THE SS. STEINTURM

103-NLR-NLR-V-25-THE-SS.-STEINTURM.pdf

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1828. In the Colonial Court of Admiralty of the Island of
Ceylon in Prize.
Present: The Hon. Mr, T. E. de Sampayo, President ofPrize Court.
THE S& “ STEINTURM.”
Cause No. 4.
Condemnation oj ship and cargo—Lawful prize—Order that ship be inpossession of the Government of Ceylon on behalf of Crown—Undertaking by Crown to restore ship whenever called upon—Application that order for redelivery be discharged, and for an orderdirecting the delivery of ship to His Majesty’s Government on behalfof Reparation Commission—Peace Treaty.
A merchant ship belonging to a German corporation was at- theport of Colombo at the outbreak of war and was seized by theCollector of Customs on behalf of the Crown.
On August 25, 1914, the Court ordered the Marshal to let theGovernment of Ceylon on behalf of .the Crown have possession ofthe ship on the Crown undertaking to restore the ship wheneverit might be called upon to do so by the Court. The ship wassubsequently on December 19 doclared by Court to be lawfulprize, and ordered to be detained subject to the order of August25. The Attorney-General moved* after tho Treaty of Peace thatthe order providing for the redclivery of the ship be discharged,and that an order bo made directing delivery of the ship to HisMajosty’s Government on behalf of the Reparation Commission.The German corporation opposed- the application, and made acounter-claim inter alia for the ship or its value.
Held, that the Court had jurisdiction to order delivery of theship to the Crown for the purpose of handing the same oyer tothe Commission.1
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T
HE facts are set out in the judgment. For previous order inthis case see 18 N. L. B. 127.
The Hon. the Attorney-General (with Solicitor-General and Janez,C.C.), for the Crown.
Hayley (with him Canakeratne), for the Deutche Dampfschiff-faharts-Gesellschaf t(t Hansa.”
3Vfay 15, 1923. De Sampayo A.C.J. and P.—
The ss. ” Steinturm ” was a German merchant ship of the” Hansa ” line of steamers, of which the proprietors were theGerman corporation, the Deutche Dampfschifffaharts-Gesellschaft” Hansa.” At the outbreak of the war between Great Britain andGermany, the “ Steinturm ” was at the port of Colombo, and wason August 5, 1914, seized by the Collector of Customs on behalf ofthe Crown. These proceedings were instituted on August 17, 1914,by the Crown for the condemnation of the <c Steinturm ” and hercargo. The matter of the cargo has been already dealt with, andthere is no need to refer to it now. In respect of the ship a writwas issued, and the other usual steps were duly taken. On December19, 1914, this Court on the application of the Attorney-General onbehalf of the Crown pronounced the ” Steinturm ” to have belongedat the time of the seizure thereof to enemies of thef Crown, and assuch to have been lawfully seized by the Principal Collector ofCustoms at the port of Colombo as good and lawful prize and asdroits and perquisites of His Majesty the King in his office asAdmiralty, and the Court ordered the said ship, subject to a certainorder of August 25, 1914, to be detained till further orders. Thisis exactly in the form of the order made in TheChile7 84 L. J. Pro.p. 1, and since known as the “ Chile Order” The order of August 25referred to above, was one made on an application of the Attorney-General by which the ship was requisitioned, and the Marshal Wasordered to let the Government of Ceylon on behalf of the Crownhave possession of the ship, the Crown undertaking to restore theship whenever it might be called upon to do so by the Court. Theship j&ppears to have remained under requisition up to the time ofthe present application, which is, that the order of August 25providing for the redelivery of the “ Steinturm ” to the Court bedischarged now, and that an order be made directing delivery ofthe ship to His Majesty’s Government on behalf of the ReparationCommission free of any obligation to redeliver the said ship to theCourt.
The Deutche Dampfschifffaharts-Gesellschaft “ Hansa ” hare .appeared and opposed the application and have also made a counter-claim, and prayed that the “ Steinturm ” be restored to them orits assessed value paid to them, that the full market freight for theuse of the said ship from the date of her delivery to the Crown be
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These•“Steinturm”
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1988.
De SampavoA.O.J.and P.
The ea.“Steinturm”
paid to them, and that for that purpose an inquiry be ordered asto the amount of freight due, and that all proper directions be givenfor the same.
In regard to this matter the effect of the Hague Convention of1907 and the Treaty of Versailles entered into at the conclusionof the war has to be considered. Article 1 of the Hague Conventionwas as follows :•—
“ When a merchant ship belonging to one of the belligerentpowers is at the commencement of hostilities in an enemy ■port, it is desirable that it should be allowed to departfreely, either immediately or after a reasonable number ofdays of grace, and to proceed, after being furnished witha pass, direct to its port of destination or any other portindicated to it.”
“ The same principle applies in the case of a ship which has leftits last port of departure before the commencement of thewar and has entered a port belonging to the enemy whilestill ignorant that hostilities had broken out.”
Article 2 of the same Convention was as follows :—■
“ A merchant ship which owing to circumstances beyond itscontrol may have been unable to leave the enemy portwithin the period contemplated in the preceding article,or which was not allowed to leave, may not be confiscated.”
