The Minister for Defence asks to be advised as to the power of the Crown to requisition enemy merchant ships detained in Commonwealth ports, and the procedure necessary to be followed for so doing.

Article II of the Hague Convention relating to Enemy Merchant Ships provides that the detaining belligerent country may requisition such ships on condition of paying an indemnity.

This means, in my opinion, an indemnity against loss or damage; not that the shipowner has any claim for compensation for the use of the ship during the war. The shipowner's claim is only for restoration of the ship after the war.

The procedure for requisition is dealt with by Order XXIX of the Prize Court Rules 1914.

If the final decree for detention has not yet been made, motion is made to a Judge of the Prize Court, on behalf of the Crown; and the Judge (if satisfied that there is no reason to believe that the ship is entitled to be released) orders that the ship should be appraised, and that upon payment into court of the appraised value the ship shall be released and delivered to the Admiralty.

If the decree for detention has been made, the Crown Solicitor files a notice of requisition, and thereupon a commission issues to the marshal directing him to appraise the ship; and on payment into court of the appraised value the ship is released and delivered.

When the ship is required for the service of the Crown forthwith, the Judge may order that it be forthwith released and delivered without appraisement; and no payment into court need be made unless and until, on the application of a party, the amount to be paid has been fixed by the Judge. In such a case it is desirable that the Crown should have the ship valued, in order to be able to produce evidence in the event of subsequent proceedings for appraisement.

It is also for the Crown to consider whether it should go to the expense of insuring the ship.

The Admiralty has, at the request of the Commonwealth, granted to the Commonwealth a general authority to apply in their name to the Prize Courts under these rules.

The sum paid into court stands there as the equivalent of the ship which has been released; and it is assumed that on restoring the ship to the custody of the court the Commonwealth is entitled to an order for the payment out of the money, less any amount which the court may award for damage to the ship whilst under requisition.

[Vol.13,p.51]