Captain Henry Nelson

Closing Statement by Henry Nelson's Counsel

Fatal Failure of Proof

The Prosecution has shown no jurisdiction over the accused under NCB 333:

NCB 333 ".....The officers, members of crews, and passengers on board merchant ships of the United States, although not in the naval service of the United Stated, are, under the laws of the United States, the decisions of the courts, and by the very necessities of the case, subject to military control while in the actual theatre of war."

The prosecution has entered no evidence that Espiritu Santo, New Hebrides was on October 26, 1942, an "actual theatre of war". Such fact is not one of judicial notice. See NCB 309. Nor, even if it were, has the prosecution requested that such notice be taken as required by NCB 309.

The judge advocate has stated that matters of geographical location are within the judicial notice of the court. But this matter of actual theatre of war is not a geographical factor. You cannot take judicial notice of the activities conducted in that area by human beings. But they have made it an actual theatre of war, the judge advocate will say, there are mines there and the captain of the Coolidge admits there was the possibility of enemy submarines there. The gentlemen of the commission will admit that there are mines in San Francisco, and there is a possibility of enemy submarines and there are mines in all the harbors of Australia, and there are submarines there. Is that going to be the indicia for actual theatre of war. Further what is an actual theatre of war? To my mind that phrase implies an area where there is combat. There was no combat in Espiritu Santo on that date.

1. To the inefficiency of the Port Director's Office at Noumea, in that, Captain Nelson was not given directions for safely approaching Segond Channel and was not informed that these waters were mined and in the haphazard way that the enclosures were attached to the basic routing instructions and delivered to the President Coolidge,
2. and to the inefficiency of an inexperienced commanding officer of a navy patrol and pilot boat, and
3. to the inefficiency of Navy signalmen.

It is believed and it has been demonstrated that Captain Nelson should be acquitted of the charge and specification. Thank you Gentlemen.

Chester C. Hosmer
Lieutenant (JG) USNR

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