HL Deb 01 February 1944 vol 130 cc571-8

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (VISCOUNT SIMON)

My Lords, I rise to move that this Bill, which is a Bill to control claims for prize salvage, be read a second time. Claims for salvage are of two kinds. There is "civil" or, as it is sometimes called, "maritime salvage," under which persons who rescue maritime property from peril at sea are entitled to recover in the Admiralty Court a suitable reward for their services. That is the salvage to which we are more usually accustomed. But there is a second kind of salvage, which is called "prize salvage" or sometimes "military salvage," which is recoverable in the Prize Court and is claimed when maritime property which has been taken by the enemy is retaken so that it is released from the enemy's grip. In these cases our law has, in the past, recognized the right of the recaptor to a pecuniary reward for his services to be paid by those interested in the property recovered.

Our law of prize salvage was largely derived and developed from our experience in maritime wars of the late eighteenth or early nineteenth centuries. I do not know that I can claim that the Law Reports are always the most attractive or exciting kind of reading, but in the reports of prize cases by Lord Stowell you will find picturesque accounts of a British man-of-war overhauling French privateers which were taking a captured British merchant ship into port, and rescuing singlehanded the vessel from the clutches of the enemy. That was the sort of thing that in the old days was the basis of a claim for prize salvage. I am not disclosing any secret when I say that operations now in contemplation on the side of the Allies are of a more elaborate character. For the impending assault on what is called the Fortress of Europe, immense, complicated, interwoven action will be involved in which forces of all kinds representing different nations, will all be engaged in a common endeavour, and those responsible for the planning of these operations have in mind the orderly and the rapid disposal of maritime property which the enemy has seized from British and Allied nationals—say, for example, British or Allied ships which were caught early in the war in some continental port, and which, as a result of these combined operations, we trust, will be released and made serviceable for the Allied cause. Clearly, therefore, it is essential that, as soon as possible after their release, these vessels should be brought into use for the common war effort, irrespective of the place of recapture or the nationality of the recaptors.

Moreover, to make the handing back of these vessels to the owner—the return, that is, whether directly or indirectly, of property recovered from the enemy in those circumstances—subject to the satisfaction of pecuniary claims by individual officers or men of the Armed Forces, or other persons, may well seem to be repugnant to the principles for which the United Nations are conducting this war for the liberation of Europe. For everybody is contributing to the utmost limit of his resources, whether human or material. Even it that were not so, the settlement—sometimes a very complicated settlement—of these claims would be a matter of the greatest difficulty, having regard to the large numbers and the mixed character of the forces engaged. And that difficulty is further enhanced by the fact that while our law has recognized the topic of prize salvage, the law of certain of our Allies does not recognize the right to prize salvage at all. That is the situation which has been carefully considered by His Majesty's Government as a whole, and in particular by the Admiralty, by the Ministry of War Transport, and by the lawyers, and the conclusion we have reached is that there could hardly be a justification for conferring a pecuniary reward on the individual officers and men of one particular ship, when the recapture had in reality resulted from the totality of efforts and sacrifices of many diverse elements of the Armed Forces, based or operating at a distance from the actual scene of recapture. His Majesty's Government accordingly, after much discussion and consultation with their Allies, have reached the conclusion that, in general, the recapture of merchant vessels, when found in or close to enemy-occupied ports as a result of joint operations on the large scale of the present war, should not give rise to a claim for prize salvage on behalf of any particular ship or aircraft.

I may point out that the present Bill brings the law in regard to prize salvage claimed by officers and men of His Majesty's ships into line with the law already existing when a King's ship confers on a merchant ship the benefit of civil or maritime salvage. I began by calling attention to the distinction between these two kinds of salvage. The salvage of ordinary maritime property from the dangers of the seas, such as is frequently conferred, for example, by powerful tugs which succeed in getting a merchant vessel off a reef, or something of that kind, may also arise when one of His Majesty's ships of war, going about the oceans on its lawful occasions, helps to get a merchant vessel out of some maritime trouble. Parliament has already legislated expressly about that case in the way in which we now ask Parliament to legislate about this case of prize salvage; for by virtue of Section 557 of the Merchant Shipping Act, 1894, no claim for maritime salvage can be made by the officers and men of a King's ship without the consent of the Board of Admiralty. A similar rule has been made in the case of claims by air crews.

