CHAP. Transfer of belligerent vessels to neutral flag In 1854 Great Britain and France, finding it necessary to adopt a common policy against Russia, agreed upon the more liberal practice of exempting from capture enemy goods in neutral bottoms and neutral goods in enemy bottoms. At the close of the war the Declaration of Paris of 1856 confirmed the practice as a rule of contractual law, providing that "the neutral flag covers enemy's goods, with the exception of contraband of war," and that "neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag." 1 A few minor points are worthy of mention. First, the neutral owner of goods shipped upon an enemy vessel must suffer the loss incident to the capture of the vessel and its diversion to a port other than that of its original destination. Secondly, British and American decisions conflicted as to the status of neutral goods shipped in a belligerent armed vessel, the former holding (obiter) in the case of the Fanny 2 that such condition was evidence of intent to resist visit and search, and rendered the goods liable to forfeiture, the latter holding in the case of the Nereide that the neutral character of goods was not lost by reason either of the armament or of the resistance of the vessel, provided the neutral himself did not directly participate in the resistance. 4 Has a neutral citizen the right to purchase merchant vessels belonging to citizens of a belligerent when such transfer of ownership would have the effect of depriving the other belligerent of the right to capture such vessels upon the high seas? * The question is highly controversial. Down to 1908 Great Britain and the United States followed the rule that such transfers were valid when bona fide; that is, when no right of repurchase was reserved by the vendor and no right to share in profits. In the case of the Noydt Gedacht, a small Dutch fishing-vessel which had been transferred to a neutral was condemned as Dutch property because of a condition in the bill of sale to reconvey at the end of the war. In the case of the Benito Estenger, a Spanish vessel sold by its owners to a British firm after the outbreak of war and captured by a For the text of the declaration, see Higgins, The Hague Peace Conferences, 1. 27 Dodson, 443 (1814). Scott, Cases, 1012. 9 9 Cranch, 388 (1815). Scott, Cases, 1014. Stated in more strictly legal terms, has a neutral state the right to protect the title of its citizens to property so purchased? 52 C. Rob., 137, note. Scott, Cases, 1022. See also the Ariel, 11 M. P. C., 119. Cobbett, Cases, II, 144. 176 U. S., 568 (1900). Scott, Cases, 1029; Evans, 583. XXXI United States cruiser, was condemned as lawful prize on the ground CHAP. that the transfer was "merely colorable" and the original owner still retained a beneficial interest in the vessel. On the other hand, France and Russia refused to recognize even bona fide transfers when made after the outbreak of war. It may be added that British and American courts did not, however, recognize the validity of transfers of public armed vessels.1 At the London Naval Conference of 1908-09 an attempt was Provisions made to reconcile conflicting views.2 The result was that the Declaration Declaration of London made a distinction between the transfer of an enemy vessel to a neutral flag before and after the outbreak of hostilities. In the former case the transfer was valid "unless it is proved that such transfer was made in order to evade the consequences which the enemy character of the vessel would involve." Conditions were laid down under which the presumption should be for or against the validity of the sale. In the case of a transfer made flagrante bello, the presumption was against the validity of the sale, and became an absolute presumption when the transfer had been made during a voyage, or in a blockaded port, or where there was a right of redemption or recovery. of the of London during the World War During the World War questions of transfer gave rise to a Practice number of controversies. Germany sold to Turkey, while neutral, two warships, the Goeben and the Breslau, interned at the time in Turkish ports. A number of German merchant vessels were transferred to American registry under conditions suggesting a retention of ownership, in whole or in part, by German nationals. The Brindilla, the Platuria, and the Petrolite were released by British prize-courts on the ground that, while originally flying the German flag, they had in fact been owned by American citizens." In the case of the Dacia, a German vessel lying in an American port was purchased by an American citizen and admitted to American registry. Being captured in February, 1915, by a French cruiser she was condemned as lawful prize in accordance See the case of the Georgia, 7 Wallace, 32 (1868), where a Confederate armed vessel, which had been sold to a British citizen and then dismantled and fitted up for purposes of commerce, was condemned as prize. Scott, Cases, 1022, n. 55. A summary of the opposing points of view may be found in Higgins, op. • Art. 56. cit., 600 ff. Art. 55. See Phillipson, International Law and the Great War, 318 ff. 