but in contemplation of its breaking out, unless there is satisfactory proof that the Transfer was bona fide and complete. In the event of such a Transfer being alleged, the Commander should call for the Bill of Sale, and also for any Papers or Correspondence relating to the same. If the Bill of Sale is not forthcoming, and its absence is unaccounted for, he should detain the Vessel. If the Bill of Sale is produced, its contents should be carefully examined, especially in the following particulars:

a. The Name and Residence of the Vendor.
b. The Name and Residence of the Purchaser.
c. The Place and Date of the Purchase.

d. The Consideration-money and the Receipt.
e. The Terms of the Sale.

f. The Service of the Vessel and the Name of the Master, both before and after the Transfer.

The Name and Residence of the Vendor are material to show whether or not he was an Enemy.

The Name and Residence of the Purchaser are material to show whether or not he was a person resident in British, Allied, or Neutral Territory.

The Date and Place of the Purchase are material to show whether or not the Transfer was made in contemplation or in consequence of the war.

The Consideration-money is material, in case the Vessel is alleged to have been transferred by Sale, to show whether or not the transaction was bona fide. For if the transaction was professedly a Sale, then the fact that the consideration was nominal or wholly inadequate would be a just cause for suspicion. But a Transfer by way of gift or bequest will, if bonâ fide and complete, be as valid as a Transfer by way of Sale.

The Receipt for the purchase-money should be called for in case the Vessel is alleged to have been transferred by Sale; but if there is proof that the Sale was bona fide and in other respects complete, the Transfer will be good, although no Receipt is forthcoming, and even although the Purchase-money has not in fact been paid. For the Prize Court does not consider any lien which an Enemy vendor may have upon a Vessel or Cargo or Freight for unpaid purchasemoney to be a subsisting Enemy's interest rendering the Vessel liable to confiscation. However, the fact that the Purchase-money, instead of having been paid in Cash, has only been carried to an account, will raise the presumption of the Transfer being merely colorable, and such presumption can be rebutted only by clear proof to the contrary.

The terms of the Sale are material to show whether the transfer was complete. The Transfer would not be complete if the Sale was not absolute; as, if it contained a Power of Revocation, or a condition for a return of the Vessel at the close of the war, or a reservation of the profits of the Vessel, or of any control over her to be left in the hands of the former Owner.

The Service of the Vessel, and the name of the Master both before and after the Transfer, are material to show whether or not the Transfer be a genuine one; for if the Service has continued unaltered by the Transfer, the Commander will be justified in holding

the Transfer to be colorable only. The fact that the same Master is retained in command after the Transfer raises a suspicion, but, standing alone, will not be conclusive that the Transfer was not bonâ fide.

If the Transfer is bonâ fide and complete as between the parties, the fact that it was effected in fraud of the Revenue or the law of the Mercantile Marine of any Foreign Country will be immaterial.

If the Purchase was made through an Agent, the Letters of Procuration should be called for.

Holland, p. 7.

British position.

The commander will be justified in treating as a British vessel

4. Any vessel apparently owned by a person having a neutral commercial domicile, if such person has acquired the ownership by a transfer from a British subject made after the vessel had started upon the voyage during which she is met with, and has not yet actually taken possession of her.

5. Any vessel apparently owned by a person having a neutral commercial domicile, if such person has acquired the ownership by a transfer from a British subject made at any time during the war, or previous to the war but in contemplation of its breaking out, unless there is satisfactory proof that the transfer was bonâ fire and complete.

Holland, p. 13.

Contra as to presumption.

By enemy ships are meant those enumerated below:

*

**

*

* before the

* *

4. Ships the ownership of which has been transferred by the hostile state, or by individuals of that nation, war in anticipation of hostilities breaking out domiciled in Japan or in a neutral country, there being no proof that the transfer of ownership was bona fide and complete.

to a person

When the ownership of a ship is transferred while she is on her voyage, and actual delivery has not yet taken place, the transfer of ownership shall be regarded as not bona fide and complete.

Japanese Regulations, 1904, Article 6.

When the transfer to a neutral flag took place earlier than 30 days before the outbreak of hostilities, the ship is to be treated as hostile only when

(a) The transfer took place later than 60 days before the outbreak of hostilities, provided further,

(b) the transfer is only conditional or incomplete or not in conformity with the legal requirements of the participant countries, or the result is that the control of the ship or the earnings from her and when employment remain in the same hands as before; and when besides

(e) grounds exist for the belief that it can be proved before the prize court that the transfer was effected in order to relieve the ship of the consequences of her character as an enemy ship.

This especially may be taken for granted when the transfer document is not found on board; the bringing in of the ship in such a case never gives rise to a claim for damages (See 8).

German Prize Rules, 1909, Article 14.

When the transfer to a neutral flag has taken place within 30 days before the outbreak of war, the ship is to be treated as hostile; provided:

(a) Either the legal requirements necessary to the validity of the transfer have not been fulfilled, so that an actually valid transfer to the neutral flag has not taken place.

(b) Or there is good reason to believe that it can be proved before the prize court that the transfer took place to relieve the ship of the consequences of her character as an enemy ship. (See 12 (a)). So especially when the ship after the transfer is further employed on the same route as before.