Your Lordships will see, therefore, that, apart from other justifications for the present measure, it puts the claims for prize salvage in the same general position as claims for civil or maritime salvage. If your Lordships will look at Clause 1 (1) of this Bill you will see the governing words: No proceedings to enforce a claim for services rendered in retaking a ship, aircraft or goods … shall be instituted after the commencement of this Act without the consent of the Admiralty or the Secretary of State. That is to say, we do not ask Parliament to prohibit or cancel this practice altogether. We do not propose a complete abolition of prize salvage. On the contrary, the right to prize salvage is reserved, but it can be exercised only with the consent of the Admiralty, as is also the case now with maritime salvage, or, in certain cases, of the Secretary of State.

I should add that the statutory provisions contained in this Bill are necessitated by agreements which are being negotiated by the Foreign Office with the Allied Governments who are joining with us in the future in the assault upon the European Fortress, and in connexion with the impending operations for dealing with ships of different nationalities which are recaptured, as we confidently expect that they will be, in the course of those operations. Those agreements cannot be concluded on a reciprocal basis—which is, of course, what everybody insists upon— unless His Majesty's Government have the powers which are to be conferred by this Bill. On the other hand, if after entering into reciprocal agreements it should turn out hereafter that any party to them were to fail to observe the limitations imposed and were to encourage unreasonable claims in their own Courts— which, of course, I do not for a moment anticipate—then the form in which this Bill is drawn gives the opportunity for us to put ourselves in a corresponding position as regards ships of that country; because if reciprocal treatment were not accorded by one of our Allies, the form of the Bill would not hamper our Government in acting as seemed appropriate in the circumstances.

Your Lordships will see, therefore, that this matter, which is rather technical and, I dare say, not interesting to everybody, has very considerable importance. Amongst other matters which make it important, there is the carrying through of the arrangements which are being negotiated with our Allies. The need for asking for the powers conferred by the Bill arises as a matter of urgency, owing to the fact which I have explained, that in the course of discussions with certain Allied Governments on proposals for the disposal and use of recaptured merchant ships it has become apparent that the assent of the Allied Governments to the return of British property when it is recaptured by their Forces without claim for prize salvage cannot be secured unless His Majesty's Government in their turn are in a position to say that prize salvage claims will not be advanced as a matter of course in the Courts of this country. I trust that I have sufficiently explained the purpose and nature of this Bill. As I have just said, it is a matter of considerable urgency, which is perhaps the reason why it has been introduced in your Lordships' House. If we can pass it with reasonable promptitude in this House, it will without delay be taken to another place, with the object of getting the assent of both Houses of Parliament and securing its passage into law. I beg to move that it be read a second time.

Moved, That the Bill be now read 2a.— (The Lord Chancellor.)

LORD STRABOLGI

My Lords, this Bill, as the noble and learned Lord Chancellor rightly says, has been initiated in your Lordships' House, and I invite your Lordships to give it some little attention. The matter, we are told, is urgent, but, however urgent it is, primâ facie it affects the rights of naval officers and seamen. I do not rise to oppose the principle of the Bill, but I would ask your Lordships, as I have said, to give it some little consideration. In the first year of the last war, grave inroads were made on the ancient rights of officers and men serving in His Majesty's ships with regard to prize. The lawyers got together and the seamen suffered—not for the first time. The first inroad was the abrogation of the customary reward for the captain of one of the King's ships for carrying bullion. When one of His Majesty's ships was required to carry bullion, then, because of the extra risk and anxiety to the captain involved, 2 per cent. of the value was paid to the captain. In August, 1914, however, an Act was rushed through both Houses of Parliament with very little discussion taking away that reward for men who at the best of times do not draw very heavily on the national resources.

The next reform—looking at it by and large, I suppose it was a good thing—was the pooling of prize money. The old custom was that the officers and men of frigates and cruisers which captured enemy goods and ships benefited from the sale of the capture in the Prize Court. It was argued that it would be impossible in the last war for a cruiser to operate at sea without the backing of the Grand Fleet, and that therefore the officers in the Grand Fleet should share in the proceeds. That seemed sound enough, and so the whole of the prize money was pooled and we all got our share. I had the pleasure of spending the proceeds of a substantial cheque at the end of the war. We had to wait for it but we got it. Nevertheless, that was an invasion of the rights of the men who had to do the hard work at sea of the patrolling cruiser squadrons. They suffered individually, though I suppose that, by and large, that was justified. I understand, but I am not quite certain about it, that the same procedure is being followed in this war and that the ordinary proceeds of prize are being pooled for the benefit of the whole Fleet.

