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CHAPTER V.- Transfer of flag.1 ART. 55. The transfer of an enemy vessel to a neutral flag, effected before the opening of hostilities, is 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. There is, however, a presumption that the transfer is void if the bill of sale is not on board in case the vessel has lost her belligerent nationality less than sixty days before the opening of hostilities. Proof to the contrary is admitted.
There is absolute presumption of the validity of a transfer effected more than thirty days before the opening of hostilities if it is absolute, complete, conforms to the laws of the countries concerned, and if its effect is such that the control of the vessel and the profits of her employment do not remain in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the opening of hostilities, and if the bill of sale is not on board, the capture of the vessel would not give a right to compensation.
ART. 56. The transfer of an enemy vessel to a neutral flag, effected after the opening of hostilities, is vo d unless it is proved that such transfer was not made in order to evade the consequences which the enemy character of the vessel would involve.
There is, however, absolute presumption that a transfer is void:
(1) If the transfer has been made during a voyage or in a blockaded port.
(2) If there is a right of redemption or of reversion.
(3) If the requirements upon which the right to fly the flag depends according to the laws of the country of the flag hoisted have not been observed.
CHAPTER VI.- Enemy character. ART. 57. Subject to the provisions respecting the transfer of flag, the neutral or enemy character of a vessel is determined by the flag which she has the right to fly.?
1 See 2 (g) Italian Regulations, July 15, 1915, p. 115. 2 File No. 763.72112/1803.]
A nibassador W. H. Page to the Secretary of State.
AMERICAN EMBASSY, London, October 28, 1915. Following is text of order in council, dated October 20, 1915:
“Whereas by the Declaration of London, order in council, No. 2, 1914, His Majesty was pleased to declare that during the present hostilities the provisions of the said Declaration of London should, subject to certain exceptions and modifications therein specified, be adopted and put in force by His Majesty's Government; and
“Whereas by article 57 of the said declaration, it is provided that the neutralor enemy character of a vessel is determined by the flag which she is entitled to fly; and
“Whereas it is no longer expedient to adopt the said article:
“Now, therefore, His Majesty, by and with the advice of his privy council, is pleased to order, and it is hereby ordered, that from and after this date article 57 of the Declaration of London shall cease to be adopted and put in force.
“In lieu of the said article, British prize courts shall apply the rules and principles formerly observed in such courts.
“This order may be cited as "The Declaration of London order in council, 1915.
The case in which a neutral vessel is engaged in a trade which is reserved in time of peace remains outside the scope of, and is in no wise affected by, this rule.
ART. 58. The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of the owner.
ART. 59. If the neutral character of goods found on board an enemy vessel is not proven, they are presumed to be enemy goods.
ART. 60. The enemy character of goods on board an enemy vessel continues until they reach their destination, notwithstanding an intervening transfer after the opening of hostilities while the goods are being forwarded.
If, however, prior to the capture, a former neutral owner exercises, on the bankruptcy of a present enemy owner, a legal right to recover the goods, they regain their neutral character.
CHAPTER VII.—Convoy." ART. 61. Neutral vessels under convoy of their national flag are exempt from search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent ship of war, all information as to the character of the vessels and their cargues, which could be obtained by visit and search.
ART. 62. If the commander of the belligerent ship of war has reason to suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to him. In such a case it is for the commander of the convoy alone to conduct an investigation. He must state the result of such investigation in a report, of which a copy is furnished to the officer of the ship of war. If, in the
“And the lords commissioners of His Majesty's treasury, the lords commissioners of the admiralty, and each of His Majesty's principal secretaries of state, the president of the probate, divorce, and admiralty division of the high court of justice, all other judges of His Majesty's prize courts, and all governors, officers, and authorities whom it may concern, are to give the necessary directions herein as to them may respectively appertain."
PAGE. File No. 763.72112/1805.]
Ambassador Sharp to the Secretary of State.
AMERICAN EMBASSY, Paris, October 26, 1915. Following decree published in Journal Officiel to-day:
“Article 1. The provisions of article 57, paragraph 1, of the Declaration signed at London, February 26, 1909, relating to naval warfare, shall be applied during the present war, with the following modification to it whenever it is established that a ship flying an enemy flag belongs in fact to the nationals of a neutral or an allied country, or conversely that a ship flying a neutral or allied flag belongs in fact to nationals of an enemy country, or to parties residing in an enemy country, the ship shall accordi: oly be considered neutral, allied, or enemy.