'French Council of State, 1916. Scott, Cases, 1033. The decision of the lower prize-court may be found in Am. Journal, IX (1915), 1015. CHAP. with Article 56 of the Declaration of London, which the French prize-court chose to recognize as binding.1 'The British Government, on being approached in advance, had refused to state what action it would take. In 1915 a bill was introduced in the United States Congress providing for the purchase of German merchant vessels by corporations financed in part by the Government. It drew, however, sharp criticism as a violation of neutrality and failed of passage. Upon the general subject, see Garner, op. cit., I, Chap. VII; E. M. Borchard, "Transfer of Flag and the Declaration of London," Columbia Law Review, XXIII (1923), 338-357. CHAPTER XXXII CONFLICT OF NEUTRAL RIGHTS OF TRADE WITH THE BELLIGERENT RIGHT The conflict between the right of a neutral state to protect the commerce of its citizens and the right of a belligerent state to blockade the ports of its enemy has marked the history of international relations for the past three centuries. Grotius found it necessary to discuss the subject on the basis of the natural law, in the absence of rules of customary law. Shortly after, in 1630, the Dutch instituted a formal blockade of certain ports of Flanders and imposed upon offenders the penalty of confiscation of vessel and cargo. By the close of the eighteenth century two fairly distinct doctrines of blockade had developed, the one, supported mainly by Great Britain, favoring the side of the belligerent, the other, supported mainly by Holland, favoring the claims of neutrals. The Armed Neutralities of 1780 and 1800 directed their protests against blockades legally established although not effectively maintained. The United States, suffering from the British and French blockades during the Napoleonic Wars, championed the cause of neutrals; but when itself a belligerent in 1861-65 the American Government extended the scope of existing rules to make its own blockade of the Confederate States more effective. Aside from the vague principle laid down by the Declaration of Paris in 1856, that a blockade to be binding must be effective, the practice of states was still in a state of uncertainty in 1914. The Declaration of London, drawn up in 1909, presented, it is true, a comprehensive and fairly precise code of law upon the subject; but the failure of some of the leading powers to ratify it left the whole subject, so far as actual practice was concerned, in the state it was before the Declaration. a. Oppos ing doctrines of blockade blockade A blockade need not be limited, as in earlier times, to the in- Scope of a vestment of fortified ports. It may extend to all ports of the enemy state, including, if necessary, the entire coast-line, as in 1 De Jure Belli et Pacis (Eng. trans.), Bk. III, Chap. I, § V. The Armed Neutralities of 1780 and 1800, 299, 531. CHAP. XXXII Effectiveness of blockade the case of the blockade of the Confederate States in 1861-65. Whether an international river may be blockaded, when such action would interdict neutral commerce, remains unsettled. In 1854 the mouth of the Danube was blockaded by the enemies of Russia in spite of the protest of neutral states. On the other hand, the United States refrained from blockading the Rio Grande in 1861-65,1 and the French made exception of the Ems River in their blockade of Germany in 1870. The Declaration of London provided that "a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy," and that "the blockading forces must not bar access to neutral ports or coasts.” 2 The chief controversial issue concerns the effectiveness of the blockade maintained by the belligerent. The Declaration of London stated a rule of customary law in providing that "in accordance with the Declaration of Paris of 1856, a blockade, in order to be binding, must be effective,—that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coastline," and further, that "the question whether a blockade is effective is a question of fact." 3 The meaning attached to these somewhat tautological provisions is not that a blockade ceases to be a blockade because individual vessels may succeed in breaking it successfully, but that a blockade, to be legal, must present an actual danger to vessels attempting to evade it. In the leading case of the Betsy the British Court of Admiralty held that the mere proclamation that the port of Guadaloupe had been put in a state of "complete investment and blockade" did not constitute a legal blockade justifying condemnation of an American vessel which had entered the port. In the case of the Franciska the British Privy Council released a captured vessel on the ground that the blockade of Riga was invalid by reason of the fact that belligerent subjects had been authorized to trade with the blockaded port. In the case of the Olinde Rodrigues" the Supreme Court of the See the case of the Peterhoff, below, p. 545. 1 4 Art. 1, 18. The translation of the declaration cited in the text is that printed for the use of the United States Senate. See Charles, Treaties, 268 ff. It differs verbally from the official British text printed in Higgins, Hague Peace Conferences, 540 ff. 6 Art. 2, 3. 1 C. Rob., 93 (1798). Scott, Cases, 932; Evans, 644. 10 Moore P. C., 37 (1855). Scott, Cases, 944; Evans, 648. "No blockade," said the court, "can be legitimate which admits to either belligerent a freedom of commerce denied to the subjects of states not engaged in the war. "" 174 U. S., 510 (1899). Evans, Cases, 665. The vessel in this case was released for lack of evidence of intent to enter the blockaded port. |