go to the length of using the guns of his command in the forts for this purpose.

"On March 20, at another conference between the same persons, a similar statement was made to the captain of the Odenwald, and it was arranged to place an armed party on board the vessel, unless the captain, the vessel's agents, and the German consul would give assurances that no attempt would be made to leave without proper papers. Promises were given not to leave during the night of March 20-21. Nevertheless, it was discovered in the early morning hours of the 21st that officers from the German steamer President had boarded the Odenwald and that the machinery of the Odenwald was being put in motion. The port authorities thereupon again notified the chief officer of the Odenwald not to depart without clearance papers, warning him that the vessel would be closely watched and would be stopped by force if necessary.

"On March 21, at about 3 P.M., the Odenwald raised anchor and started her engines. The customs officer on board the vessel at the time was told by the captain that if he desired to go ashore he could take the sail boat of the steamer President, which was at the gangway. The Odenwald had moved ahead about five lengths when the customs officers notified the captain that the vessel could not leave port without clearance papers. Notwithstanding this notice the vessel continued in motion, and the officer was under the necessity of leaving the ship while she was under weigh.

"As she passed San Augustin Bastion, five hundred feet from Morro Castle, Capt. Wood, United States Army, who was there stationed with a machine gun, hailed the vessel several times and ordered her to stop, in circumstances which made it impossible for the officers of the vessel not to have heard the order. The Odenwald nevertheless continued on her course, whereupon about seventy-five shots were fired from the machine gun mounted on the bastion. These shots were aimed and fell a considerable distance in front and short of the Odenwald. In order not to endanger craft which appeared ahead of the Odenwald as she proceeded, fifteen shots were fired from the machine gun, which fell off the stern of the vessel. Although these were small solid shots, they were used as a warning, because it is not possible to use blank cartridges in a machine gun. The machine gun was not aimed at the Oden

wald, nor did any of the shots strike the vessel. Any marks on the Odenwald's hull, which is old and scarred through many months of sea service, were made by other causes than by machine-gun bullets striking the vessel, according to the proofs laid before this Government.

"The Odenwald did not heed this warning or slacken her speed. Thereupon a 4.7-inch gun on the Morro Castle was aimed and fired under the personal direction of Col. Burnham. The shot struck at least three hundred yards in front of the Odenwald and short of her projected course. The vessel then stopped and was taken back to her anchorage under the direction of a pilot. No machine-gun shots could have been fired from Morro Castle, as no machine guns are mounted at that fort.

"It will be observed that six distinct warnings were given to the captain of the Odenwald that force would be used in case he attempted to leave the harbor without the clearance papers required by law, namely, at the conferences on March 19 and March 20, twice by the customs officers on board the vessel on March 21, by the orders of Capt. Wood from the bastion, and by the shots from his machine gun. None of these warnings was heeded by the captain, who persisted in his determination to leave port in violation of the laws of the United States, until the warning shot from Morro Castle induced him to obey the regulations of the port.

"Your Excellency will perceive from the foregoing statement of facts that the United States authorities at San Juan in the performance of their duties avoided any act endangering the safety of the vessel and the lives of the persons on board and exercised no greater force than was necessary to prevent the illegal departure of the Odenwald from the port of San Juan."

(American Journal of International Law, Supplement, July, 1915, pp. 337-42.)

CHAPTER VIII

THE RESTRICTIONS PLACED UPON THE COMMERCIAL TRANSACTIONS OF NEUTRAL INDIVIDUALS

§ 28. ENEMY CHARACTER

THE POSTILION

High Court of Admiralty, January 8, 1779

Sir James Marriot rendered the decision in this case of which the following report is given:

A Lubeck ship was restored to the Lubeckers and the cargo to M. Lienau, the owner, who, though a Frenchman, was domiciled at Hamburg; and it appearing by evidence, and by a certificate of the magistrates on board the ship, that the cargo was his sole property, though consigned to his brothers in France, the cargo was also restored, and the privateer condemned in costs and damages. The ground of the decision was that a native of Hamburg, resident in France, would have his property condemned by the law of nations as an adopted Frenchman, pro hac vice; and so the King's declaration of reprisals1 expresses it, that the ships and goods of persons inhabiting the territories of the French King shall be subject to reprisals; and therefore the same equity operates the other way, that a Frenchman resident at Hamburg should be considered as a Hamburger, and have the advantages of protection if he is the sole proprietor.

