SEARCH IN PORT

THE "BERNISSE" AND THE "ELVE"

([1920], P. 1)

Prize court-Damages against the Crown-Diversion of neutral vessels-Absence of reasonable cause-Neutral vessels sailing from allied port-Order in council of February 16, 1917-PracticeStay of execution—Security for costs-Payment out.

Two neutral vessels, bound from a French colonial port to Rotterdam with cargoes of ground nuts, were stopped by a British cruiser just outside the area declared by Germany to be a prohibited area in which any neutral vessel would be liable to be sunk by German submarines. The vessels had all the requisite documents of clearance from the French port, including an "acquit à caution "-a document permitting the export of the cargo-but had not got the "green clearances" which were given to vessels which had called at a British port.

By clause 1 of an order in council of February 16, 1917, adopting further reprisals against the unlawful acts of Germany, "a vessel which is encountered at sea on her way to or from a port in any neutral country affording means of access to the enemy territory without calling at a port in British or allied territory shall, until the contrary is established, be deemed to be carrying goods with an enemy destination, or of enemy origin, and shall be brought in for examination, and, if necessary, for adjudication before the prize court." The vessels were sent in for examination to Kirkwall, and when in the submarine area one of them was sunk by a German submarine and the other was damaged. In an action against the procurator general for damages:

Held, (a) that the order in council had no application to a vessel which sailed from a British or allied port; (b) that the absence of the "green clearance" therefore afforded no reasonable ground for sending the vessels into Kirkwall; (c) that as no other reasonable ground was suggested, the Crown was in the position of a wrongdoer and could not excuse itself from returning the vessels to their owners by the plea that it was unable to do so by reason of the wrongful or criminal act of the German submarines; and (d) that accordingly there must be a decree of restitution with costs. Held, further, that although the Crown obtained a stay of execution pending appeal, the plaintiffs were entitled to have the sums paid into court as security for costs paid out to them. 33474-251- -9

121

Argument for plaintiffs.

Actions tried together for damages against the Crown. The plaintiffs were P. A. Van Es & Co., the owners, and the masters and crews of the steamships Bernisse and Elve.

The defendants were "H. M. procurator general or other proper officer of the Crown in its office of Admiralty," and Commander William G. Howard, R. N., commanding officer of H. M. S. Patia, and Lieut. Wilfrid E. Rogers, R. N. R.

The plaintiffs claimed costs, expenses, losses, and damages occasioned by reason of the seizure of the respective vessels and their cargoes by H. M. S. Patio whilst, "with the license and authority of the French Government" they were sailing from a French port (Rufisque) to Rotterdam, and by their "unwarranted diversion from a safe channel of navigation to Kirkwall through an area which to the knowledge of the said captors was declared by Germany to form part of their blockade area to be entered into by neutral vessels at their own risk," and where the Bernisse was torpedoed and had to be beached and the Elve was torpedoed and sunk.

By their answer the defendants pleaded that the statement of claim disclosed no cause of action. They alleged that the vessels were encountered on their way to Rotterdam, "a port affording means of access to enemy territory," and that the defendant Howard thereupon, through the defendant Rogers, ordered the vessels to proceed to Kirkwall for examination. The loss sustained by the plaintiffs was due to the action of the German submarines and not otherwise.

The circumstances under which the vessels were seized are summarized in the headnote, and are fully stated in the judgment.

May 14, 15. Sir Erle Richards, K. C., and Bisschop for the plaintiffs. The vessels were bound from a French colonial port with documents which amounted to a license from the French Government to carry their cargoes to Rotterdam; the documents should have satisfied the naval authorities and the vessels should have been allowed to proceed. They were outside the German submarine area when visited, and, even assuming there was a right of visit and search, the authorities had no right to send the vessels to Kirkwall for examination, and thus expose them to the risk of the German submarines.

THE BERNISSE AND THE ELVE

They were small vessels and there was a smooth sea, and they ought to have been searched at sea. On the general right of search see "Diplomatic correspondence between the United States and belligerent governments relating to neutral rights and commerce," published in the American Journal of International Law, volume ix, pages 55 et seq., and volume x, pages 73 et seq. and 121, the result of which is that H. M. Government admitted that if visit and search at sea are possible and can be made sufficiently thoroughly to secure belligerent rights, it would be a hardship on neutral vessels to compel them to go into port. See also Oppenheim's International Law, volume ii, page 539.

There must be cause for suspicion before a neutral vessel can be sent into port, and if captors improperly and without reasonable cause, although through an honest mistake, seize a vessel which is not in fact open to any ground of suspicion, the captors are liable in damages and costs: The Ostsee. It is contended by the Crown that these vessels were encountered on their way to Rotterdam, "a port affording means of access to enemy territory." That is a reference to the retaliatory order in council of February 16, 1917, but that order can not apply to these vessels as they left an allied port and therefore were under no obligation to call at a British port in the course of their voyage. The seizures were wrongful, and therefore the Crown is liable to the plaintiffs for the loss of the Elve and the damage to the Bernisse.