(c) Or the transfer document is not on board, unless sufficient evidence is shown that the transfer would also have taken place without war (See 12 (a)); the seizure of the ship in such a case gives rise to no claim for damages (See 8).

German Prize Rules, 1909, Article 13.

When the captain is not in a position to determine to which flag a vessel which has been transferred to a neutral flag formerly belonged he is authorized to assume that she belonged to the enemy flag.

German Prize Rules, 1909, Article 15.

Treatment of crew of captured vessel.

* * *

If a ship be captured under 10 to 16a, as an enemy ship [including cases of illegal transfer] the Master, officers and members of the crew-as far as they are of the enemy's nationality,-will not be made prisoners of war, if they bind themselves on the strength of a formal written promise to engage in no service, during the period of the war, that may have any connection with the hostile undertakings of the enemy.

German Prize Rules, 1909, Article 100.

Sections 109 and 110, French Naval Instructions, 1912, are identical with Article 55, Declaration of London.

Article 55, Declaration of London, is substantially identical with section 10, Austro-Hungarian Manual, 1913.

The "Juffrouwr Elbrecht," 1 C. Rob. 126.-In this case the neutral claimant alleged that he had bought the vessel (from an enemy subject) six months before the war broke out.

However, the court said that at the time of the alleged purchase, "the prospect of a war was certain," and condemned the vessel because she continued in enemy trade, all the affairs of the vessel appeared to have remained in enemy hands and the master resided in enemy territory.

Property in transit.

The "Jan Frederick," 5 C. Rob., 133.-In this case the court said that a transfer of property in transitu, in time of war, "is pro

hibited as a vicious contract; being a fraud on belligerent rights, not only in the particular transaction, but in the great facility which it would necessarily introduce, of evading these rights beyond possibility of detection."

The court extended the above rule to cover the case of property sold before the war, but in avowed contemplation thereof, and on this ground condemned the property which formed the subject matter of the litigation.

The "Christine," 2 Spinks, pp. 24-27.-This was a case of a Russian vessel, alleged to have been transferred, shortly before the Crimean war, to a citizen of Lubeck, who admitted that he had not paid any part of the purchase price, nor given any security therefor except his own personal engagement. Moreover, there was no bill of sale on board.

On these grounds, the claimed sale being to a person, who was master of the vessel at the time of the sale and who afterwards continued to be master, the vessel was condemned.

The "Soglasie," 2 Spinks, 101-107.-This was the case of a Russian ship, the master of which, holding a power of attorney from the owner, and war being imminent between Great Britain and Russia, sold her to an alleged Danish subject residing and trading in Messina, Italy. There was no proof of the payment of the claimed purchase price. The vessel then sailed to a Russian port, took on a cargo of wheat and went to Copenhagen in transitu for Leith, Scotland. At Copenhagen, by virtue of a bill of sale from the alleged Danish purchaser, agents sold her to the master, who, a few days before had assumed to change his nationality from Russian to Danish.

Held, that in view of the lack of proof of the bona fides of the successive transfers of the vessel and suspicious circumstances connected therewith, the vessel should be condemned.

The "Otto and Olaf," Spinks Prize Cases, 257.-In this case the court adverted to its judgment in the case of The Soglasie, in which the opinion had been expressed that after a purchase by a neutral of an enemy's ship, it would be requisite to produce the "correspondence which preceded, the correspondence which attended, and the correspondence which succeeded the transfer," and added that in the case of vessels which had made many voyages after the transfer, the production of so much correspondence would not be required.

The court said: "Where a vessel has been purchased by a neutral, and continued in a lawful trade for a considerable length of time, the presumption arises in favor of the neutral which would not exist provided it had been the first voyage."

The "Benedict" Spinks Prize Cases, 314.-In this case the court held that the voluntary transfer, while hostilities were pending, of a ship by an enemy father to a son, who is a neutral, as an advance of a portion of his inheritance, is valid, if made in good faith.

The court said that even if the claimant were not justly to be considered a Dane at the time of the transfer, he had certainly acquired that title since, and "I am not aware that a person whose character was hostile may not change his domicile between the period of the transfer and the time of the claim."

The "Ariel," 11 Moore, 119.-This was the case of a Russian vessel sold just before the Crimean war to a Dane. Two-thirds of the pur

chase price was paid, and the rest was to be paid out of the earnings of the vessel. It was claimed that the ship should be condemned because the enemy still retained an interest in her.

Held that as this was clearly an outright sale made in good faith, the captor had no claim on the vessel on account of any liens that might exist on her.

It was said that the mere fact that all the purchase money was not paid was immaterial, because sale and payment are two distinct things.

The Baltica" 11 Moore, 142-150.-This was the case of a Russian vessel which was sold by a Russian subject to a neutral, when war existed between Russia and Great Britain. The sale appeared to have been bona fide and absolute, but was made when the vessel was in the course of a voyage from Libau, an enemy's port, to Copenhagen, a neutral port, where she arrived and was taken possession of by the purchaser. Later she was seized in a British port, by the customs authorities.

Held, that the sale, though in transitu, was valid, as the transitus had ceased when the vessel had come into possession of the purchaser. The court said: "The general rule is open to no doubt. A neutral while a war is imminent * * is at liberty to purchase either goods or ships (not being ships of war) from either belligerent, and the purchase is valid, whether the subject of it be lying in a neutral port or in an enemy's port."