you that it has been the long established rule of the French Prize Courts not to allow the sale of an enemy's vessel to a neutral after the commencement of war to change its national character, so as to exempt it from capture on the high seas. The right of France to observe such a rule can not be impugned, and the French Courts have acted upon it, both when France was at war with England in 1801, and when she was the ally of England against Russia in 1854. Under these circumstances, although Great Britain may be content to observe a milder rule, as in the case of the Ariel, upon which Mr. Ronnie relied in advising you, the rule of the English Courts is not binding upon France; and I am of opinion that you were in error in protesting against the capture of the Robert Rickmers by the French Admiral. "I transmit for your information a copy of a letter which I have caused to be addressed to Mr. Rickmers, in reply to an application which he made to me on the subject." I am, etc., W. H. MEDHURST, Esq. Contra. 6 GRANVILLE. "The Consular Regulations stated that foreign-built vessels, purchased and wholly owned by citizens of the United States, whether purchased of belligerents or neutrals, during a war to which the United States are not a party, or in peace, of foreign owners, are entitled to the protection and flag of the United States as the property of American citizens.' The same instructions, however, require that the purchase should have been in good faith. The purpose of the authority to consuls in the matter obviously was to enable citizens of the United States residing abroad to buy foreign-built vessels for lawful trade. It was not intended to sanction a simulated purchase of such vessels, to be employed in hostile operations against countries with which the United States are at peace. Although, if the purchase in this instance was a bona fide transaction, it may be that a vessel so employed by the purchaser may not have technically violated the neutrality law of the United States, still her employment in the business in which those vessels engaged, while flying the flag of this country, was contrary to the spirit of that act, and at variance with the friendship then existing between the United States and the King of the Two Sicilies. In point of fact, the examination which has been made has given rise to a doubt whether the alleged purchase of the vessels referred to was a bona fide transaction for a valuable consideration, or was only simulated in order that the flag of the United States might be used to screen them from capture by the Neapolitan navy on their way to and from Sicily. It can not be doubtful how far the authority or the countenance of this Government should be employed in behalf of a claim if it should prove to be of this latter character." Mr. Fish, Secretary of State, to Mr. Marsh, minister to Italy, January 29, 1877. Moore's Digest, vol. VII, p. 418. "It is notorious that a maritime war scarcely ever occurs when at least one of the belligerents does not seek to protect more or less of its shipping by a neutral flag. In some instances this may honestly be done, but sales of vessels of belligerents to neutrals in apprehension of war, or when hostilities may have actually broken out, are always more or less liable to suspicion, and such transactions justify the strictest inquiry on the part of the belligerent who thereby may have been defrauded of his right to capture enemy's property. There are various circumstances tending to show the good faith, or the reverse, of such transfers. Prominent among these is the ability of the alleged purchaser to pay for his bargain. "If, prior to the sale, he was notoriously incapable of making any such purchase, or if his previous pursuits did not fit him for the use of the property, these and other obvious circumstances will tend to show a want of that good faith which alone can impart the rights of a neutral to a vessel so acquired. I am sorry to say that instances are not wanting where impecunious citizens of the United States have claimed to be the purchasers of foreign craft, and in some of them have actually had the hardihood to apply to this Department for its interposition, when the terms of their contract may not, in their opinion, have been complied with by the other party.' Mr. Evarts, Secretary of State, to Mr. Christiancy, minister to Peru, June 20, 1879, For, Rel. 1879, 884. "This Government is in receipt of information that ships carrying the Spanish flag have been, or are about to be, furnished with British or other neutral papers upon colorable transfers of ownership, made for the purpose of avoiding belligerent capture. It is desired that any such cases coming to your notice should receive your immediate attention, and that steps should be taken to prevent the colorable and void transfers of vessels under the Spanish flag to a neutral flag." Mr. Day, Secretary of State, to the Diplomatic and Consular Officers of the The "Bernon," 1 C. Rob., 102-7.