which they could give 'discovery throwing light upon our case.' They claimed the coffee in the Prize Court here, and if the evidence by which their case might have been cogently supported was required for their other business in Sweden, it was for them to choose whether they would conduct their case or their business to the better advantage. Their Lordships fully appreciate the learned President's view that an offer of inspection of the books in Sweden 'by a notary public or otherwise' was, in the circumstances, almost illusory. As to the reference to the law of Sweden, the matter has been dealt with in other cases. Though loath to credit that Swedish law, truly understood, does restrict the right of a Swedish subject to support a case, which he is concerned to prove, by the best evidence of his own transactions, and while recognising that, if it be so, this is not a matter for their criticism or animadversion, but solely one for the judgment of the government and legislature of the Kingdom of Sweden, their Lordships must observe, as they have observed before, that it is impossible for a court of prize, an international tribunal, to allow its investigation of the truth of the matters brought before it to be limited by the restrictions of the municipal law affecting one of the parties to the proceedings before it. Their Lordships cannot hold that a captor's evidence is not to prove whatever it is capable of proving, merely because the claimant is not permitted by the laws of his country to produce the evidence appropriate to rebut it."

Sec. 94. Penalty for Non-Compliance with Order. In another case Sir Samuel Evans disallowed the claim of a Swedish subject because he refused under order of his government to make the discovery which had been ordered by the Prize Court, and the Judicial Committee affirmed Sir Samuel's judgment. Their Lordships, adverting to this case, said:

"It is quite impossible for a Prize Court administering international law to accept the dictates of any municipal law as to what discovery ought or ought not to be insisted on, either generally or in any particular case. The Prize Court can, however, protect itself; but this is not so with the Swedish subject. He is in a dilemma. Either he must act in contempt of the order of the Prize Court and so lose his case, which may be a perfectly good one. or he must prove his case to the Prize Court, and in so doing incur penalties under his own municipal law. The position is anomalous, but the anomaly is certainly not due to any defect in the practice of the Prize Court or in the law which it administers."1

Again in the case of the Antilla and other vessels 2 Sir Samuel Evans struck out a claim to goods because of the refusal of the Swedish claimants to comply with an order for discovery. In

The Baron Stjernblad, VI Lloyd 99; III Br. & Col. Pr. Cas. at p. 22. But Sir Samuel Evans refused to make an order for an inquiry to ascertain what portion of the insurance had been paid by neutral underwriters, adding, "As I have said in other cases, the Prize Court will not embark on any such inquiry." The Rijn (II Br. & Col. Pr. Cas. 524).

2 VII Lloyd 403; III Br. & Col. Pr. Cas. 237.

this case a chartered accountant was sent to Sweden on behalf of the Crown to examine the claimant's books but they refused to allow him to inspect and examine any books or documents except those relating to the goods seized. This not being a compliance with the order for the wide discovery made by the Court the claimants' conduct was regarded as contempt for which their claim was struck out. Counsel for the claimants argued that it was unjust to dismiss their claims because they had not complied with so sweeping an order as to which a different view was taken in Sweden, but Sir Samuel declared that they were not the judges and that orders made by the Court must be obeyed under penalty of dismissal of their claims.

While recourse to the "discovery of documents" is undoubtedly necessary under modern conditions to enable captors to establish hostile destination in respect to contraband and while it may be equally beneficial to the claimant who has a good case, recourse to it necessarily results in delays in bringing cases to trial and sometimes entails great expense and inconvenience both to the Crown and to neutral claimants.1 Unless therefore the discretion of the judge is wisely exercised it may lead to hardship and unnecessary expense to innocent neutral traders.2

The Prize Court Rules of 1914 (Order IX) in conferring upon the judge an unlimited power of ordering the discovery of documents reversed the old practice and introduced a new rule which had no place in British Prize Court procedure before the late war and in issuing orders for the production of accounts relating to business transactions taking place many months before the outbreak of the war the British Prize Court went to lengths which provoked much complaint among neutral claimants.3

