Enemy
Character

bound by the flag which they have chosen to adopt, but captors as against them are not so bound.' 1

The following rules apply to all neutral vessels which have acquired enemy character :-(a) all enemy goods on board may be confiscated, even if, when they were first shipped, the vessels were neutral; (b) all goods on board will be presumed to be enemy goods, and the owners of neutral goods will have to prove their neutral character; (c) the rules concerning the sinking of neutral prizes do not apply, because these vessels are now enemy vessels.

§ 90. It is an old customary rule 2 that all goods found of Goods. on board an enemy merchantman are presumed to be enemy goods unless the contrary is proved by neutral owners. It is, further, generally recognised that the enemy character of goods depends upon the enemy character of their owners. As, however, no universally recognised rules exist as to the enemy character of individuals, there are no universally recognised rules as to the enemy character of goods. The unratified Declaration of London did not purport to lay down any, because the Powers could not reach agreement.

(1) Since, according to British and American practice, domicile in enemy country makes an individual bear enemy character, all goods belonging to individuals domiciled in enemy country are enemy goods, and all

1 3 B. and C. P. C. 80, at p. 83. On the case of The Presidente Mitre, see Garner, i. § 135.

2 See The Roland, (1915) 1 B. and C. P. C. 188, and the French case of The Porto, (1915), R. G., xxiii. (1916), Jurisprudence, p. 66, and Garner, i. § 113. The rule was embodied in the unratified Declaration of London.

3 See, for example, the definition of 'enemy' as 'persons and bodies of persons resident or carrying on business in any country with which His Majesty is for the time being at War' in the Trading with the Enemy

(Amendment) Act, 1914 (5. Geo. v. c. 12), and the definition in the American Trading with the Enemy Act of 1917 cited by Garner, i. § 144.

4 The British Prize Court does not recognise the claims of a pledgee, but has regard to the legal ownership of the goods. The Odessa, (1914) 1 B. and C. P. C. 163, 554; and cp. The Ningchow, (1915) 1 B. and C. P. C. 288; [1916] P. 221, where the pledgors had lost their right to redeem, and had thereby ceased to be owners.

For this

goods belonging to individuals not resident in enemy country are not, as a rule, enemy goods. reason, goods belonging to enemy subjects residing in neutral countries 1 do not, but goods belonging to subjects of neutral States residing in enemy country do bear enemy character, although they may be the goods of a foreign consul foreign consul appointed and residing in enemy country.3 Further, the goods of subjects of one belligerent domiciled on the territory of the other and allowed to remain there after the outbreak of war, acquire enemy character in the eyes of the former, but lose it (for the purposes of prize law) in the eyes of the latter.4 Again, the produce of an estate on enemy territory belonging to an absent neutral subject bears enemy character, for nothing 5 can be more decided and fixed than the principle. that the possession of the soil does impress upon the owner the character of the country, as far as the produce of that plantation is concerned .. whatever the local residence of the owner may be.' Further, the property of a house of trade established in an enemy country by a neutral subject resident elsewhere likewise bears enemy character, because the owner has a commercial domicile in enemy country. Lastly, the enemy character of property of an enemy subject domiciled in enemy

1 The Postilion, (1779) Hay and Marriot, 245; The Danous, (1802) 4 C. Rob. 255 n. But if an enemy subject with a neutral domicile abandons it before the capture of his goods, these goods then bear enemy character; The Flamengo, (1915) 1 B. and C. P. C. 509. Goods belonging to an enemy firm in a neutral country where foreigners are exterritorial (such as China) bear enemy character; The Eumaeus, (1915) 1 B. and C. P. C. 605.

The Baltica, (1857) 11 Moore P.C. 141.

3 The Indian Chief, (1801) 3 C. Rob. 12.

• The Venus, (1814) 8 Cranch 253. VOL. II.

I

5 From the judgment of Sir William Scott in the case of The Phoenix, (1803) 5 C. Rob. 41; see also The Asturian, (1916) 2 B. and C. P. C. 202; [1916] P. 150; Thirty Hogsheads of Sugar v. Boyle (Bentzen v. Boyle), (1815) 9 Cranch 191.

The Anglo-Mexican and The Lutzow, (1917) 3 B. and C. P. C. 24, 37. The Judicial Committee of the Privy Council, in reversing the decisions of the courts below, laid down the limit of this doctrine. See also the old cases of The Portland, (1800) 3 C. Rob. 41; The Jonge Klassina, (1803) 5 C. Rob. 297; The Freundschaft, (1819) 4 Wheaton 105.

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.

§ 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 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.

6

This subject is fully discussed by Garner, i. §§ 121-138.

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.

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.