Transfer Vessels. territory is unaffected by the fact that he has a house of trade in a neutral State.1 (2) On the other hand, according to French practice prior to the World War, the nationality of the owner of the goods was exclusively the deciding factor, and it did not matter where he resided. Hence only such goods on enemy merchantmen bore enemy character as belonged to subjects of the enemy, whether they were residing on enemy or neutral territory; and all such goods on enemy merchantmen as belonged to subjects of neutral States did not bear enemy character, whether those subjects resided on neutral or enemy country.2 During the Turco-Italian War, the Italian courts adopted the French practice. But the exigencies of the World War 3 compelled France herself to adopt a different policy. 4 § 91. The question of the transfer of enemy vessels of Enemy to subjects of neutral States, either shortly before or during war, forms part of the larger question of enemy character, for the point to be decided is whether such transfer 5 divests these vessels of their enemy character. It is obvious that, if it does, owners of enemy merchantmen can evade the danger of having their property seized and confiscated by selling their vessels to subjects of neutral States. Before the Naval Conference of London of 1908-1909, the maritime Powers had not agreed upon common rules concerning this subject. According to French 6 practice no transfer of 1 The Clan Grant, (1915) 1 B. and C. P. C. 272. 2 See the French cases of Le Hardy contre La Voltigeante (1802) and La Paix (1803) 1 Pistoye et Duverdy 321 and 486; Le Joan (1870); Le Nicolaus (1871); Le Thalia (1871); Le Laura-Louise (1871); Barboux 101, 108, 116, 119. See Coquet in R.G., xxi. (1914), pp. 253-258. 4 This subject is fully discussed by Garner, i. §§ 121-138. 5 See Holland, Prize Law, § 19; Hall, § 171; Twiss, ii. §§ 162-163; Phillimore, iii. § 486; Boeck, Nos. 178-180; Bonfils, Nos. 1344-13491; Dupuis, Nos. 117-129, and Guerre, Nos. 62-66. See Dupuis, No. 97; Garner, i. §§ 126-127. enemy vessels to neutrals after the outbreak of war could be recognised, and a vessel thus transferred retained enemy character; but any legitimate transfer anterior to the outbreak of war did give neutral character to a vessel. According to British and American practice,1 on the other hand, enemy vessels could be transferred to a neutral flag, before or after the outbreak of war, and lose thereby their enemy character, provided that the transfer took place bona fide,2 was not effected either in a blockaded port 3 or while the vessel was in transitu,1 and the vendor did not retain an interest in the vessel, or any right to recover or repurchase the vessel after the war.5 Clear and decisive rules concerning the transfer of enemy vessels, which distinguished between transfer to a neutral flag before and after the outbreak of hostilities, were laid down in the unratified Declaration of London." (1) According to Article 55 the transfer of an enemy vessel to a neutral flag, if effected before the outbreak of hostilities, was to be valid, unless the captor was able to prove that it was made in order to avoid capture. However, if the bill of sale was not on board, and the transfer was effected less than sixty days before the outbreak of hostilities, it was to be presumed to be void, unless the vessel could prove that it was not effected in order to avoid capture. To provide commerce with a guarantee that a transfer should not easily be treated as void on the ground that it was effected to evade capture, it was stipulated that, if the transfer was effected more than thirty days before the outbreak of hostilities, there was to be an absolute 1 Garner, i. §§ 127-128. 2 The Vigilantia, (1798) 1 C. Rob. 1; The Baltica, (1857) 11 Moore P.C. 141; The Benito Estenger, (1899) 176 U. S. 568. * The General Hamilton, (1805) 6 C. Rob. 61. 4 The moment a vessel transferred in transitu reaches a port where the new owner takes possession of her, the voyage of the vessel is considered to have terminated. The Vrow Margaretha, (1799) 1 C. Rob. 336; The Jan Frederick, (1804) 5 C. Rob. 128. The Sechs Geschwistern, (1801) 4 C. Rob. 100; The Jemmy, (1801) 4 C. Rob. 31. Garner, i. §§ 129-130. presumption of its validity, provided that it was unconditional, complete, and in conformity with the laws of the countries concerned, and that neither the control of, nor the profits arising from, the employment of the vessel remained in the same hands as before the transfer. But even in this case a vessel was to be suspect if the transfer took place less than sixty days before the outbreak of hostilities, and her bill of sale was not on board. Hence she might be seized and brought into a port for investigation by a prize court, and could not claim damages for the capture, even if the court released her. (2) According to Article 56, the transfer of an enemy vessel to a neutral flag after the outbreak of hostilities was to be void unless the owner could prove that the transfer was not made in order to avoid capture. Moreover, there was to be an irrebuttable presumption that the transfer was void, if it had been made in a blockaded port, or while the vessel was in transitu, or if a right to repurchase or recover the vessel was reserved to the vendor, or the requirements of the Municipal Law governing the right to fly the flag under which the vessel was sailing had not been fulfilled. The Italian