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TRANSFER OF ENEMY VESSEL TO NEUTRAL FLAG, AFTER OUTBREAK OF HOSTILITIES.
The transfer of an enemy vessel to a neutral flag effected
after the outbreak of hostilities, is void unless it is proved that such transfer was not made in order to evade the con
sequences to which an enemy vessel, as such, is exposed. There, however, is an absolute presumption that a transfer
is void: (1) If the transfer has been made during a voyage or in a
blockaded port. (2) If a right to repurchase or recover the vessel is reserved
to the vendor. (3) If the requirements of the municipal law governing the
right to fly the flag under which the vessel is sailing, have not been fulfilled.-Declaration of London, Article 56.
The rule respecting transfers made after the outbreak of hostilities is more simple. Such a transfer is only valid if it is proved that its object was not to evade the consequences to which an enemy vessel. as such, is exposed. The rule accepted in respect of transfers made before the outbreak of hostilities is inverted. In that case there is a presumption that the transfer is valid ; in the present, that it is void-provided always, that proof to the contrary may be given. For instance, it might be proved that the transfer had taken place by inheritance.
Article 56 recites cases in which the presumption that the transfer is void is absolute, for reasons which can be readily understood. In the first case the connection between the transfer and the war risk run by the vessel is evident. In the second, the transferee is a mere man of straw, who is to be treated as owner during a dangerous period, after which the vendor will recover possession of his vessel. Lastly, the third case might strictly be regarded as already provided for, since a vessel which lays claim to neutral nationality must naturally prove that she has a right to it.
At one time provision was made in this article for the case of a vessel which was retained, after the transfer, in the trade in which she had previously been engaged. Such a circumstance is in the
il highest degree suspicious; the transfer has a fictitious appearance. inasmuch as nothing has changed in regard to the vessel's trade. This would apply, for instance, if a vessel vere running on the same line before and after the transfer. It was, however, objected that to set up an absolute presumption would sometimes be too severe, and that certain kinds of vessels, as, for example, tank ships, could, on account of their build, engage only in a certain definite trade. To meet this objection the word “route was then added, so that it would have been necessary that the vessel should be engaged in the
same trade and on the same route; it was thought that in this way the above contention would have been satisfactorily met. However, the suppression of this case from the list being insisted on, it was agreed to eliminate it. Consequently, a transfer of this character now falls within the general rule; it is certainly presumed to be void, but the presumption may be rebutted.
Report of committee which drafted Declaration of London. The transfer of an enemy vessel to a neutral flag effected after the outbreak of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences to which an enemy vessel, as such, is exposed.
There is, however, an absolute presumption that a transfer is void: 1. if the transfer has been made during a voyage or in a blockaded port; 2. if a right to repurchase or recover the vessel is reserved to the vendor; 3. if the requirements of the municipal law governing the right to fly the flag under which the vessel is sailing, have not been fulfilled.
Institute, 1913, p. 187. As to property in transitu.
it may be here observed, that property which has a hostile character at the commencement of the voyage cannot change that character by assignment, while it is in transitu, so as to protect it from capture. This would lead to fraudulent contrivances to protect the property from capture, by colorable assignments to neutrals. But if a shipment be made in peace, and not in expectation of war, and the contract lays the risk of the shipment on the neutral consignor, the legal property will remain to the end of the voyage in the consignor. During peace, a transfer in transitu may be made; but when war is existing or impending, the belligerent rule applies, and the ownership of the property is deemed to continue as it was at the time of the shipment until actual delivery. This illegality of transfer, during or in contemplation of war, is for the sake of the belligerent right, and to prevent secret transfers from the enemy to neutrals, in fraud of that right, and upon conditions and reservations which it might be impossible to detect. So property shipped from a neutral to the enemy's country, under a contract to become the property of the enemy on arrival, may be taken in transitu as enemy's property; for capture is considered as delivery. The Captor, by the rights of war, stands in the place of the enemy. The prize courts will not allow a neutral and belligerent, by a special agreement, to change the ordinary rule of peace, by which goods ordered and delivered to the master are considered as delivered to the consignee. All such agreements, though valid in time of peace. are in time of war, or in peace, if made in contemplation of war, and with intent to protect from capture, held to be constructively fraudulent; and if they could operate, they would go to cover all belligerent property, while passing between a belligerent and a neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stand in the one or the other of those relations. These principles of the English admirality have been explicitly recognised and acted upon by the
prize courts in this country. The great principles of national law were held to require, that, in war, enemy's property should not change its hostile character, in transitu; and that no secret liens, no future elections, no private contracts looking to future events, should be able to cover private property while sailing on the ocean. Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost. All reservation of risk to the neutral consignors, in order to protect belligerent consignees, are held to be fraudulent; and these numerous and strict rules of the maritime jurisprudence of the prize courts are intended to uphold the rights of lawful maritime capture, and to prevent frauds, and to preserve candor and good faith in the intercourse between belligerents and neutrals. The modern cases contain numerous and striking instances of the acuteness of the captors in tracking out deceit, and of the dexterity of the claimants in eluding investigation.
