IN THE MATTER OF PART CARGO EX S S MONTE CONTES CONSERVAS CERQUEIRA LIMITADA Vs. H M ATTORNEY GENERAL AND PROCTOR FOR GIBRALTAR

JUDGEMENT

(1.) This is an appeal from an order of the Supreme Court of Gibraltar, Admiralty Jurisdiction-In Prize, condemning a part cargo of 3428 cases of tinned fish valued at approximately ?10,000, shipped on board the Spanish steamship "Monte Contes" at Vigo for Barcelona. The shipment was made on 24 November 1941. On 16 December 1941, the goods were seized in Gibraltar, and on the same date a writ was issued and served on the vessel, claiming their condemnation on the ground (inter alia) of enemy destination. On 25th, February 1941, a claim was entered on behalf of the owners of the goods, now represented by the present appellants and the underwriters, on the ground (inter alia) that the goods were destined for Barcelona and were not going to an enemy destination. The Court rejected the claim and condemned the goods as lawful prize on the ground that they were conditional contraband destined for an enemy country, namely, Italy.

(2.) The case is marked by a paucity of information. If it was for the Crown as captor to establish affirmatively that the goods were conditional contraband, it might well be that the proof was insufficient. But that is not the true position in prize law. Prize law has its own peculiar rules, as the Board recently explained in 1942 AC 667.1These peculiar rules have been developed out of the peculiar character of the issues to be determined and of the circumstances in which they arise and come before the Court. Captors are entitled to seize property, ship or goods if there is reasonable ground for suspicion that the property is subject to be condemned. The property must be brought by captors for adjudication into the Prize Court by means of the issue and service of a writ. Persons claiming to be interested in the property may then enter appearance and file a claim. To succeed in their claim they must prove their title to the property and establish that the facts are such that there is no cause to justify condemnation. Thus the captors must show that the case is one involving reasonable suspicion. If they do so and if no claim is made, or if the claim fails, the Court will in due course condemn the property as prize. But on the side of the claimants positive proof to the satisfaction of the Court is exacted. They have to prove that they are entitled to the release of the goods as being their property, and also that the facts are such that there is nothing which would render the property good and lawful prize. In other words, they must show by affirmative evidence that the reasonable suspicions were unfounded. That these are the two issues in such cases was stated by this Board in 1918 AC 4612at p. 464, in the judgment delivered by Lord Parker.

(3.) It will then be convenient to examine what the Crown as captor here alleges to constitute a case of reasonable suspicion, and on the other hand what facts the claimants allege or seek to establish in order to have the seizure set aside and the goods released. The contrast between the two sides is sometimes explained as depending on the onus of proof. In a sense that may be a true description. But more exactly the difference depends on what is the case of either side. The captor has to maintain his seizure by showing the case of reasonable suspicion in order to justify what he did. The claimant has to establish by evidence of fact his affirmative case, which he can do in a case like this by showing the precise character of the adventure and showing that the ostensible destination is the ultimate destination. In the present case the ground of condemnation relied upon is that the goods are conditional contraband, that is, are food stuffs proceeding to an enemy destination for the use of the Italian armed forces or the Italian Government. It has not been contested that such a destination would render goods liable to be condemned. What is disputed is that there was in fact such a destination. It is not that claimants have to prove a negative, but they have to prove affirmatively what was the actual destination of the goods and that it was such that they were not subject to the penalty of being condemned. In other words, if the Court is of opinion, as the Chief Justice at Gibraltar was, that there was reasonable cause for seizing the goods, the appellants have to prove that Barcelona was the ultimate destination of the adventure so far as they controlled or could control it. Their Lordships do not go so far as the Chief Justice when he said that the claimant must prove that the articles will not find their way in one manner or another into enemy territory after they have been imported into the neutral country. Their Lordships are not aware of any authority which would justify this statement in its full breadth. Though seizure may be justified on the ground of suspicious circumstances for which the claimant could not be held responsible, it is different with condemnation, which in general would not be ordered because of an ulterior destination in respect of which the shippers were neither responsible nor privy : 1918 AC 173.3But the decision of the Chief Justice is not affected by this point.