Chapter I: On War in General (3)

[Footnote 149: See below, § 90.]

[Sidenote: Enemy Character of Vessels.]

§ 89. The general rule with regard to vessels is that their character is determined by their flag. Whatever may be the nationality of the owner of a vessel--whether he be a subject of a neutral State, or of either belligerent--she bears enemy character, if she be sailing under the enemy flag. For this reason, the vessel of an enemy owner which sails under a neutral flag does as little bear enemy character as the vessel of the subject of a neutral State sailing under the flag of another neutral State. But the flag is the deciding factor only when the vessel is legitimately sailing under it. Should it be found that a vessel sailing under the flag of a certain neutral State has, according to the Municipal Law of such State, no right to fly the flag she shows, the real character of the vessel must be determined in order to decide whether or no she bears enemy character. On the other hand, it makes no difference that the owner be the subject of a neutral non-littoral State without a maritime flag and that the vessel is, therefore, compelled to fly the flag of a maritime State: if the flag the vessel flies be the enemy flag, she bears enemy character.

The general rule that the flag is the deciding factor has exceptions, and it is convenient to expound the matter according to the rules of the Declaration of London, although it is not yet ratified. The general rule is laid down by article 57 of the Declaration which enacts that, subject to the provisions respecting transfer to another flag, the character of a vessel is determined by the flag she is entitled to fly. Nevertheless, there are two exceptions to this rule:--

(1) According to article 46 of the Declaration[150] a neutral merchantman acquires enemy character by taking a direct part in the hostilities, by being in the exclusive employment of the enemy government, and by being at the time exclusively intended either for the transport of troops or for the transmission of intelligence for the enemy. And it must be emphasised that the act by which a neutral merchantman acquires enemy character need not necessarily be committed _after_ the outbreak of war, for she can, even _before_ the outbreak of war, to such a degree identify herself with a foreign State that, with the outbreak of war against such State, enemy character devolves upon her _ipso facto_, unless she severs her connexion with the State concerned. This is, for instance, the case of a foreign merchantman which in time of peace has been hired by a State for the transport of troops or of war material, and is carrying out her contract in spite of the outbreak of war.[151]

(2) According to article 63 of the Declaration a neutral merchantman acquires enemy character _ipso facto_ by forcibly resisting the legitimate exercise of the right of visitation and capture on the part of a belligerent cruiser (see details below, § 422).

(3) According to British practice--adopted by America and Japan[152]--neutral merchantmen likewise acquire enemy character by violating the so-called rule of 1756,[153] in case they engage in time of war in a trade which the enemy prior to the war reserved exclusively for merchantmen sailing under his own flag. The Declaration of London has neither rejected nor accepted this rule of 1756, for article 57 stipulates expressly that the case where a neutral vessel is engaged in a trade which is closed in time of peace, remains unsettled. It would, therefore, according to article 7 of Convention XII. of the Second Peace Conference, be the task of the proposed International Prize Court to settle this point.

Of whatever kind may be the case of the acquisition of enemy character on the part of a neutral vessel, the following four rules apply to all cases of such neutral vessels as have acquired enemy character:--(_a_) all enemy goods on board may now be confiscated, although when they were first shipped the vessels concerned were neutral; (_b_) all goods on board will now be presumed to be enemy goods, and the owners of neutral goods will have to prove the neutral character of the latter; (_c_) the stipulations of articles 48 and 49 of the Declaration of London concerning the sinking of neutral prizes do not apply, because these vessels are now enemy vessels; (_d_) no appeal may be brought from the national prize courts to the International Prize Court, except with regard to the one question only, whether the vessel concerned has been justly considered to have acquired enemy character (see article 4 of Convention XII. of the Second Hague Peace Conference, concerning the establishment of an International Prize Court).

[Footnote 150: See below, § 410.]

[Footnote 151: The case of the _Kow-shing_ ought here to be mentioned, although it has now lost its former importance:--

On July 14, 1894, the _Kow-shing_, a British ship, was hired at Shanghai by the Chinese Government to serve as a transport for eleven hundred Chinese soldiers and also for arms and ammunition from Tien-tsin to Korea. She was met on July 25 near the island of Phung-do, in Korean waters, by the Japanese fleet; she was signalled to stop, was visited by some prize officers, and, as it was apparent that she was a transport for Chinese soldiers, she was ordered to follow the Japanese cruiser, _Naniwa_. But although the British captain of the vessel was ready to comply with these orders, the Chinese on board would not allow it. Thereupon the Japanese opened fire and sank the vessel. As formerly hostilities could be commenced without a previous declaration of war the action of the Japanese was in accordance with the rules of International Law existing at the time. But in consequence of Convention III. of the Second Peace Conference which requires a declaration of war before the opening of hostilities, such action nowadays would not be justifiable. See Hall, § 168*; Takahashi, pp. 27-51; Holland, _Studies_, pp. 126-128.]