Kent, vol. 1, pp. 95-97. The transfer, in time of war, of the vessel of an enemy to a neutral. is a transaction, from its very nature, liable to strong suspicion, and consequently is examined with a jealous and sharp vigilance, and subjected to rules of a peculiar strictness in the prize court of the opposite belligerent. Nevertheless, neutrals have a right to make such purchases of merchant vessels, when they act with good faith. and, consequently, the belligerent powers are not justified, by the law of nations, in attempting to prohibit such transfers by a sweeping interdiction, as was done in former years by both the French and English governments. Ordinances of this character form no part of the law of nations, and, consequently, are not binding upon the prize courts, even of the country by which they are issued. Nevertheless, where the sale is claimed to have been made by an enemy to a neutral, in time of war, it is not unreasonable that its motives, nature and terms should be an object of the most searching inquiry. The temptation to fraud, in such cases, is so great that the entire transaction should be most strictly examined, otherwise the opposing belligerent might be deprived of his just rights of capture. Hence courts of admiralty have established very severe rules respecting such transfers.
Halleck, p. 483, 481. Transfer in transitu.
ships cannot easily transfer their nationality on a voyage, the act of so doing being presumptive evidence of a fraudulent intention to screen them from the liabilities of their former nationality.
Woolsey, p. 297. The right which a neutral has to carry on innocuous trade with a belligerent of course involves the general right to export from a belligerent state merchandise which has become his by bona fide
purchase. Vessels, according to the practice of France, and apparently of some other states, are however excepted on the ground of the difficulty of preventing fraud. Their sale is forbidden, and they are declared good prize in all cases in which they have been transferred to neutrals after the buyers could have knowledge of the outbreak of a war. In England and the United States, on the contrary, the right to purchase vessels is in principle admitted, they being in themselves legitimate objects of trade as fully as any other kind of merchandise, but the opportunities of fraud being great, the circumstances attending a sale are severely scrutinised, and a transfer is not held to be good if it is subjected to any condition or even tacit understanding by which the vendor keeps an interest in the vessel or its profits, a control over it, a power of revocation, or a right to its restoration at the conclusion of the war.
Hall, p. 525, 526. With respect to vessels and merchandise, belonging to an enemy, in transit upon the ocean, the French doctrine gave no scope for special usage until the freedom of neutral goods on board belligerent Vessels was accepted by the Declaration of Paris. A valid sale of a Vessel being always impossible during war, enemy_goods on board an enemy vessel necessarily remained liable to capture; and enemy goods in course of transport by a neutral being protected by the flag, the effect of sale did not need to be considered. By English and American custom all sales during war of property in transitu are bad, unless the transferee has actually taken possession, the probability that they are fraudulently intended being thought to be so high as to amount to a practical certainty;
Hall, p. 526. Further, a ship may have been transferred by enemies to friends with all the external completeness necessary by the laws of the neutral country for the grant of its flag, but the vendors may have retained an undisclosed interest, the apparent transaction being only a blind to avoid capture. In that case it is thought to be no want of respect to the flag she bears that it shall not protect her. Belligerents, conceiving themselves to have a right to all enemy property at sea, call the transaction a fraud on their rights, and the honour of the neutral state is not thought to be engaged in the protection of fraud. To cut short all tedious and often baffling investigations into such frauds, the French practice, dating as far back as the Réglement of 1694 and confirmed by that of 1778, ignores all sales of ships by enemies not made by authentic acts previous to the declaration of war or the commencement of hostilities. The English practice lays down no rigid rule except one which it applies to cargoes as well as to ships, namely that “in case of war, either actual or imminent
a mere transfer by documents which would be sufficient to bind the parties is not sufficient to change the property as against captors, as long as the ship or goods remain in transitu. The true ground on which the rule rests
is that, while the ship is on the seas, the title of the vendee cannot be completed by actual delivery of the vessel or goods. The difficulty of detecting frauds if mere paper transfers are held sufficient is so great, that
the courts have laid down that in order to defeat the captors the possession as well as the property must be changed before the seizne.
The only question of law which can be raised is how long the transitus continues, and when and by what means it is terminated.
It is true that in one sense the ship and goods may be said to be in transitu till they have reached their original port of destination, but " for the present purpose " the transitus ceases when the property has come into the actual possession of the transferee," as it may do by the ship's calling at an intermediate port where the transferee can take possession.
Westlake. vol. 2. pp. 171, 172; The Baltica, 11 Moore P'. (., 145, 146.
With regard to property at sea, it often happens that the enemy owners of merchantmen entitled to fly the enemy flag endeavor at the outbreak of war, or even in anticipation of it, to transfer their vessels to neutrals in order that the neutral flag may protect them from capture, and sometimes these transfers are merely colorable. Belligerents are therefore obliged to take precautions against erasion of their rights. The rules laid down by maritime powers in order to effect this purpose proceeded on similar lines, but did not agree in every particular. The subject was, therefore, discussed at the Naval Conference of 1908-1909 with a view to bringing about uniformity; and a unanimous agreement was reached. Its terms are embodied in Articles 55 and 56 of the Declaration of London.
Lawrence, p. 380.
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 dirests these ressels 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. Aecoriling to French 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 the 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 fiile, was not effected either in a blockaded port or while the lessol was in transitu, the vendor did not retain an interest in the vessel or did not stipulate a right to recover or repurchase the ressel after the conclusion of the war, and the transfer was not made in transitu in contemplation of war.
Oppenheim, vol. 2, pp. 117. 118.