courts acted upon the articles of the unratified declaration during the Turco-Italian War and condemned the two sailing vessels Vasilios and Aghios Gorghios, originally Turkish, but after the outbreak of war sold to a Greek subject, and registered under the Greek flag.1 Again, at the outbreak of the World War, Great Britain, France, and Russia determined to give effect to these articles,2 and the important case of The Dacia was decided in accordance with them by the French Prize Court. The Dacia was purchased after the out 1 See Garner, i. § 129 n. 2 For a British case where an attempt had been made to transfer a German vessel to the British flag while in transitu just before the outbreak of war between Great Britain and Germany, see The Tommi, (1914) 1 B. and C. P. C. 16; [1914] P. 251. See also the Canadian case of The Bellas, (1914) 1 B. and C. P. C. 95, and the French case of The Colonia, in R. G., xxii. (1915), Jurisprudence, pp. 45-47, and Garner, i, § 123. break of war from a German company by an American citizen, while she was lying in an American port and admitted to American registry, the United States being then neutral. She was captured by a French cruiser on the way to Rotterdam and condemned. The court held that the claimant had failed to establish that the transfer was not made to avoid capture.1 The rules and practices so far considered in this section relate only to the transfer of private enemy vessels; they do not apply to the transfer by a belligerent State to a neutral of one of his men-of-war with a view to escape capture. The question whether a war-vessel could thus divest itself of enemy character arose during the World War, when two German cruisers, Goeben and Breslau, unable to escape from the Mediterranean, ran up the Dardanelles to Constantinople, and were there reported to have been sold to Turkey, then neutral. Vessels so transferred by a belligerent to a neutral subject had come before the British 2 and American Prize Courts in older wars and had been condemned, on the ground that a belligerent war-vessel cannot put off its enemy character during a war. of Goods on Enemy § 92. The transfer of enemy goods on enemy vessels Transfer likewise forms part of the larger subject of enemy character, for the question here also is whether such a transfer Vessels. divests these goods of their enemy character, and there 1 See R.G., xxii. (1915), Jurisprudence, p. 83, and A.J., ix. (1915), p. 1015. Compare The Edna, (1919) 3 B. and C. P. C. 407. See also Garner, i. §§ 124-125, 132-133, 136, 138, who discusses the points raised, and mentions the cases of The Brindilla, Platuria, and Petrolite, the German case of The Pass of Balmaha, and abortive negotiations between Chili and Great Britain for the recognition of the validity of the transfer to the Chilian flag of German vessels which the Chilian Government desired to purchase. Later in the war, when the shortage of shipping became acute, 2 The Minerva, (1807) 6 C. Rob. See The Georgia, (1868) 7 Wall. See Hall, § 172; Twiss, ii. §§ was likewise no unanimous practice among the maritime States when the Naval Conference met in London in 1908-1909. British and American practice has always refused to recognise a sale after the outbreak of war of goods in transitu if the vessel was captured before the neutral buyer had actually taken possession of the goods. On the other hand, French practice used to recognise such a sale in transitu, provided it could be proved to have been bona fide.2 The unratified Declaration of London provided by Article 60 that enemy goods on board an enemy vessel retained their enemy character until they reached their destination, notwithstanding any transfer effected after the outbreak of hostilities while the goods were in transitu. Such goods might therefore be confiscated, although they had been sold in transitu to subjects of neutral States.3 At the outbreak of the World War, Great Britain and some of the other belligerents gave effect to this article. It did not, however, cover a case in which goods sold by an enemy to a neutral and consigned to him were captured in transit, and before they had actually been delivered to him. According to British practice, the material question in such a case is when did the property in the goods pass. If they had been sold to the neutral 1 The Jan Frederick, (1804) 5 C. Rob. 128; The Ann Green, (1812) 1 Gallison 274. Where, however, goods are sold by an enemy to a neutral in transitu bona fide before the outbreak of war, and without expectation of war, though war intervenes, the goods are not liable to confiscation. The Southfield, (1915) 1 B. and C. P. C. 332. 2 See Boeck, No. 162; Dupuis, No. 142. 3 A special rule was provided for the case of an enemy consignee of goods on board an enemy vessel becoming bankrupt while the goods were in transitu. In a number of countries-Great Britain is one of them, see § 44 of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71)—an unpaid vendor has, in the event of the bankruptcy of the buyer, a recognised legal right to recover such goods as have already become the property of the buyer, but have not yet reached him (right of stoppage in transitu). For this reason, Article 60 stipulated that if, prior to the capture, the neutral consignor exercised, on the bankruptcy of the enemy consignee, his right of stoppage in transitu, the goods regained their neutral character, and might not be confiscated. |