File No. 763.72112/1261
The Consul General at London (Skinner) to the Secretary of State
No. 523]
London,
June 9, 1915.
[Received June 22.]
Sir: Referring to my No. 396, dated April
13, 1915, and to the Department’s cabled instructions of May 5 and
7, directing me to obtain the opinion of counsel on the above
subject,1 I have the honor to
report that Messrs. Charles Russell and Company
have submitted to me the opinion of Mr. Leslie Scott, K.
C., on the points raised in the Department’s
inquiries. The opinion as submitted is enclosed herewith.
Upon the receipt of the opinion of Mr. Leslie
Scott, I drew his attention to the first sentence
therein, according to which the indemnity is intended to indemnify
the Crown and all other official persons mentioned against all
claims and proceedings within its scope instituted against any of
those persons whoever may be the claimant, and I remarked that this
view seemed to be negatived by Mr. Scott’s
answer to the inquiry “Does this indemnity constitute a bar to
prosecution in British courts of claims for damages?” Upon this
particular point I have received a supplementary opinion, a copy of
which is also enclosed as No. 2.
The Department will not fail to note from this correspondence that
while the procurator general holds that the indemnity covers only
possible claims of third parties, it is the opinion of Mr.
Leslie Scott that taken by itself the
indemnity debars the party giving the indemnity from claiming
against the procurator general or any other official persons in
respect of the goods released.
I have [etc.]
[Enclosure 1]
Opinion of Leslie
Scott, K. C., re indemnity
guarantee
COUNSEL is sent HEREWITH:
FORM OF INDEMNITY GUARANTEE
As Counsel knows all Claimants of goods detained by the
British Authorities the validity of whose claims is
recognized by the Procurator General are required to sign an
Indemnity in the form sent herewith and unless they do so
they are unable to obtain the possession of their goods. The
Procurator General has informed the American Consul General
that the only effect of the Indemnity is to protect the
Procurator General against any claims that may be made in
respect of the goods released. Many persons who have signed
the Indemnities are dissatisfied with the terms on which the
goods have been released and will probably wish to make
claims against third parties for damages and other relief
and the American Consul General therefore is frequently
called upon to say whether the signing of the Indemnity will
in any way prejudice the making of such claims
hereafter.
Counsel’s attention is called to the third clause of the
Preamble of the Order in Council of March 11th, and also to
Order 13 subdivision 4 of the Prize Court Rules.
The American Consul desires to be advised on the following
points with regard to the legal effect of entering into the
Prize Court Indemnity Guarantee:
- 1.
- Does this Indemnity constitute a bar to
prosecution in British Courts of claims for
damages.
- 2.
- Does it constitute such a bar to prosecution
before any International Tribunal which may be
called upon to determine matters of this
character.
- 3.
- Generally as to the position of the
Guarantor.
opinion
1. The Procurator General’s form of Indemnity is intended to
indemnify not only the Procurator General but also the Crown
and all the other official persons mentioned against all
claims and proceedings within its scope instituted against any of those persons whoever
may be the claimant. If any claim should be made by any
third person against any one of the official persons
mentioned the guarantor would be responsible to the
Procurator General by way of indemnity for any damages
awarded and for the costs of the proceedings. On the other
hand the indemnity contains no undertaking by the party
giving it that he will not make claims against third
parties, and he is perfectly free to do so. The indemnity
will only affect him if the claim he so makes should lead
such third party in his turn to claim against the Procurator
General. Whether such a contingency is likely to arise in
practice I do not know—I therefore answer the questions:
- (1)
- No.
- (2)
- No.
- (3)
- The guarantor’s rights against any third parties
other than the Crown and the other persons mentioned
in the Indemnity are not directly affected by
signing this indemnity.
Whether and if so how far they are affected indirectly it is
difficult to say without concrete illustrations before
me.
Leslie Scott
20th May, 1915.
Goldsmith Building, Temple, E.
C.
