CHAPTER XXVIII

TRANSFER OF FLAG. ENEMY CHARACTER.

PRIZE-COURTS

200. Transfer to a Neutral Flag.-The freedom of a neutral vessel from the capture to which an enemy merchant vessel is subject has led in the past to an evasion of capture by the transfer of an enemy vessel to the flag of a neutral state. Consequently, one of the duties of a belligerent cruiser is to ascertain whether such a transfer has been made and, if so, whether it has been legitimate or only for the purpose of evading a capture. Fortunately, this question was taken up by the London naval conference with a resultant agreement as to the treatment of the subject which seems to meet the occasions so far as possible when we consider the diversity of interests involved. The matter is found in the various articles in Chapter V of the declaration, the first of which is numbered 55 and reads as follows:

"Art. 55. The transfer of an enemy vessel to a neutral flag effected before the outbreak of hostilities is valid, unless it is proved that such transfer was made in order to evade the consequences to which an enemy vessel, as such, is exposed. There is, however, a presumption, if the bill of sale is not on board a vessel which has lost her belligerent nationality less than sixty days before the outbreak of hostilities, that the transfer is void. This presumption may be rebutted.

"Where the transfer was effected more than thirty days before the outbreak of hostilities, there is an absolute presumption that it is valid if it is unconditional, complete, and in conformity with the laws of the countries concerned, and if its

effect is such that neither the control of nor the profits earned by, the vessel remain in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the outbreak of hostilities, and if the bill of sale is not on board, the capture of the vessel gives no right to damages.

"Art. 56. The transfer of an enemy vessel to a neutral flag effected after the outbreak of hostilities is void unless it is proved that such transfer was not made in order to evade the consequences to which an enemy vessel, as such, is exposed. "Provided that there is an absolute presumption that a transfer is void

"(1) If the transfer has been made during a voyage or in a blockaded port.

“(2) If a right to repurchase or recover the vessel is reserved to the vender.

'(3) If the requirements of the municipal law governing the right to fly the flag under which the vessel is sailing have not been fulfilled."

The American delegation to the London conference in their report to the secretary of state made a statement concerning this subject as follows:

"It has been decided that commerce in ships in time of war is, in general, not legitimate unless it is bona fide commerce and not undertaken to evade the consequences to which the ship would be liable if it retained the enemy flag. The burden of proof of validity of the transfer is placed on the vender. In all such cases commerce would be regarded as illegitimate when the transfer is made (1) in transitu or in a blockaded port, (2) with the right of repurchase or return, or (3) contrary to the laws of the flag which it bears.

"It would also be possible, and to some extent has been the practice, for ship owners anticipating war to make transfers just before the outbreak of war. Such transfers, when made with the view to evading the consequences of the war and not

as commercial transactions, are not regarded as legitimate, but the burden of proof rests upon the captor, except when the papers in regard to the transfer, which has been made within sixty days before the outbreak of war, are not on board. In this exceptional case the burden of proof of the validity of the transfer is placed on the vessel, as there is not sufficient evidence at hand in the ship's papers to enable the captor to release the ship.

"It would, however, be an undue interference with commerce if all sales or sales made a long time before the war were liable to be regarded as invalid. It is, therefore, decided that sales made more than thirty days before the war, even though made with the idea of evading the consequences of a war which might subsequently break out, would be valid unless there is some irregularity in the transfer itself, or unless it is not an actual transfer, evidence of which might be in the fact that the profits and control remain in the same hands as before the sale.

"There are thus established three periods under which transfer of flag is considered, (1) during war, when burden of proof of the validity of the transfer rests upon the vender; (2) a period of thirty days before the war, during which it is necessary for the captor to prove that the transfer is made to evade the consequences of war; and (3) the period prior to thirty days, when, regardless of whether or not the transfer is made to escape the consequences of war, it is necessary for the captor to establish that the transfer itself is irregular, or not in fact a transfer. It is also necessary that, in order to have advantages of these provisions, a vessel transferred within sixty days before the war shall have the papers relating to the sale on board.

"These provisions establish much more definite rules, where formerly there had been great diversity of practice among states, or even diversity in the same state at different periods. Commerce in ships is recognized as legitimate under such restrictions as seem necessary in order to safeguard belligerent rights."

201. Enemy Character.-The agreement of the London conference upon this subject, though an advance in dealing with the subject, is fragmentary and confined to four articles only. The first article under the head of enemy character is Article 57, which, with its qualifications, may be said to be a fundamental rule about which usage and code agree and which permits but little discussion. It reads:

"Subject to the provisions respecting transfer to another flag, the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly.

"The case where a neutral vessel is engaged in a trade which is closed in time of peace remains outside the scope of this rule and is in no wise affected by it."

Article 58 reads:

"The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of the owner."

"Unlike ships, goods," says the accompanying report, “have no individuality of their own; their neutral or enemy character is made to depend upon the personal status of their owner. . . . But what is to determine the neutral or enemy character of the owner?"

The solution of this question by the conference was not attained, as opinions were equally divided between the determination of the matter by domicile of the owner and by that of his nationality.

This question of the determination of the enemy character of an individual will be again mentioned in the final chapter of this volume treating of open questions. It is an unsettled subject which to a large extent arranges itself upon the old lines of the Anglo-American as opposed to the continental system. Holland, Spain, and Japan agreed with the Anglo-American practice, while Austria-Hungary, Italy, Germany, and Russia sided with France that nationality was the determining factor. Article 59 reads:

"In the absence of proof of the neutral character of goods found on board an enemy vessel, they are presumed to be enemy goods."

Article 60 is that:

"Enemy goods on board an enemy vessel retain their enemy character until they reach their destination, notwithstanding any transfer effected after the outbreak of hostilities while the goods are being forwarded.

"If, however, prior to the capture, a former neutral owner exercises, on the bankruptcy of an existing enemy owner, a recognized legal right to recover the goods, they regain their neutral character."

These articles are traditional rules which are considered at the present time as approved usages.

202. The Sending in of Prizes for Their Adjudication.When the belligerent captor determines that he has sufficient ground to retain a vessel for the violation of belligerent rights, the captured vessel is sent to a port where a prize-court sits for the purpose of adjudication. Articles 46, 47, and 48 of the Naval War Code found in the "Laws and Usages of War at Sea" give the procedure founded both on the laws and usages of the United States. They read as follows:

"Prizes should be sent in for adjudication, unless otherwise directed, to the nearest suitable port, within the territory of the United States, in which a prize-court may take action.

"The prize should be delivered to the court as nearly as possible in the condition in which she was at the time of seizure, and to this end her papers should be carefully sealed at the time of seizure, and kept in the custody of the prize-master.

"All witnesses whose testimony is necessary to the adjudication of the prize should be detained and sent in with her, and, if circumstances permit, it is preferable that the officer making the search should act as prize-master."

As to the status of the prize before condemnation the opinion given in the discussion of the subject in the international