“ The belligerent may merely detain it on condition of restoringit after the-war, without payment of compensation, or hemay requisition it on condition of paying compensation.”For the reasons fully discussed by the Privy Council in the prizecase which will be mentioned later, it must be noted that GreatBritain, notwithstanding the outrages committed by Germanyduring the war and the violation by Germany of the Hague Conven-tion in various ways, has loyally considered itself bound by theHague Convention which must therefore be given effect to by anyBritish Court, so far as it is applicable to a particular case. Theorder made by this Court on December 19, 1914, for the detentionof the “ Steinturm ” is quite in accordance with the provisions ofArticles 1 and 2 of the Hague Convention. That being so, it iscontended for the German corporation that the title to the ship isstill in them, and the Court must now restore it to them in specie,or order its assessed value to be paid to them. With regard tothis, however, certain provisions of the Treaty of Versailles mustbe taken into account. By Article 1 of Annexe III. of Part VIII.of the Treaty, Germany ceded to the Allied and Associated Powersall vessels of 1,600 tons gross and upwards, and by Article 8 shefurther “waived all claims of any description against the Alliedand Associated Governments or their nationals in respect of thedetention, employment, loss, or damage of any German ships,” and
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by Article 440 Germany recognized as valid and binding alldecrees and orders concerning German ships and goods made byany Prize Court of any of the Allied and Associated Powers.
The provision of the Treaty with regard to the session of merchantships is applicable to the present case, .because the “ Steinturm ” isa vessel of 5,266 tons gross. As regards the question of title, “ TheBlonde, The Hercules, The Prosper,” 91 L. J. Pro. 91 is an.authoritative interpretation of the effect of the provisions of theTreaty. The Privy Council observed “There can be no doubtthat Germany was competent on behalf of those nationals whowere German subjects within the operation of the Treaty to makecessions which would bind them and effect a transfer of their rightsof property “3 if the cession has been made personally by the ownerconcerned.*1 But their Lordships of the Privy Council, While theyheld that the Treaty operated to transfer the property in all shipsof 1,600 tons gross and upwards, did not apply the Treaty to thatcase, because the vessels with which it was concerned were each ofthem much below, 1,600 tons gross. It is true that the “ Steinturm”was owned, not by an individual German national, but by a Germancorporation, of which the Directors are German nationals, but theTreaty provides for such a case, and declares by Article 3 of AnnexeTIT, that the ships to be ceded “ include all ships and boats whichfly or may be entitled to fly the German merchant flag or areowned by any German national, company or corporation, or by acompany or corporation belonging to a country other than anAllied or Associated country and under the control or direction ofGerman nationals.” Mr. Hayley for the ” Hansa ” corporationwhich owned the ” Steinturm ” contended that there would be nochange of title unless a bill of sale or other document of title wereexecuted and delivered, and relied on Article 4 of the Annexe,which provided as follows :—
For the purpose of providing documents of title for the shipsand boats to be handed over as above mentioned, theGerman Government will (a) deliver to the ReparationCommission in respect of such vessel a bill of sale or otherdocument of title evidencing the transfer to the Commissionof the entire property in the vessel free from all encum-brances, charges, and liens of all kinds, as the commissionmay require ; (6) take all measures that may be indicatedby the Reparation Commission for ensuring the shipsthemselves shall be placed at its disposal.”
It is* however, clear that this provision imposes a further obli-gation on the German Government, and does not restrict the right ofthe Allied and Associated Governments to enforce a cession of theships. Moreover, the present application is that the “ Steinturm ”
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Db SaupatoA.C.J.andP.
The es.“Steinturm ”
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1028.may be delivered to the British Government on behalf ox the Repara-
bn Sampayo t*on Commission. Ii the Reparation Commission, when theA.C.J.and P. delivery has been made, require a document, the German Govern-Tfut ga ment may be compelled to grant one in pursuance of Article 3,“Steinturm” but that Article does not affect the power of this Court to orderdelivery. In this connection a further objection taken by Mr. Hayleymay be noticed’. It is asked, what right the Crown has to makean application on behalf of the Reparation Commission and whatjurisdiction this Courthas tomakethe order asked for. TheTreatyofVersailles is an international agreement, and each party to it must fulfilits terms so far as each party may. The “ Steinturm ” was seized byan officer of the Crown, and is now under the control of this Courtwhich is His Majesty’s Court of Admiralty in Ceylon, and thecause itself was initiated by and carried through by the BritishCrown. The Reparation Commission was constituted by thepowers concerned, and I think that the,British Crown, so far asregards the delivery of the German vessels already brought withinthe jurisdiction of British Courts, represents and can act for theReparation Commission. I think for similar reasons that thisCourt has jurisdiction to order delivery of the “ Steinturm ” tothe Crown for the purpose of handing the same over to the Repara-tion Commission. After all, if as I hold the “ Hansa ” corporationhave no longer any interest in the “ Steinturm, ” they are notconcerned with the particular form of order which this Court maymake, and I do not think they ought to be allowed to object tothe present application on mere abstract grounds.
The counter claim for the restoration of the “ Steinturm ” tothe “ Hansa ” corporation or for the payment of its value must,for the above reasons, be rejected. The claim for freight while theship was under requisition appears to be equally ill-founded. TheHansa ” corporation ai>pear3 to rely on the term “ compensa-tion ” in Article 2 of the Hague Convention. But that term hasbeen interpreted by the Privy Council in the “ Blonde ” case (supra)as referring to the value of the ship which is to be substituted forthe ship when the ship itself cannbt for any reason be restoredin specie and not to any hire or freight during requisition. More-over, as pointed out above, Germany by the Treaty waived allclaims of any description “ in respect of the detention, employment,,loss, or damage of any German ships or boats.” The claim in thiscase for freight-must therefore also be rejected.
The application of the Attorney-General on behalf of the Crownis allowed, with costs.
Application allowed.
A-. C. RICHARDS, ACTING GOVERNMENT PRINTER, COLOMBO, CEYLON-