The opinion of the court was delivered by: BOWEN
On December 7, 1941, the Steamship 'Wilhelmina' with a Japanese owned cargo of 4500 tons of coal sailed from Muroran for Nagoya, Japan. The next day, upon learning through the vessel's radio of the outbreak of the present war in the Pacific, the master of the vessel deviated her voyage, and with the approval and assistance of the crew put the vessel and cargo into Dutch Harbor, Alaska, on December 26, 1941. On February 20, 1942, the vessel with a portion of the cargo arrived at Seattle.
For their assistance the crew were promised certain remunerations, but not having received the same they on April 7, 1942, filed this libel in this Court as a Court of Prize, seeking to condemn the cargo of coal as a prize of war captured by the crew and asking certain relief against the master as party respondent. The ship is not sued, and the chief officer, apprentice, and radio operator are not included among libelants or respondents.
Standing interrogatories in preparatorio have been answered and much testimony by deposition has been taken. The master and owner of the vessel and the Dutch Government have filed certain objections to the jurisdiction of the court, and the following questions are presented:
1. Does this an American Prize Court have jurisdiction?
2. Was capture of prize of war intended?
3. Was a lawful capture of prize of war made?
If certain events necessary to this Court's jurisdiction had happened as provided in Section 7, 34 U.S.C.A. 1165, such as a proclamation by the President making the provisions of the Act and a hearing in an American Prize Court available to the nationals of cobelligerent nations, that section might have validated libelants' proceedings for adjudication of prize in this an American Prize Court, but I am not advised of the happening of any such necessary event. No other provisions of the Act gives libelants, who are citizens of our cobelligerent China, the right to submit their claim of prize to an American Prize Court. On that question of jurisdiction this court is, therefore, left to a consideration of the law as it was when this action was commenced on April 7, 1942.
The question of 'Prize or no prize must be determined by courts of admiralty, belonging to the power whose subjects make the capture.' 1 Magens, 496. 'The proper and regular court for these condemnations is the court of that state to whom the captors belong.' 1 Magens, 487. (Both of these Magens quotations appear in notes in 9 Fed.Cas.at page 61.) See also Findlay v. The William, 9 Fed.Cas.page 57, No. 4, 790, where at page 61 it was said 'that affairs of prizes are only cognizable in the courts of the power making the capture.' The Supreme Court in U.S. v. Peters, 3 U.S. 121, 126, 3 Dall. 121, at 126, 1 L. Ed. 535, held that 'By the law of nations, the right of judging is vested in the courts of the captor.' And Ruling Case Law states the rule thus: 'In general this jurisdiction of the national courts of the captor, to determine the validity of captures made in war under the authority of his government, is exclusive of the juridical authority of every other country.' 15 R.C.L.,Sec. 109, page 210.
Under those authorities, it would have been proper for libelants, who are Chinese citizens, to have submitted to a Chinese Court their allegedly captured prize and their cause for adjudication of prize. They do not , under those authorities or any others of which this court is advised, have the right to so proceed in this American Prize Court because of its lack of jurisdiction of prize sought to be condemned at the suit of nationals of a cobelligerent nation.
By all those connected with this case it is considered a novel one, and the prize commissioners suggest the importance of a decision as to whether under the disclosed facts the cargo constitutes a prize or no prize. If by reason of any conceivable theory or applicable authority this court should entertain jurisdiction, it would be necessary to determine that question of prize or no prize. That turns upon the further inquiry whether a capture was intended and whether there was a lawful capture of prize.
2. WAS CAPTURE INTENDED? That question involves a consideration of the acts and intentions of the master, officers and crew of the ship 'Wihelmina' connected with their bringing the vessel and her cargo into an American port. The evidence discloses that, without consulting any other officers or any members of the crew, Capt. Vollers, the master of the vessel, immediately after learning of the outbreak of war between Holland and Japan on December 8, 1941, decided to and did deviate the Japanese voyage the vessel was then on, and undertook of his own volition to bring the vessel and cargo into a friendly and safe American port, for the purpose of escaping capture by the Japanese of the master and crew and of securing greater safety for the vessel from the standpoint of the Dutch interests with the master was undoubtedly serving. In execution of this plan, the master changed the vessel's course to the eastward away from the course of her Japanese voyage.
But one member of the crew, William R. Davies, apprentice, in telling of the Captain's promise of wages or bonus money and the ...