Now we come to this Bill. This Bill takes away the right, except by the consent of the Board of Admiralty or the Secretary of State, of any of the agents acting for the crews of ships who have recaptured enemy prizes—that is prizes made by the enemy. Without their consent they cannot institute "proceedings to enforce a claim." And however justified, however much your Lordships may be swayed by the arguments, that is nevertheless taking away a right and privilege of the personnel of the Royal Navy. Therefore for that reason, while I dare say there is a great deal to be said for the proposal, it does require some thought and examination. The noble and learned Viscount talks of recaptured ships winch were seized by the enemy in their ports at the beginning of the war as the result of military operations. I have always understood that prize is a prerogative of the Navy. I did not know that the Army had anything to do with sharing prize; it is a naval prerogative.

If, for example, the port of Bremen, or Hamburg were captured by an expeditionary force and British ships were recaptured in those ports, I should not imagine that the military forces had any claim in prize at all. Nor for that matter has the Royal Navy or any naval ships taking part in the action. But this does not really apply to the recapture of British merchant ships in enemy ports at all. What you are taking away by this Bill is the right to prize (unless permission to sue is given) for ships recaptured on the high seas, because if your Lordships will look at Clause 1 (1) you will see there is nothing about ships being taken in the ports at all. The words are: No proceedings to enforce a claim for services rendered in retaking a ship, aircraft or goods taken by an enemy shall be instituted alter the commencement of this Act without the consent of the Admiralty or the Secretary of State. One of His Majesty's cruisers might recapture in the Pacific a British ship which had been taken by the Japanese, and this would deprive the officers and crew, and indeed the Royal Navy under the pooling arranger lent, of their prerogative, except with the consent of the Admiralty. I think therefore that this is rather a serious matter, and however urgent the Bill is, I hope your Lordships will give it consideration. May I draw attention to one drafting matter? I am a traditionalist, and I do not like to see a departure from the old form of words. I believe I am right in saying that to use the words "the Admiralty" ("without the consent of the Admiralty") is quite a new departure. The proper title is the Lords Commissioners of the Admiralty. "Admiralty" is a word of convenience, and I suggest that the old words should be re-inserted in this Bill.

THE LORD CHANCELLOR

My Lords, perhaps I may be allowed to answer in a word or two. I take the last point first. If at his leisure the noble. Lord will consult the Interpretation Act he will find it is there laid down that "the Admiralty" in an Act of Parliament means, and is the proper term to mean, the Lords of the Admiralty. There is nothing, I can assure him, which is casual or irregular in the drafting of this Bill.

I do not think I agree with him that prize salvage at Common Law is only to be claimed by officers and men of the Royal Navy. To the best of my belief it is within the general idea of prize salvage that it might be claimed by the Army, or might be claimed by the Air Force. I think the noble Lord has perhaps confused the conception of prize with the conception of prize salvage. I will not enlarge the discussion by going into the very important questions connected with prize on which the noble Lord made some observations. I referred to the recapture of merchant vessels, whether British or Allied, in or around the coast of Europe, with the very object of indicating in a general way that the scheme of the Bill was in particular to prevent claims for prize salvage in such cases. It is quite true that the Bill proceeds more generally to say that no proceedings shall be taken without the consent of the Admiralty, but I thought it would be of some interest to the House and to the noble Lord, with his naval associations, to know that what was particularly in mind was the rescuing of vessels in ports like, say, Antwerp—I do not mention a particular port with any idea of indicating where the proceedings might occur. I thought it would be interesting to know that that was the class of case that was more particularly in mind when the Government decided that there ought not, in general, to be any enforcing of a claim to prize salvage. For the rest, while we all understand and admire the noble Lord's naval traditions, it is as well to realize that this Bill is authorized and approved by the Admiralty—or should I say the Lords Commissioners of the Admiralty?—

LORD STRABOLGI

So was the last Bill.

THE LORD CHANCELLOR

—and it is just as well not to be plus royaliste que le roi.

On Question, Bill read 2a, and committed to a Committee of the Whole House.