(Hay and Marriot: Admiralty Reports, p. 245; Roscoe: Prize Cases, vol. I, p. 20.)

1 War had been declared against France previously to the declaration of reprisals above referred to. See Roscoe, Prize Cases, vol. 1, p. vii.

THE MARIANNA

High Court of Admiralty, 1805

THIS was a question respecting the title of property in some goods, and also on the freight of a ship, sold at Buenos Ayres by an American to a Spanish merchant, for which the purchase money had not been paid, but was to be satisfied out of the proceeds of a quantity of tallow consigned to England on board this vessel for sale.

Sir William Scott (Lord Stowell): "This ship appears to have been originally an American vessel, sold to a Spanish merchant at Buenos Ayres, and seized on a voyage to this country, documented as belonging to a Spanish merchant, and sailing under the flag and pass of Spain. A claim is given on behalf of the former American proprietor, in virtue of a lien which he is said to have retained on the property, for the payment of the purchase money; but such an interest cannot, I conceive, be deemed sufficient to support a claim of property in a court of prize. Captors are supposed to lay their hands on the gross tangible property, on which there may be many just claims outstanding, between other parties, which can have no operation as to them. If such a rule did not exist, it would. be quite impossible for captors to know upon what grounds they were proceeding to make any seizure. The fairest and most credible documents, declaring the property to belong to the enemy, would only serve to mislead them, if such documents were liable to be overruled by liens which could not in any manner come to their knowledge. It would be equally impossible for the court which has to decide upon the question of property, to admit such considerations. The doctrine of liens depends very much on the particular rules of jurisprudence, which prevail in different countries. To decide judicially on such claims, would require of the court a perfect knowledge of the law of covenant, and the application of that law in all countries, under all the diversities in which that law exists. From necessity, therefore, the court would be obliged to shut the door against such discussions, and to decide on the simple title of property, with scarcely any exceptions. Then what is the proprietor's character of the ship? She is described as the prop

erty of the Spanish merchant, Mr. Romero. She is sailing under the Spanish flag, and is fully invested with the Spanish character, not ostensibly only, but actually, and in the real intention and understanding of the parties. She had been sold to Mr. Romero; but it is said that a part of the purchase money had not been paid. That objection can have little weight, since it is a matter solely for the consideration of the person who sells, to judge what mode of payment he will accept. He may consent to take a bill of exchange, or he may rely on the promissory note of the purchaser, which may not come in payment for a considerable time, or may never be paid. The court will not look to such contingencies. It will be sufficient that a legal transfer has been made, and that the mode of payment, whatever it is, has been accepted. Upon this view of the principle upon which the prize court has always acted, the ship must be considered to have been legally transferred, and must be pronounced subject to condemnation, as Spanish property, which will dispose of that part of the claim which prays for an indemnification to be allowed out of the freight."

The Court continued: "Then as to the title of property in the goods, which are said to have been going, as the funds out of which the payment for the ship was to have been made. That they were going for the payment of a debt, will not alter the property -There must be something more."

The rest of this case deals with the enemy character of funds on the ship, claimed to be bound for London for the purpose of completing the payment on the ship. The Court held that the American vendor of the ship had not acquired ownership of this property and it was condemned.

After examining the conditions of the shipment, Sir William Scott concluded: . . I am of opinion that the title of property in the ship had been effectually transferred, and that no title of property in the parcel of tallow had been acquired.” 1

(Extract from C. Robinson: Admiralty Reports, vol. VI, pp. 24-28.)

1 The discussion of a second question, concerning the rights of neutral goods shipped before the outbreak of war, is omitted. - Ed.