740.00112 European War 1939/10128
The British Embassy to the Department of State
Aide-Mémoire
The following are the preliminary views of His Majesty’s Government in the United Kingdom as a summary of the considerations set forth in the Department’s memorandum No. 740.00112 European War 1939/9754 of January 20th, 1944, commenting on the proposals of His Majesty’s Government for the disposal of vessels and their cargoes which formerly belonged to the Allied Governments or their nationals and are captured or found by Allied forces in the course of operations. Such ships will be referred to hereinafter as “recaptured ships”.
- 2.
- His Majesty’s Government welcome the Department’s general agreement with the United Kingdom memorandum on ships, a copy of which was attached to Embassy’s Aide-Mémoire of November 15th, 1943, the main object of which is to secure the orderly and prompt disposal of recaptured ships with a view to their return to the common pool. The financial provisions of the memorandum were designed to secure their general acceptance by all concerned as fair, even if such a solution should not coincide in every detail with too nice a regard for what may be the strict legal position. Moreover, any solution other than restoration to the Government of the original flag would not have been acceptable to the European Allies.
- 3.
- The justification for providing for the satisfaction of the claims of certain underwriters is that it seems to be inequitable that in the case of a ship where the total loss had been paid, the country receiving the ship back should either by its Government or its nationals, have received both the ship and the insurance monies. Further, where underwriters have paid for a total loss they can reasonably claim to have their loss repaid if it has been adeemed by the restoration of the ship.
- 4.
- The Department’s view that the Governments which have effected recapture might expect a reward for recovery appears to His Majesty’s Government to be inconsistent with the general principles of the United Nations war effort that pecuniary claims of this nature should not be made between Governments; and under modern conditions of joint operations, it is in general unreal to attribute the recapture of ships to any particular ship, aircraft or force. Moreover, His Majesty’s Government are convinced that the European Allies would have the strongest objections to being asked for payment by His Majesty’s Government or the United States Government.
- 5.
- In any event, prize salvage is a right of individual officers and men of the recapturing ships and not of the belligerent governments [Page 147] concerned, and in this connection it has become clear from preliminary discussions with some of the Allies that agreement will not be possible so long as the existing rights of individual officers and men of the Armed Forces (or any other persons) to claim a reward for their services in capturing Allied ships can be enforced. The Allied Governments would not agree to prize salvage being included in claims against which they would be called on under Article 2(c)266 to indemnify His Majesty’s Government. Nor would they be prepared to hand back to His Majesty’s Government ex-British ships without raising difficulties and causing delay so long as prize salvage claims can be brought against their ships in British courts.
- 6.
- It has accordingly been decided that His Majesty’s Government should take powers to enable them to control the bringing of prize salvage claims and necessary legislation was introduced on January 25th. The effect of the measure will be that the prior consent of His Majesty’s Government will be required before a claim for prize salvage can be made in any British court. (This would not apply in the Dominions who are, however, being invited to consider taking similar powers). Consent will not be given for any claim against an Allied ship recaptured in the course of joint operations, provided that His Majesty’s Government are satisfied that no similar claims against British ships or property can or will be brought in the courts of the Allied Government concerned.
- 7.
- Copies of the draft bill and of an explanatory memorandum are on their way to Washington and will be furnished to the Department as soon as possible.67 Meanwhile, His Majesty’s Government would be glad to know whether the United States Government are prepared to take powers similar to those being taken by His Majesty’s Government if such a step is necessary to ensure that claims for prize salvage will not be brought against British ships in American courts, since the bringing of such claims would create an exceedingly awkward situation.
- 8.
- His Majesty’s Government hope that the United States Government will also agree to take parallel action to that already taken by His Majesty’s Government in regard to recaptured ships. The memorandum referred to in paragraph 2 above was addressed in an abbreviated form on October 22nd, 1943 to the Norwegian, Netherlands, Belgian, Yugoslav and Greek Governments and the French Committee of National Liberation. No reply has been received from the last three, but the Norwegian, Netherlands and Belgian Governments have accepted the proposals in principle. The prospects for general [Page 148] agreement may therefore be considered good. As United States forces will be taking part in forthcoming operations, and particularly as the Supreme Allied Commander-in-Chief68 is American, it seems to His Majesty’s Government most important that the United States Government should take steps to reach parallel agreement with the Allied Governments concerned. Moreover, for the same reason, it is necessary that His Majesty’s Government should know where they stand in regard to ex-British ships recaptured by United States forces. It has always been the intention of His Majesty’s Government that any ex-United States ships recaptured by British forces should be handed to the United States Government in accordance with the terms of the memorandum. His Majesty’s Government would, however, require a reciprocal undertaking from the United States Government in regard to ex-British ships recaptured by their forces. His Majesty’s Government would be glad to learn the views of the United States Government on the form which such an agreement might take.
- 9.
- As regards cargoes, His Majesty’s Government have carefully considered the possibility of seizing cargoes in prize but are convinced, particularly in view of their experiences in handling refugee cargoes in the United Kingdom during the summer of 1940, that their European Allies would object most strongly to the general adoption of such a procedure for cargoes which may partly consist of cargoes owned in enemy occupied territory and will therefore be only technically “enemy”. His Majesty’s Government are further satisfied that the Allied Governments would not agree to the seizure of these technically enemy cargoes without compensation, particularly where the Allied Government concerned itself has requisitioning powers under its own law. They appreciate that requisitioning as opposed to Prize court procedure can involve liability to pay compensation in respect of some real enemy cargoes, but in such cases any compensation payable would be paid to the Custodian of Enemy Property and thus be dealt with in the ultimate settlement with the enemy. Lastly, His Majesty’s Government are convinced that the impossibility of discriminating rapidly during the period of active operations between technical enemy cargoes and real enemy ownership leaves requisition as the only practicable procedure.
Washington
, February 7, 1944.