“Article 2. The president of the council, minister for foreign affairs, and the minister of marine, each in his province, are charged with the execution of this decree.”
SHARP. 1 See 10 Italian Regulations, July 15, 1915, p. 116.
opinion of the commander of the convoy, the facts thus stated justify the capture of one or more vessels, the protection of the convoy must be withdrawn from such vessels.
CHAPTER VIII.—Resistance to search. ART. 63. Forcible resistance to the legitimate exercise of the right of stoppage, visit and search, and capture, involves in all cases the condemnation of the vessel. The cargo is liable to the same treatment which the cargo of an enemy vessel would undergo. Goods belonging to the master or owner of the vessel are regarded as enemy goods.
CHAPTER IX.-Compensation. ART. 64. If the capture of a vessel or of goods is not upheld by the prize court, or if without being brought to judgment the captured vessel is released, those interested have the right to compensation, unless there were sufficient reasons for capturing the vessel or goods.
FINAL PROVISIONS. ART. 65. The provisions of the present declaration form an indivisible whole.
ART. 66. The signatory powers undertake to secure the reciprocal observance of the rules contained in this declaration in case of a war in which the belligerents are all parties to this declaration. They will therefore issue the necessary instructions to their authorities and to their armed forces, and will take the measures which are proper in order to guarantee the application of the declaration by their courts and more particularly by their prize courts. ART. 67. The present declaration shall be ratified as soon as possible. The ratifications shall be deposited in London.
1 The Italian decree of July 15, 1915, furnishes an example of recent regulations.
ITALIAN NAVAL PRIZE REGULATIONS.
(Approved by decree of July 15, 1915.)
1. In execution of the royal de ree of the 16th May, 1915, suspening the application of article 211 of the Mercantile Marine Code during the present conflict, the capture of enemy merchant ships is authorized in every case, with the following exceptions:
(a) Sailing boats adapted exclusively to shoal-water fishing, or to short local services within 3 miles of the enemy coast, proviled they do not exceed 5 tons displacement, nor violate special provisions issued by the military authorities concerning fishing and navigation.
(6) Ships exclusively employed for religious, scientific or philanthropic purposes, hospital ships rttei out by private persons or charitable societies expressly recognized as such by the Royal Government in accordance with special instructions issued to naval comman ling officers.
Cargoes which are enemy property in boats specifielunder (a) are exempt from sequestration, provided they do not include contraband of war; cargoes which are enemy property are equally exempt on board ships specified under (b) when connected with the mission on which the ship is engaged.
The first deposit of ratifications shall be recorded in a protocol signed by the representatives of the powers taking part therein, and by His Britannic Majesty's principal secretary of state for foreign affairs.
The subsequent deposits of ratifications shall be made by means of a written notification addressed to the British Government, and accompanied by the instrument of ratification.
A duly certified copy of the protocol relating to the first deposit of ratifications, and of the notifications mentioned in the preceding paragraph as well as of the instruments of ratification which accompany them, shall be immediately sent by the British Government, through the diplomatic channel, to the signatory powers. The said Government shall, in the cases contemplated in the preceding para
Boats and ships included under (a) and (6) are, however, in every case subject to capture as well as their cargoes, being enemy property, when such ships and boats take any direct or indirect part in hostilities.
2. Merchant ships, under whatever flag they may be sailing, shall be subject to capture in accordance with the provisions of the following articles if
(a) Guilty of violation of blockade;
(e) They are without ship's papers, or have on board ship's papers or manifests which are either falsified, altered, or insufficient so as to give rise to suspicion that they are concealing their real nationality or the real description or destination of the cargo;
(f) They are going to an enemy port, while on the ship's papers a neutral destination is indicated;
(9) They have been transferred from an enemy to a neutral flag subsequent to the outbreak of war, or not more than 30 days before that date, or not more than 60 days when the deed of sale by which the transfer of flag was effected is not found on board.