[Footnote 152: See the case of the _Montara_ in Takahashi, p. 633.]

[Footnote 153: See below, § 289, and Higgins, _War and the Private Citizen_ (1912), pp. 169-192.]

[Sidenote: Enemy Character of Goods.]

§ 90. It is an old customary rule that all goods found on board an enemy merchantman are presumed to be enemy goods unless the contrary is proved by the neutral owners concerned. 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 likewise no universally recognised rules in existence as to the enemy character of goods.

(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 goods belonging to individuals not resident in enemy country are not, as a rule, enemy goods. For this reason, goods belonging to enemy subjects residing in neutral countries[154] do not, but goods belonging to subjects of neutral States residing in enemy country[155] do bear enemy character, although they may be the goods of a foreign consul appointed and residing in enemy country.[156] Further, the goods of such subjects of the belligerents as are domiciled on each other's territory and are allowed to remain there after the outbreak of war, acquire enemy character in the eyes of the belligerent whose subjects they are, but lose their enemy character in the eyes of the belligerent on whose territory they are allowed to remain.[157] Again, the produce of an estate on enemy territory belonging to a subject of a neutral State who resides abroad, does bear enemy character, for "_Nothing[158] 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_." Lastly, all such property of a subject of a neutral State residing abroad but having a house of trade within the enemy country as is concerned in the commercial transactions of such house of trade,[159] likewise bears enemy character, because the owner of these goods has a "commercial domicile" in enemy country.

(2) On the other hand, according to French practice, the nationality of the owner of the goods is exclusively the deciding factor, and it does not matter where he resides. Hence only such goods on enemy merchantmen bear enemy character as belong to subjects of the enemy, whether those subjects are residing on enemy or neutral territory; and all such goods on enemy merchantmen as belong to subjects of neutral States do not bear enemy character, whether those subjects reside on neutral or enemy country.[160]

(3) The Declaration of London does not purport to decide the controversy, since the Powers represented at the Naval Conference of London could not agree. Whereas Holland, Spain, and Japan approved of the British and American practice, Austria-Hungary, Italy, Germany, and Russia sided with France. For this reason, the Declaration, by articles 58 and 59, only enacts that the enemy character of goods on enemy vessels is determined by the enemy character of their owner, and that all goods on enemy vessels are presumed to be enemy goods unless the contrary is proved. But the chief question, namely, what is the factor that decides the enemy character of an owner, is deliberately left unanswered. It would, therefore, according to article 7 of Convention XII., be for the proposed International Prize Court to settle it.

[Footnote 154: The _Postilion_ (1779), Hay & Marriot, 245; the _Danous_ (1802), 4 C. Rob. 255, note.]

[Footnote 155: The _Baltica_ (1857), 11 Moore, P.C. 141.]

[Footnote 156: The _Indian Chief_ (1801), 3 C. Rob. 12.]

[Footnote 157: The _Venus_ (1814), 8 Cranch, 253.]

[Footnote 158: From the judgment of Sir William Scott in the case of the _Phoenix_ (1803), 5 C. Rob. 41; see also _Thirty Hogsheads of Sugar_ v. _Boyle_ (_Bentzen_ v. _Boyle_) (1815), 9 Cranch, 191.]

[Footnote 159: The _Portland_ (1800), 3 C. Rob. 41; the _Jonge Klassina_ (1803), 5 C. Rob. 297; the _Freundschaft_ (1819), 4 Wheaton, 105.]

[Footnote 160: See the French cases of:--_Le Hardy contre La Voltigeante_ (1802) and _La Paix_ (1803), 1 Pistoye et Duverdy, pp. 321 and 486; _Le Joan_ (1871), _Le Nicolaüs_ (1871), _Le Thalia_ (1871); _Le Laura-Louise_ (1871), Barboux, pp. 101, 108, 116, 119.]

[Sidenote: Transfer of Enemy Vessels.]

§ 91. The question of the transfer of enemy vessels to subjects of neutral States, either shortly before or during the war, must be regarded as forming part of the larger question of enemy character, for the point to be decided is whether such transfer[161] divests these vessels of their enemy character. It is obvious that, if this point is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property seized and confiscated by selling their vessels to subjects of neutral States. Before the Declaration of London, which is, however, not yet ratified, the maritime Powers had not agreed upon common rules concerning this subject. According to French[162] practice no transfer of enemy vessels to neutrals could be recognised, and a vessel thus transferred retained enemy character; but this concerned only transfer after the outbreak of war, any legitimate transfer anterior to the outbreak of war did give neutral character to a vessel. According to British and American practice, on the other hand, neutral vessels could well 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_,[163] was not effected either in a blockaded port[164] or while the vessel was _in transitu_,[165] the vendor did not retain an interest in the vessel or did not stipulate a right to recover or repurchase the vessel after the conclusion of the war,[166] and the transfer was not made _in transitu_ in contemplation of war.[167]