2

As to this see an editorial in 145 Law Times (May 18, 1918), p. 44. Compare Roscoe, "Prize Court Procedure," Br. Yr. Book of Int. Law, 1921-22, p. 95; also his History of the English Prize Court, p. 72. Sir Erle Richards, adverting to the practice of the Prize Court in ordering a general discovery of all books of account and other documents relating to business transactions covering a period antecedent to the War, remarks that it was naturally regarded as oppressive by neutral merchants because it enabled a belligerent government to obtain particulars regarding the trade of such merchants which might be made use of on other occasions and he adds that "it seems probable that British merchants will take the same view of so wide an order if they should be in the same position as neutrals at any future time." "British Prize Courts and the War," Br. Yr. Bk. of Int. Law, 1920-21, p. 28. See also the remarks of Baty, "Some Neglected Fundamentals of Prize Law," 30 Yale Law Journal, p. 43, to the effect that the practice of discovery made law "stink in the nostrils of business men.' "" Compare also Colombos, op. cit., p. 317.

The writer of an editorial in the Law Times (Vol. 145, p. 43), adverting to the novelty of the new practice which he described as "fishing," suggested that the old procedure could have been employed in many cases to accomplish the same purpose as that sought by the new rule, particularly

1

Sec. 95. Costs and Security. English Practice. The introduction of the practice of discovery of documents has had the effect of increasing the cost of prize proceedings and thereby accentuated the importance of the question of security for costs. Under the Naval Prize Act 1864 (repealed by the Prize Courts Procedure Act, 1914) a claimant was required to furnish security to the amount of £60 within five days after entering his claim, but the Court had discretion to increase the amount. The old practice was not to condemn claimants in costs unless their conduct had been "grossly fraudulent," so that the exaction of costs was really in the nature of a penalty for attempt to deceive the Court and not as in ordinary judicial procedure a means of indemnifying a successful litigant against pecuniary loss in consequence of the proceedings. Naturally, it was difficult to fix in advance by rule or statute the amount sufficient to cover the costs, and the Prize Court Rules of 1914 (Order XVIII) leave the amount to the discretion of the judge, unless otherwise provided by agreement or by statute. The rules provide that any person instituting a proceeding, other than a cause for condemnation, or making a claim and being ordinarily resident out of the jurisdiction of the Court, may be ordered to give security for costs, though he may be temporarily within the jurisdiction of the Court, and the proceedings may be stayed until such security is given. During the late war it was the

in the case of contraband goods consigned to neutral countries adjacent to Germany, by considering the proof of such a consignment as creating a presumption of hostile destination and throwing upon the claimant the onus of rebutting the presumption in the manner stated by Lord Stowell in the case of the Magnus (1 C. Rob. 31). This would be equivalent to the information now obtained by discovery. This, in fact, was done in many such

cases.

1 Story, Notes on the Principles and Practice of Prize Courts, p. 7; and the Stanton (1917), II Br. & Col. Pr. Cas. at p. 374. In this latter case Lord Parker remarked that this requirement was remarkable for two reasons: first, a claimant in condemnation proceedings was not as a general rule ordered to pay costs unless he had put forward a fraudulent or unjustifiable claim, and, second, he was, at any rate, up to the preliminary hearing the expense of judicial proceedings, are often confused with "costs" in until then, resting with the captors.

On the whole subject of costs see Tiverton, op. cit., pp. 106 ff. This author points out that "costs" in the technical sense, that is, as representing the expense of judicial proceedings, are often confused with "costs" in the sense of the extraneous expenses incurred in connection with the detention of captured property. Expenses of the latter character are, in a proper case, recoverable by the owners from the captors as damages for wrongful capture and not as costs of procedure. The confusion arises because damages and costs usually go together, the claim in a case of condemnation being for "all such loss, costs, charges, damages and expenses" as have been incurred by the owner and whenever the owner is held to be entitled to restitution with damages, he is usually awarded costs as a matter of right.

practice of the Prize Court to make the value of the particular res, whether ship or cargo, the chief test for determining the amount of the security. The amount is said to have ranged. from £50 to £300, the maximum sum not being infrequent because of the long investigation of documents and books necessary in important prize cases.