-This was a case of the capture by the British of a ship claimed to have been purchased during war between Great Britain and France from a Frenchman by an American residing in France. The evidence respecting the sale appears to have consisted only of a formal bill of sale, a note in part payment and a receipt, all verified only by the affidavit of the claimed purchaser, who seems to have given false evidence on other points bearing upon the transaction. Held, that the ship should be condemned, and the court said that the purchase of an enemy's vessel in time of war is liable to great suspicion, which is increased when the asserted neutral purchaser appears to be a resident in the enemy's country at the time of sale. The "Juffrouw Anna," 1 C. Rob., 1240.-In this case, the vessel, which had ostensibly been sold by an enemy to a neutral, was condemned because of these circumstances: "a suspension of the claim for eight months, the false representation of the claimant, the direct employment of the vessel in the enemy's trade, and false papers." The "Argo," 1 C. Rob., 158.—This was a case of alleged transfer of ownership of a vessel from a Frenchman to a Prussian and it appeared that the claimed owner had sent a master, previously unknown. to him and without other directions than to go to the former owner, in France, who had supplied the master with money and directions for the voyage and turned over the vessel to him. The claimed owner seemed to have exercised no other authority in the matter and the master could produce no correspondence with him. The vessel was condemned. The "Two Brothers,” 1 C. Rob., 131.-This was the case of an ostensible purchase of a French vessel, by an American residing in France. The only documentary evidence produced was an unauthenticated bill of sale, no correspondence was produced between the claimed owner and the master, and the latter destroyed some papers "before capture." The vessel was condemned. 66 The Welvaart," 1 C. Rob., 127.—This was the case of a ship claimed to have been purchased by a neutral in France, then at war with England. The vessel was condemned because of the following circumstances: no bill of sale was produced; the vessel appeared to have been engaged, when captured, in the coasting trade of France, and the bills of lading gave a false destination and a false representation of prop erty. The Court said: "It is permitted to neutrals by this country to purchase ships in the enemy's country-a liberty which France has always denied. We certainly do allow it, but only to persons conducting themselves in a fair neutral manner, and not accessory to the purposes of the enemy." The "Endraught," 1 C. Rob., 21.-This was the case of a vessel, the ownership of which had ostensibly been transferred from an enemy to a neutral. The master said he believed the transfer to be collusive, and the vessel continued to trade with enemy ports, and with a crew signed in such ports and a master whom the court considered an enemy subject. The vessel was condemned. The Vigilantia," 1 C. Rob., 1-15.-This was a case of a capture by the British of a vessel claimed to have been purchased, during war between Great Britain and Holland, by a Prussian subject from a Hollander. The ship continued under the same master and in her former trade between Holland and Greenland and while certain papers found on board tended to show (but not satisfactorily) that the sale had been made, depositions made by the master, the mate. and another seaman set forth their opinions that the sale was a collusive one, to conceal the real ownership. Held that the vessel should be condemned, apparently on the ground that as she was engaged altogether in a Dutch traffic, she must be considered as a vessel of Holland. See also The Odin, 1 C. Rob., 248; The Susa, 2 C. Rob., 255. The Sechs Geschwistern," 4 C. Rob., 100.-This was a case of a ship claimed to have been purchased by a neutral of its former French owner. It appeared that the claimed purchaser had given back a mortgage on the vessel for a part of the purchase price, and had also bound himself to indemnify the alleged seller for any loss suffered by reason of violating the French requirement against the sale of a French vessel, without the condition of restitution after the war. Other circumstances appeared to indicate that the sale was not complete. The vessel was condemned, and the court said, that a sale of this nature, to be valid under the British rule must divest the enemy of all further interest in the vessel, and "that any thing tending to continue his interest, vitiates a contract of this description altogether." The "Omnibus," 6 C. Rob.-This vessel was transferred by a bill of sale in which it was stipulated that the former master should not be removed. The vessel continued under his management and in the same course of trade (to an enemy port) never once going to the port of her pretended owner. Held that the vessel should be condemned. The "Minerva," 6 C. Rob., 396.