The Declaration of London offers clear and decisive rules concerning the transfer of enemy vessels, making a distinction between the transfer to a neutral flag _before_ and _after_ the outbreak of hostilities:

(1) According to article 55 of the Declaration, the transfer of an enemy vessel to a neutral flag, if effected _before_ the outbreak of hostilities, is _valid_, unless the captor is able to prove that the transfer was made in order to avoid capture. However, if the bill of sale is not on board the transferred vessel, and if the transfer was effected less than sixty days before the outbreak of hostilities, the transfer is presumed to be void, unless the vessel can prove that such transfer 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 for the purpose of evading capture, it is stipulated that, in case the transfer was effected more than thirty days before the outbreak of hostilities, there is an absolute presumption of its validity, provided the transfer was unconditional, complete, and in conformity with the laws of the countries concerned, and further, provided that neither the control of, nor the profits arising from, the employment of the vessels remain in the same hands as before the transfer. But even in this case a vessel is suspect if the transfer took place less than sixty days before the outbreak of hostilities, and if her bill of sale is not on board. Hence she may be seized and brought into a port of a prize court for investigation, and she cannot claim damages for the capture, even if the Court releases her.

(2) According to article 56 of the Declaration, the transfer of an enemy vessel to a neutral flag, if effected _after_ the outbreak of hostilities, is _void_ unless the vessel can prove that the transfer was not made in order to avoid capture. And such proof is excluded, and an absolute presumption is established that the transfer is void, if the transfer has been made in a blockaded port or while the vessel was _in transitu_, further, if a right to repurchase or recover the vessel is reserved to the vendor, and lastly, if the requirements of the Municipal Law governing the right to fly the flag under which the vessel is sailing have not been fulfilled.

[Footnote 161: See Holland, _Prize Law_, § 19; Hall, § 171; Twiss, II. §§ 162-163; Phillimore, III. § 386; Boeck, Nos. 178-180; Bonfils, Nos. 1344-1349'1; Dupuis, Nos. 117-129, and _Guerre_, Nos. 62-66.]

[Footnote 162: See Dupuis, No. 97.]

[Footnote 163: The _Vigilantia_ (1798), 1 C. Rob. 1; the _Baltica_ (1857), 11 Moore, P.C. 141; the _Benito Estenger_ (1899), 176 United States, 568.]

[Footnote 164: The _General Hamilton_ (1805), 6 C. Rob. 61.]

[Footnote 165: 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.]

[Footnote 166: The _Sechs Geschwistern_ (1801), 4 C. Rob. 100; the _Jemmy_ (1801), 4 C. Rob. 31.]

[Footnote 167: The _Jan Frederick_ (1804), 5 C. Rob. 128.]

[Sidenote: Transfer of Goods on Enemy Vessels.]

§ 92. The subject of the transfer of enemy goods on enemy vessels must likewise be considered as forming part of the larger subject of enemy character, for the question is here also whether such a transfer divests these goods of their enemy character. And concerning this question[168] there was likewise no unanimous practice in existence among the maritime States before the agreement on the Declaration of London. British and American practice refused to recognise a sale _in transitu_ under any circumstances or conditions, if the vessel concerned was captured before the neutral buyer had actually taken possession of the transferred goods.[169] On the other hand, French practice recognised such a sale _in transitu_, provided it could be proved that the transaction was made _bona fide_.[170]

The Declaration of London now stipulates, by article 60, 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 _in transitu_. Hence if such enemy vessel is captured before having reached her destination, goods consigned to enemy subjects may be confiscated, although they have been sold _in transitu_ to subjects of neutral States. A special rule is provided for the case of the enemy consignee of goods on board an enemy vessel becoming bankrupt while the goods are _in transitu_. In a number of countries[171] 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 of the Declaration stipulates in the second paragraph, that if, prior to the capture, the neutral consignor exercises, on the bankruptcy of the enemy consignee, his right of stoppage _in transitu_, the goods regain their neutral character and may not therefore be confiscated.

[Footnote 168: See Hall, § 172; Twiss, II. §§ 162 and 163; Phillimore, III. §§ 387 and 388; Dupuis, No. 1421, and _Guerre_, Nos. 68-73; Boeck, Nos. 182 and 183.]

[Footnote 169: The _Jan Frederick_ (1804), 5 C. Rob. 128; the _Ann Green_ (1812), I Gallison, 274.]

[Footnote 170: See Boeck, No. 162; Dupuis, No. 142.]

[Footnote 171: Great Britain is one of them, see Section 44 of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71).]