The Sado Maru
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1946 |
| Docket Number | Case No. 181 |
| Date | 06 December 1946 |
| Court | Probate, Divorce and Admiralty Division |
Prize - Cargo - Outbreak of war with Germany during voyage - Contraband of war - Seized from Japanese ship while neutral - Proceeds of sale - Subsequent outbreak of war with Japan - Freight payable to enemy shipowner on delivery of cargo at destinations - Condemnation of freight to the Crown as prize - Claim on behalf of controller enemy assets for compensation in lieu of freight.
In 1941, while Japan was still a neutral power, the Japanese steamship Sado Maru was diverted and searched by the Royal Navy and certain portions of her cargo were seized as contraband of war. The ship herself was released and proceeded on her voyage by reason of her then innocent national character. Some ten consignments of the cargo seized destined for Hamburg and a small consignment destined for Rotterdam had been shipped before the outbreak of war with Germany in 1939. The freight on these was payable on delivery at the ports of destination. The cargo was sold by the Marshal and the proceeds remained in his hands. Japan became a belligerent enemy in Decemer, 1941. On November 19, 1942, the proceeds of the sale were condemned as lawful prize to the Crown, and, subsequently, a portion of the proceeds from the Rotterdam consignment was released by the Procurator General to persons entitled, the sum of 67l. 8s. 4d. representing the freight which would have been payable to the Japanese agents in Rotterdam being retained by the Marshal. The Crown sought a decree of condemnation in respect of that sum together with the amount of freight which would have been similarly payable to the Japanese agents in respect of the Hamburg consignments, an aggregate sum of 2,267l. 3s. 10d. The controller of the assets of the London branch of the Japanese company, an official appointed by the Board of Trade, claimed this sum as compensation in lieu of freight which normally would have been receivable by the Japanese on the ground that the cargo was shipped before the war with Germany in a ship which was neutral at the time of the shipment, and of the seizure; and that the proceeds had not been condemned as prize when Japan became an enemy.
Held, with regard both to the released and the condemned proceeds, that although the original seizure of the cargo was not hostile, there was an implied condition that, in the event of the shipowner becoming an enemy, the right to freight or compensation in lieu thereof would be condemnable as prize. The aggregate sum was, therefore, condemnable to the Crown and the claimant was not entitled to any sum in respect of compensation.
CLAIM arising out of the application by the Procurator-General on behalf of the Crown for a decree of condemnation.
The claimant, James Charteris Burleigh, controller of the London branch of the Nippon Yusen Kabusiki Kaisya, an official appointed by the Board of Trade, claimed the sum of 2,267l. 3s. 10d., as compensation in lieu of freight which would have been earned by the Japanese steamship Sado Maru if the ship delivered certain consignments of cargo at Hamburg and a certain consignment at Rotterdam. The ship was, in fact, stopped during the war by the Royal Navy and the cargo in question seized and eventually condemned as prize.
The facts are fully set out in the judgment.
A. J. Hodgson for the claimant. I ask for an order for the payment of certain sums due to the claimant as compensation in lieu of freight and charges which would have been payable to the Japanese company if they had remained neutral. Mr. Nesbitt has submitted on behalf of the Procurator-General certain contentions and I will wait until he has developed them before giving my answers.
J. V. Nesbitt for the Crown. I submit that the authorities establish that where a ship, or goods, or freight, belonging to a neutral power has been seized and detained, and that neutral afterwards becomes at war, then the goods, freight, etc., as a matter of course, becomes condemnable and cannot therefore be recovered by anyone. It is true to say that if Japan had remained neutral compensation in lieu of freight would have been payable out of the proceeds of the cargo in question here. Assuming that your Lordship is against me on that contention and that the Crown is not entitled to this money, my second contention is that these sums are not an asset of the London branch of the Japanese shipowners and, therefore, cannot be recovered by the claimant.
[Counsel referred to the treatise on Prize Droits by H. C. Rothery, Registrar of the High Court of Admiralty, 1853–1878.] Sub-section 11 at p. 69 is headed “Capture at sea before embargo and before orders to detain,” and reads: “Thus, suppose this country be at war with some other state, and one of our cruisers to have captured a vessel under the neutral flag on the ground either of her being enemies' property or of her having enemies' property on board. Proceedings are commenced in the Court of Admiralty, and if the neutral owner succeeds in establishing his title to the property, it is at once restored ta him. Supposing however, that, whilst the property was still under adjudication, or even after it had been restored but before it had quitted this country an embargo had issued against the State to which the property...
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Notes
...to mob slayings.’ Daily Gleaner , October 6, 1947, p.1. and p.13. 70. ‘Manley points to P.N.P’s solid record’. Daily Gleaner , October 22, 1947, p.17. 71. Interview, Richard Hart, April 17, 1996. 72. A case was heard against three men, Kenneth Miller, Cyrus Johnson and Donald Phillips. All ......
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