123

Sir Gordon Hewart, A. G., Sir Ernest Pollock, S. G., Argument for and Bruce Thomas, for the defendants. The "acquit à caution" was merely a customhouse document, and the plaintiffs' evidence merely establishes that if stopped by a French cruiser the vessels "probably" would have been allowed to proceed. It was impossible, having regard to the German submarine peril, to examine any vessel, however small, at sea, and the naval authorities were bound to send all vessels into port for search. In fact, these vessels were "bound to a country which afforded access to enemy territory," and on the wording of the order in council it is at any rate an arguable question whether the order did not apply, although the vessels were bound from an allied port. But it is unnecessary to argue the question-the meaning and scope of the order

1 (1855) 9 Moo. P. C. 150.

were fully argued in The Leonora -for even if the order be held not to apply, damages would not be imposed upon the Crown as a consequence of the mistaken construction of the order: The Sigurd.3 In The Ostsee1 there was no possible right to detain the vessel as no blockade existed until some three weeks after the capture. That case, therefore, has no application to the present circumstances. Unless the possession is tortious and unjustifiable the captors are not responsible: The Betsey;" see also The Maria 5 and The John. Even assuming the seizure and ordering into port were unjustified, they were not tortious acts, and the captors are not responsible for the consequence of the illegal acts of the Germans in committing acts of piracy contrary to all the principles of civilized warfare.

[The PRESIDENT. If you take possession of a neutral vessel without any reasonable cause you are in no better position than that of a wrongful bailee of goods, and it is no answer to the owner of the goods to say that somebody else by a wrongful act has destroyed them.]

The Crown was rightly in possession. There was clearly a right of visit and search, and the sending into Kirkwall was merely ancillary to and a prolongation of that right. See The Zamora. It was in no sense a capture or seizure as prize. An officer should not be deprived of the benefit of his bona fides if in the course of exercising the right of visit and search he erroneously takes the view that further investigation is necessary. Further, in order to impose responsibility for the loss caused by the illegal acts of the Germans, it must be established that in sending the vessels into Kirkwall they were thereby exposed to greater risk. There is no evidence of that; the risk in searching them at sea would have been as great or greater, and they were equally exposed to submarine attack had they continued on their voyage to Rotterdam.

Sir Erle Richards, K. C., replied.

July 25. The PRESIDENT (Lord Sterndale). In this case a claim was made on behalf of the owners of the steamships Bernisse and Elve for damages against the Crown arising from damage to the Bernisse and the loss of the Elve, and the question which arises lies in a narrow com

DOCUMENTATION

pass but is not easy to decide. It is whether in the circumstances the Crown, acting by the admiral in command of the cruiser patrol at the place where the vessels were stopped, had reasonable cause for detaining them and sending them into Kirkwall.

The facts, so far as it is necessary to state them, are as follows: The two vessels were small steamers of about 950 tons gross, owned by P. A. Van Es & Co., and at the time were under charter to a firm called the N. V. O. Cie Fabriken Calve to carry a cargo of ground nuts from Rufisque, a port in the French colony of Senegal, to Rotterdam. The cargo was consigned to the N. O. T. and was shipped at Rufisque by a company called the Nouvelle Société Commerciale Africaine. This company had obtained permission to export the nuts from the governor general of French West Africa, and the requisite documents of clearance, which will be more particularly described later, were obtained for the shipments. The two vessels made their voyages under the charter in company, and the facts as stated apply to both of them.

This was the second voyage made by them to the port of Rufisque for a cargo of ground nuts. On the former they went by the southern route, i. e., through the English Channel, and were visited, but not searched, on the outward voyage. They loaded a similar cargo and left Rufisque on February 14. They obtained the following documents: The déclaration de simple exportation, the manifeste de sorties, and what is called the acquit à caution. This is a document permitting the export of cargo on security being given by the shippers, guaranteed by a substantial firm of merchants that the cargo shall be delivered at the port of Rotterdam within three months. On the homeward voyage the vessels were visited in the Downs and the ships' papers examined. After an interval of several days, which I was informed was increased by some misunderstanding as to the return of the papers, they were allowed to proceed and arrived in Rotterdam and discharged their cargo. As I understand the evidence the cargo was kept under the supervision of the customs until it was certain that it was being used only for the purpose of being converted into oil in Holland, and was not being exported. On April 4, 1917, the vessels left Rotterdam in ballast on the second voyage, and on this occasion they took the northward route by the north of Scotland.

125

Statement of

facts.