3. A ship is liable to be captured for violation of blockade when it endeavors to enter or leave a blockaded zone without being furnished with a formal safe-conduct, or when, after having obtained a safe-conduct to enter or leave, it does not observe the rules laid down as to the route which it must follow while navigating in the blockaded zone or crossing the line of blockade.
4. If a ship is shaping its course toward a blockaded zone in ignorance of the existence of the blockade, she shall be notified of it by one of the blockading vessels, entry to that effect, being made, if possible, in her log.
Ignorance of the existence of blockade is assumed when this has been declared after the ship left its last port of call.
5. Are considered as contraband of war the objects and materials included in the respective lists approved by decree.
Articles of absolute and conditional contraband are seized when their destination is territory belonging to or occupied by the enemy, or when consigned to the enemy's forces.
Both absolute and conditional contraband on board a ship proceding to a neutral port is subject to seizure when the name of the consignee does not appear on the manifest, or when the ultimate consignee resides in territory belonging to or occupied by the enemy, or when the goods are consigned to agents of any enemy Government, wherever established, or to third persons who are receivers of the goods on account of agents of an enemy Government.
6. A ship carrying absolute or conditional contraband may be captured on the high sea or in belligerent territorial waters at any time during its voyage.
If, however, contraband articles form a small part of the cargo, naval commanding officers may at their discretion take over, and, if circumstances require it, destroy the
graph, inform them at the same time of the date on which it received the notification.
ART. 68. The present declaration shall take effect, in the case of the powers which were parties to the first deposit of ratifications, sixty days after the date of the protocol recording such deposit, and, in the case of the powers which shall ratify subsequently, sixty days after the notification of their ratification shall have been received by the British Government.
ART. 69. In the event of one of the signatory powers wishing to denounce the present declaration, such denunciation can only be made to take effect at the end of a period of twelve years, beginning sixty days after the first deposit of ratifications, and, after that time,
contraband goods, and after noting the fact in the ship's log may allow the vessel to continue her voyage.
7. A ship shall be captured as guilty of giving assistance to the enemy if she(a) Has taken direct part in hostilities.
(6) Has been entirely chartered by an enemy Government, or has on board an agent of such Government in control of the ship;
(c) Is employed exclusively for the transport of troops, or for the transmission of news in the enemy's interest;
(d) Is engaged in transporting enemy military detachments or persons who during the voyage may render or have lent direct assistance to the enemy's operations with the knowledge of the owner, charterer, or master;
(e) Is navigating with the specific object of transporting individuals on their way to join the enemy's armed forces.
8. Persons belonging to or intending to join the enemy's armed forces found on board a neutral vessel may be made prisoners of war, even though the ship be not subject to capture.
9. To carry out the instructions contained in the preceding articles, naval commanding o.ficers, whenever it is judged useful, shall proceed to visit merchant ships on the high sea or in belligerent waters, or may request them to proceed to the nearest port to undergo visit there.
10. Neutral vessels convoyed by a ship of war shall be exempt from visit provided that the commander of the convoy declares in writing the character and cargo of the convoyed vessel in such a manner as will enable all information to be available which could be obtained by exercising the right of visit. If the naval officers in command have reason to think that the good faith of the commanding officer of the escort has been imposed upon, they will communicate to him their suspicion, so that he may on his own account make the necessary verifications and issue a written re
11. The vessels or goods captured shall be brought to the nearest port in the kingdom, colonies, or territory occupied by Italy, or, this being impossible, to a port of an allied nation or occupied hy the latter, or in case of absolute necessity to a neutral port. The vessels and goods shall there be placed at the disposal of the maritime and consular authorities as the case requires, together with a report of what has been done, accom panied by the respective declarations and documents.
12. When observance of the provisions of the preceding article may endanger the safety of the ship effecting the capture, or may interfere with the success of operations of war in which she is engaged, naval commanding officers may destroy the prize after providing for the safety of the persons on board and the ship's papers and manifests and of anything else which may help in deciding the legitimacy of the capture. The destruction of a prize must be justified in a special procès-verbal. By order of His Majesty's lieutenant general, ministry of marine:
VIALE. (British Parliamentary Papers, Misc. No. 18 (1915), cd. 8104.)