Sec. 96. Who Bears the Costs? When a ship or cargo has been condemned and sold the expense is made a charge upon the proceeds which the Crown obtains therefrom. In the case of the Adonis and other vessels 2 Lord Sterndale said:

"There is no doubt that, where it is a matter of goods, if the goods are condemned, the Crown bears the expenses out of the fund which they get by condemnation; where the goods are released, the expenses are taken out of the fund which is released, subject to that deduction, to the claimants. ... Where bail has been given and the goods afterwards condemned . . . there is simply an order of condemnation, and no order is made as to the repayment of the expenses which have been paid by the claimants on getting the release of the goods. But . . . that has simply been a custom in making the order in the Registry, and that there has been no case in which the question whether it is right has come either before the judge or the registrar or where it has been questioned in any way."

In view of the special circumstances in this case his Lordship directed that the amount of the expenses be repaid by the Crown to the claimants and no order was made for costs. In the case of the Drottning Sophia and other vessels where Sir Henry Duke, discussing the questions of costs and the nature of security therefor, said:

3

"There are certain events of prize proceedings in which the liability for costs and charges and the nature of the security for that liability are already well ascertained. Apart from any exceptional circumstances goods and proceeds of goods which are the subject of proceedings in prize are, according to the ordinary practice of the Court, subject to a charge for costs and expenses of seizure and detention. If the captor obtains a decree of condemnation his interest in the goods or fund, the subject of the decree, is charged with these costs and expenses. If the claimant succeeds in the cause the decree in his favour leaves him to bear the like burden."

1 Roscoe, History of the English Prize Court, p. 73; also Br. Yr. Bk. of Int. Law, 1921-22, p. 96. Mr. Roscoe thinks that since the claimant is nearly always a foreigner a uniform amount as under the Naval Prize Act of 1864 would be fairer to claimants and would diminish in some trifling degree the cost of the proceedings. A somewhat similar view is expressed by the editor of the Law Times, Vol. 145 (June 15, 1918), p. 126. This article contains a review and evaluation of English practice as to security for costs in prize procedure.

IX Lloyd 296; II Br. & Col. Pr. Cas. 532. 'IX, ibid., 290; III, ibid., 659.

Then after referring to the above quoted passage from Lord Sterndale's opinion in the Adonis, he added:

"The substantial question now at issue is that which was left undecided in the Adonis, namely, whether a claimant who obtains release on bail of a captured ship or goods should be required, as a condition of the release, to pay unconditionally the costs and expenses already incurred. . . . To add to the loss of the confiscable subject the loss of an amount which is properly only a charge upon that subject, seems to me inconsistent with the general practice of the Court in relation to the release of captured property. It would also, in my opinion, be inconsistent with the terms of the form of prize bond which is found in Appendix A to the Prize Rules, 1914. "On the whole I come to the conclusion that a claimant who pays costs and charges of seizure and detention upon receiving delivery of goods ought to have credit for the payment as against the security which represents the full value of the goods in the event of his failure in the litigation, and that the bail bond may be expressed in terms which will evidence this right."

In the case of the Zamora1 it was suggested that the procedure prescribed by the existing Prize Court rules precluded the Court from awarding damages or costs in the existing proceedings, under which every action for condemnation is now instituted by The Procurator-General in behalf of the Crown and the captors are not, therefore, as under the old practice, necessarily parties. Consequently it was contended that the parties entitled to damages or costs must institute fresh proceedings as plaintiffs, not against the Crown, but against the actual captors. The Judicial Committee, however, rejected this suggestion and expressed the opinion that the necessity of new proceedings would "be extremely inconvenient and would entail considerable hardship on claimants." And it added: "If possible, therefore, the Prize Court rules ought to be construed so as to avoid it, and in their Lordships' opinion, the Prize Court rules can be so construed."

In the same case their Lordships considered the question as to whether the Crown or its proper officer could be made liable for damages or costs under Order V of the Prize Court rules which empowers the judge to make such order as to damages and costs, in case of failure of the captors to proceed, as he may think fit, although the order does not indicate against whom the writ is to be issued, whether against the actual captors or the Crown. The decision was in the affirmative. "Captors" in the sense of rule 3 of Order V meant the Crown.

'IV, ibid., at p. 111; II, ibid., 1.