IN THE MATTER OF S S PRINS KNUD AND HER CARGO, FRANCE FENWICK TYNE AND WEAR COMPANY LTD Vs. H M PROCURATOR GENERAL

JUDGEMENT

(1.) The question which their Lordships have to decide is whether the appellants have a claim enforceable in prize in respect of the salvage services which they rendered to the "Prins Knud" before her arrest in Prize. In the circumstances to be explained the question has been argued without technicalities, both parties desiring a decision of the fundamental question. The "Prins Knud," a Danish vessel, registered at the Port of Copenhagen, ran aground in February 1940, in the neighborhood of Holy Island. Denmark was then neutral. The appellants, who are a British company carrying on their business at Newcastle-on-Tyne, are the owners of three tugs which rendered very meritorious salvage services, which ended successfully, with the result that on 27 March 1940, the vessel, which had been saved from the shoals, rocks and winter storms of that dangerous coast, was moored in safety in the Tyne, where she was placed in dry dock in the hands of ship repairers. The appellants as salvors never had exclusive possession; the vessel was never abandoned and never was a derelict; she had on board at all material times her Master, Chief Engineer and donkeyman.

(2.) The appellants entered into negotiations with the Danish owners for the settlement of their claim but before these could be concluded Denmark, on 9 and 10 April 1940, was invaded and completely occupied by our enemy Germany. On n April, 1940 (the vessel being then in the hands of the ship repairers), the appellants issued a writ in rem in the Admiralty Division of the High Court of Justice in its Instance jurisdiction against the vessel and her Danish owners, claiming remuneration for the salvage services which they had rendered. On the same day the writ was served on board and the vessel was arrested. Later in the day, while the vessel was in the custody of the Admiralty Marshal, His Majesty's Collector of customs and excise, acting on behalf of the Crown, took possession of the vessel as enemy property. On 12 April 1940, a writ in prize was issued by the Procurator General addressed to the owners and parties interested in the ship "Prins Knud" and the goods laden therein for the condemnation of the said ship and goods as prize. The Crown decided to requisition the ship and on 19 April 1940, the Procurator General, acting under O. 29, R. 5, Prize Court Rules, 1989, which applies to a requisition by the Crown under the order, gave an undertaking in writing to pay into Court on behalf of the Crown such amount as might be fixed by the Court in respect of the value of the vessel, at such time or times as the Court should declare by order that the same or any part thereof was required for the purpose of payment out of Court. On 20 April 1940, the Registrar of the Admiralty Court ordered the "Prins Knud" to be forthwith released and delivered to the Crown without appraisement. The vessel was thereupon released and requisitioned by the Government. Under R. 7 of O. 29 proceedings in respect of a ship requisitioned are to continue notwithstanding the requisition. On 26 April 1940, the appellants entered an appearance in the Prize proceedings and also entered a caveat against release. This caveat is still in force. They also registered their claim in accordance with a notice issued by the Ministry of Shipping. On 8 July 1940, judgment was given in the Admiralty Court for ?6500 and costs in the action for salvage initiated as before stated by the appellants, but it was directed that execution of the judgment should stand over until after the proceedings in Prize. In those proceedings, on 29 August 1940, the Danish owners of the "Prins Knud" entered an appearance.

(3.) On 4 November 1940, the appellants filed their claim in the Prize proceedings to be remunerated for their salvage services, and asked for an order that the Crown should pay into Court, in accordance with the undertaking given as stated above, a sum sufficient to satisfy their claim. On 19 November 1940, the appellants applied by summons that the Crown by its proper officer should proceed to adjudication or for such other order as would enable their claim to be adjudicated upon. On 11 February 1941, the President, having adjourned the summons into Court, refused to make any order. He gave a judgment, stating his reasons for so doing. He was influenced, he said, against making an order to compel the Crown to bring the case to adjudication by a declaration made in Court by the Attorney General that considerations of high policy had induced the Government to decide that as at present advised they did not intend to seek a decree of condemnation of the ship or other Danish ships similarly situated. It was not suggested that the requisition of the vessel was not properly made in accordance with the principles laid down by the Privy Council in (1916) 2 AC 77.1 He was of opinion that payment to the appellants would not be made in any event before the end of the war and that no advantage to them would be gained by having their rights determined, though he was prepared presently to decide their rights if they so desired. They however insisted on their application and appealed to His Majesty in Council. When the appeal came on for hearing before their Lordships, an arrangement was arrived at between the Crown and the appellants which has rendered it unnecessary for their Lordships to express in this judgment any opinion on the course adopted by the President. He was exercising, as he indicated, a special discretion in the peculiar circumstances of the case. It is clear that he was not meaning to throw any doubt on the long established rule that the captor "is strictly enjoined both by his instructions and by the Prize Act to proceed immediately to adjudication." So the rule was stated by Sir William Scott and Sir Johu Nicholl in 1794, as quoted at page 7 in Pratt's edition, published in 1854, of Storey J.'s authoritative summary of the principles of prize law which formed Note 2 to Wheaton's Admiralty Reports. In the last war the same rule was again restated by this Board in (1916) 2 AC 771at p. 108 : If the captors do not promptly bring in the property seized for adjudication, the Court will at the instance of any party aggrieved compel them to do so.