-This was the case of a Dutch man-of-war which was pursued by a British frigate into a neutral port and there claimed to have been purchased by a neutral individual, after which most of her armament was removed and she was sent on a trip, nominally to another neutral port, but under circumstances tending to show that she was destined to Holland. Held, that "the transaction of this purchase, taking it to have been made, has been conducted in a manner that cannot be considered as legal." The court said: "There have been cases of merchant vessels driven into ports out of which they could not escape, and there sold, in which, after much discussion, and some hesitation of opinion, the validity of the purchase has been sustained." Property in transit. The "Ann Green" 1 Gallison, 274.-In this case the court said that in time of war property cannot change its character in transitu. The "Island Belle" 13 Fed. Cases, p. 171.-The court said: "Assuming the truth to be that, as between Mr. Sawyer and the former owners, their proprietorship was divested irrevocably and that he was, at the time of capture the absolute owner of the vessel, as ownership is definable in a court of common law, she would, nevertheless, be liable, in a prize court, to condemnation. The rule of decision in some countries has been that, as to a vessel, no change of ownership during hostilities can be regarded in a prize court. In the United States, as in England, the strictness of this rule is not observed. But no change of property is recognised where the disposition and control of a vessel continue in the former agent of her former hostile proprietors: more especially when, as in this case, he is a person whose relations of residence are hostile." Vessels in transit. * * * .* ** The Baltica," 11 Moore, P. C. 145, 146.-The court said: "* in case of war it is settled that a mere transfer by documents which would be sufficient to bind the parties, is not sufficient to change the property as against captors, so long as the ship or goods remain in transitu.” The "Ernest Merck," 2 Spinks, pp. 87-93.—This vessel was alleged to have been sold, during the Crimean war, by her Russian owners, to subjects of Mecklenburg and was seized in a British port while on her way to a Russian port to engage in her former trade, in which she was to continue under the control of the agent of the claimed vendors. There appeared to be suspicious circumstances in connec tion with the sale and in connection with the alleged change of nationality of her master, from Russian to Mecklenburg. The vessel was condemned. The "Johanna Emilie." Spinks Prize Cases, 12.-In this case the court said: "With regard to the legality of the sale, assuming it to be bona fide, it is not denied that it is competent to neutrals to purchase the property of enemies to another country, whether consisting of ships or anything else: they have a perfect right to do so, and no belligerent right can override it." The court ordered further proof, and said: "I must be satisfied that the sum given for the vessel was an adequate amount under all the circumstances; I must be satisfied that that money was bona fide paid; I must have all the correspondence produced which passed between the master and the gentleman resident in Riga; and I must have evidence from the claimant himself of all the facts and circumstances within his knowledge. With less than that the court will not feel itself satisfied, and at liberty to restore the ship." Contra. In the case of The "Baltica," supra, the court said "The general rule is in no doubt. A neutral * * * after it [a war] has commenced, 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. But in case of war * it is settled that a mere transfer by documents which would be sufficient to bind the parties, is not sufficient to change the property as against captors, so long as the ship or goods remain in transitu." * * * * 11 Moore, P. C. 145, 146. Sale of ship of war. * The "Georgia," 7 Wall., 32-44.-The Georgia was a Confederate war-vessel, which, on May 2, 1864, entered the harbor of Liverpool, England, to avoid capture by the United States men-of-war. She was there dismantled and after public advertisement, sold for a valuable consideration to a British subject, who fitted her up as a merchant vessel, on her first voyage as which she was captured. Held that the vessel should be condemned on the ground that a bona fide purchase for a commercial purpose by a neutral, in his own home port, of a ship of war of a belligerent, that had fled to such port in order to escape from enemy vessels in pursuit, but which was bona fide dismantled prior to the sale and afterwards fitted up for the merchant service, does not pass a title above the right of capture by the other belligerent. * * * The court said: "The distinction between the purchase of vessels of war from the belligerent, in time of war, by neutrals in a neutral port, and of merchant vessels, is founded on reason and justice. The question in this case cannot arise under the French code, as according to that law, sales even of merchant vessels to a neutral, flagrento bello, are forbidden. And it is understood that the same rule prevails in Russia. Their law, in this respect, differs from the established English and American adjudications on this subject." |