Imágenes de páginas


According to the law of nations, neutrals have the right to purchase during war the property of belligerents, whether ships or anything else'; and any regulation of a particular state, which contravenes this doctrine, is against public law, and in mere derogation of the sovereigir authority of all other independent states.

A citizen of the United States may at this time lawfully purchase a merchant ship of either of the belligerents, Turkey, Russia, Great Britain, France, or Sardinia; if purchased bona fide, such ship becomes American property and entitled as such to the protection and to the flag of the United States; and although she cannot take out a register by our law, yet that is because she is foreign built, not because she is belligerent built; and she can obtain a register by special act of Congress. Opinions United States Attorney's General, vol. 6, p. 638. The doctrine of

the right of neutrals to purchase the ships of belligerents reaffirmed.

7 id., p. 538. Contra.

* Inquiries having been addressed to this Department as to the right of a citizen of the United States to purchase a vessel of a belligerent during the existing war in Europe, I have to inform you that a similar question arose during the late Crimean war, was deliberately and carefully investigated by the Administration for the time being, and resulted in a conviction, that a vessel so purchased, in good faith, becomes the property of the purchaser, and is entitled to the protection of the flag of the United States, though a special act of Congress would be necessary to enable her to obtain a register from the proper Department.

* These views are entirely concurred in by the existing executive government of the United States, and will be maintained whenever there may be occasion therefor."

Mr. Cass, Secretary of State, to United States consuls, circular, No. 10,

June 1, 1859, Moore's Digest, Vol. VII. Pp. +17, 418. In reply to a request for some sanction or approval of the proposed transfer of enemy vessels to a neutral in a blockaded Cuban port in 1898, the Department of State said that it could not “ give desired permission or concede any privilege because of transfer from belligerent to neutral in a blockaded port. Vessels might be allowed to sail subject to capture and to adjudication by prize court of bona fides of transaction and of effect, if any, of mortgage, on national character of vessels, prior to transfer.”

Mr. Moore, Assistant Secretary of State. to Messrs. Butler, Notman, Joline,

and Mynderse, May 10, 1898, Moore's Digest, Vol. VII, p. 422. The commander will be justified in treating as a British vessel

[merged small][merged small][ocr errors][ocr errors]

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 bona fide and complete.

Holland, p. 13.

The Commander will be justified in treating as an Enemy Vessel :

[ocr errors][ocr errors][merged small][merged small][merged small]

4. Any Vessel apparently owned by a British, Allied or Neutral subject, as hereinafter defined (see secs. 41, 42, 49, 55, 56), if such person has acquired the ownership by a Transfer from an Enemy 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 British, Allied, or Neutral subject, if such person has acquired the ownership by a Transfer from an Enemy made at any time during the war,

* 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 bona 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 Ene my vendor may have upon a Vessel or Cargo or Freight for unpaid I purchaz

money 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 bona fide.

If the Transfer is bona fide and complete as bet ween 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, pp. 6 and 7. Merchant-vessels purchased from a hostile Power or its subjects by persons of a neutral nationality are to be considered enemy's ressels, unless it is proved that their purchase must be regarded, under the laws of the nation to which the purchasers belong, as having been definitely concluded before the purchasers received information of the declaration of war, or that the vessels were purchased in the manner indicated after the purchasers received that information, but that the purchase was made in perfect good faith, and not with the object of protecting enemy's property.

Russian Regulations, 1895, Article 7. The officer should close the examination and detain the vessel in the following cases :

[ocr errors]


(e) If it appears from the papers that the vessel has been bought by the subject of a neutral State from subjects of the enemy, and there is reason to suppose that a fictitious sale has taken place with the object of protecting enemy's property.

Russian Instructions, 1900. sec. 18.

[merged small][ocr errors][merged small][merged small][merged small]
[ocr errors]

4. Ships the ownership of which has been transferred by the hostile state, or by individuals of that nation,

* * while the war is in actual progress, to a person domiciled in Japan or in a neutral country, there being no proof that the transfer of ownership was bonâ fide and complete.

