prize cases without having the res brought before those courts, it appears to be recognized in International Law and by British courts that a prize court may properly adjudicate in respect of a prize carried into a port of an allied belligerent. The following passage occurs in Colombos on the Law of Prize (1926) at page 260:

If a belligerent captor’s court is not convenient, then the prize may regularly be carried into an allied court. This practice is in harmony with the principle maintained by Lord Stowell in the Christopher ((1799) 2 C. Rob. 207) and has largely been resorted to by the Allies during the Great War.

In the case referred to, the British court recognized a condemnation in France of a British ship taken by a French privateer into a Spanish port, France and Spain being at the time belligerent allies.

The position as regards ships taken to neutral ports is more difficult. Colombos (op. cit., page 42) refers to the case of The Polka (1854), Spinks, 57, 58,(1) in which Dr. Lushington decided that he was entitled to proceed to the condemnation of an enemy ship although she was lying in a neutral port. After referring to other cases, the learned author says:

But in all the English, American and French cases cited, the jurisdiction of the court depended on the fact of the captor’s retaining possession and control over the ship. The Court would have lost its jurisdiction by the re-capture, escape or voluntary discharge of the vessels, as any one of those circumstances divests the captor from his control of the prizes.

At page 260 of the same work the following passage occurs:

The question arises whether the captor may bring his prize into a neutral port if his own ports or those of his ally are too distant and he is unable to reach them. Lord Stowell in the Peacock ((1802) 4 C. Rob. 185, 189), whilst laying down the general rule that captors should not take prizes into neutral ports, admitted that exceptional circumstances might occur where for some very particular reason it was necessary for the King’s ships to depart from this principle.

The learned author, in discussing the jurisdiction of American Prize Courts (at page 39) says that the courts are also entitled to decide questions relating to property outside their custody, such as, for instance, if the prize was carried into a neutral port. He adds, however, that in the latter case it can only be adjudicated upon while the possession of the captor remains; for if it be divested in fact, or by operation of law, that possession is gone which can alone sustain the jurisdiction.

The law on the question is stated in Oppenheim’s International Law (5th Edition, Volume 2, page 386) as follows:

To which port a prize is to be taken is not for International Law to determine; it only provides that the prize must be taken straight to a convenient port of adjudication, and only in case of distress or necessity is delay allowed. A prize may, in case of distress, or in case she is in such bad condition as prevents her from being taken to such a port, if the neutral State concerned gives permission, be taken to a near neutral port, and in that event the capturing man-of-war as well as the prize enjoys there the privilege of exterritoriality. But as soon as circumstances allow, the prize must be conducted from the neutral port to a convenient port of adjudication, and only if the condition of the prize makes this absolutely impossible may the Prize Court give its verdict in its absence after hearing proper evidence.

With regard to the proposal to provide for requisition of prizes in certain cases, whether on the high seas or in ports of co-belligerents, the position in International Law is fully discussed in The Zamora ((1916) 2 A.C. 77). The following passage occurs at page 106 of the report:

On the whole question their Lordships have come to the following conclusion: A belligerent Power has by international law the right to requisition vessels or goods in the custody of its Prize Court pending a decision of the question whether they should be condemned or released, but such right is subject to certain limitations. First, the vessel or goods in question must be urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security. Secondly, there must be a real question to be tried, so that it would be improper to order an immediate release. And, thirdly, the right must be enforced by application to the Prize Court, which must determine judicially whether, under the particular circumstances of the case, the right is exercisable.

It is not clear from the material before me whether the proposal is for requisition without application to a Prize Court, but, if the proposal goes that far, it would seem to go beyond the recognized position in International Law, as stated by the Privy Council, at least as regards neutral ships. The passage quoted also appears to apply to enemy ships although most of the discussion was restricted to the question of neutrals.

The third proposal does not appear to raise any question of international law, but legislation might be necessary to implement it fully in Australia. It would, I think, be within the power of the Commonwealth to enact such legislation.

The first two proposals are not stated in sufficient detail to enable me to express an opinion as to whether, if they are agreed to, any legislation in Australia would be necessary. Such legislation might be necessary to enable Australian courts to recognize changes of ownership resulting from condemnations or requisitions made by United States Courts or authorities.

[Vol. 34, p. 370]

(1) (1854) 164 ER 275; 1 Spinks 447. See also Hart v Hart (1854) 164 ER 383; 2 Spinks 193.