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 as not bonâ fide and complete.

Japanese Regulations, 1904, Article 6. As enemy ships are further to be treated those which after the beginning of hostilities have been transferred from a hostile to a neutral flag, provided,

(a) either the captain is not convinced that the transfer would have been made had there been no outbreak of war, or, for instance, in case of inheritance, or building contract;

(8) or the transfer is effected while the ship was in passage or in a blockaded port:

(c) or a repurchase or return agreement is reserved;

(d) or the conditions are not fulfilled upon which the right to carry the flag depends, according to the legal requirements of the state concerned.

German Prize Rules, 1909, Article 12. 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


German Prize Rules, 1909, Article 15.

[ocr errors]

Treatment of crew of captured vessel.

If a ship is 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 112 and 113, French Naval Instructions, 1912, are identical with Article 56, Declaration of London.

Article 56, Declaration of London, is substantially identical with by divine law upon nations at war.' Contra.

“ The law of nations secures to neutrals unrestricted commerce with the belligerents, except in articles contraband of war, and trade with blockaded or besieged places. With these exceptions commerce is as free between neutrals and belligerents as if it were carried on solely between neutral nations; and it is difficult to conceive upon what principle an exception can be made and the neutral deprived of the rights secured in regard to the purchase of merchant vessels.

“It is true a regulation of France has been referred to in support of the doctrine avowed by the Imperial Government, but it is hardly necessary to observe that a municipal law of that country can only affect persons under its control, and can have no binding force beyond its territorial limits. The parties who made the con

[ocr errors]

tract for the sale and purchase of the ship St. Harlampy were not under the jurisdiction of the municipal law of France; on the contrary, they were both within the jurisdiction of the United States as well as the property which formed the subject of the transaction. The validity or invalidity of the transaction can be determined only by the local or international law. It was a contract authorized by the laws of this country and the law of nations; and it was supposed to be universally conceded that such a contract would be respected everywhere. Certainly no government except that under which the contract was made could interpose to destroy or vary the obligations which its provisions impose if not contrary to the law of nations. This is the doctrine of the European publicists, and it is especially sustained by Hautefeuille, whose authority will, I doubt not, be recognized by the Emperor's Government. He says, • It is impossible to recognize such a right as that claimed by the regulation of France. Commerce,' he adds, 'is free between the neutral and belligerent nations; this liberty is unlimited except [by] the two restrictions relative to contraband of war, and to places besieged, blockaded, or invested; it extends to all kinds of

provisions, merchandise, and movable objects without exception. Pacific nations can then, when they judge proper, purchase the merchant ships of one of the parties engaged in hostilities, without the other party having the right to complain, without, above all, that it should have power to censure, to annul these sales, to consider and treat as an enemy, a ship really neutral and regularly recognized by the neutral Government as belonging to its subjects. To declare null and without obligation a contract, it is indispensable that the legislator should have jurisdiction over the contracting parties. It is then necessary, in order that such a thing should take place, to suppose that the belligerent possesses the right of jurisdiction over neutral nations. That is impossible; the pretension of the belligerents is an abuse of force, an attempt against the independence of pacific nations, and consequently a violation of the duties imposed by divine law upon nations at war.'

“ However long may be the period during which this doctrine has formed part of the municipal code of France, it is manifestly not in harmony with her maritime policy, and it is confidently believed by this Government that France will not assert it not only against the practice of other nations but against the authority of her most enlightened writers on public law."

Mr. Maroy, Secretary of State, to Mr. Mason, minister to France, February

19, 1856. Moore's Digest, vol. VII, pp. 416, 417.

French position.

No. 12.-Earl Gramrille to consul Jedhurst.

FOREIGN OFFICE, Ipril 12, 1871. " Sir: I have had under my consideration in communication with the Law Advisers of the Crown, your despatches of the 25th of January and 1st of February reporting the circumstances connected with the capture of the barque Robert Rickmers by the officer commanding the French Naval Squadron; and I have now to state to


« AnteriorContinuar »