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The " Benito Estenger," 176 V. S., 568.—This was the case of a vessel captured by the United States during the war with Spain, and it appeared that after the outbreak of the war the vessel was transferred from a Spanish subject to a British subject. No money appears to have been paid in consideration of the transfer, but it was claimed that credit had been given for the purchase price. The Spanish master and crew remained in charge; the seller was on board as super-cargo, and it was admitted that he retained a beneficial interest.
The court stated that transfers of yessels flagrante bello were originally held invalid," but that the rule had been modified.” The court referred, as giving the correct rule of law, to the passage from Hall, quoted above under this heading, held that the burden of proof in the case under consideration was upon the claimant, that he had not sustained the burden and that the condemnation was proper.
FLAG VESSEL ENTITLED TO FLY DETERMINES HER NEUTRAL OR ENEMY (HARACTER
Subject to the provisions respecting transfer to another flag,
the neutral or enemy character of a vessel is determined by
the flag which she is entitled to fly. The case where a neutral vessel is engaged in a trade which
is closed in time of peace, remains outside the scope of, and is in no wise affected by, this rule.—Declaration of London, Irticle 57.
The rule in the declaration of Paris that “ the neutral flag covers enemy goods, with the exception of contraband of war,” corresponds so closely with the advance of civilization and has taken so firm a hold on the public mind that it is impossible, in the face of so extensive an application, to avoid seeing in that rule the embodiment of a principle of the common law of nations which can no longer be disputed. The determination of the neutral or enemy character of merchant vessels accordingly decides not only the question of the validity of their capture, but also the fate of the noncontraband goods on board. A similar general observation may be made with reference to the neutral or enemy character of goods. No one thinks of contesting to-day the principle according to which * neutral goods, with the exception of contraband of war, are not liable to capture on board an enemy ship.” It is, therefore, only in respect of goods found on board an enemy ship that the question whether they are neutral or enemy property arises.
The determination of what constitutes neutral or enemy character thus appears as a development of the two principles laid down in 1856, or rather as a means of securing their just application in practice.
The advantage of deducing from the practices of different countries some clear and simple rules on this subject may be said to need no demonstration. The uncertainty as to the risk of capture, if it does not put an end to trade, is at least the inost serious of hindrances to its continuance. A trader ought to know the risks which he runs in putting his goods on board this or that ship, while the underwriter, if he does not know the extent of those risks, is obliged to charge war premiums, which are often either excessive or else inadequate.
The rules which form this chapter are, unfortunately, incomplete. Certain important points had to be laid aside, as has been already observed in the introductory explanations and as will be further explained below.
The principle, therefore, is that the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly. It is a simple rule which appears satisfactorily to meet the special case of ships, as distinguished from that of other movable property, and notably of the cargo.
From more than one point of view ships may be said to possess an individuality: notably, they have a nationality,
a national character. This attribute of nationality finds visible expression in the right to fly a flag. It has the effect of placing ships under the protection and control of the State to which they belong. It makes them amenable to the sovereignty and to the laws of that State and liable to requisition should the occasion arise. Here is the surest test of whether a vessel is really a unit in the merchant marine of a country, and here, therefore, the best test by which to decide whether her character is neutral or enemy. It is, moreover, preferable to rely exclusively upon this test and to discard all considerations connected with the personal status of the owner.
The text makes use of the words “the flag which the vessel is entitled to fly"; that expression means, of course, the flag under which, whether she is actually flying it or not, the vessel is entitled to sail according to the municipal laws which govern that right.
Article 57 safeguards the provisions respecting transfer to another flag, as to which it is sufficient to refer to articles 55 and 56; a vessel may very well have the right to fly a neutral flag, as far as the law of the country to which she claims to belong is concerned, but may be treated as an enemy vessel by a belligerent, because the transfer in virtue of which she has hoisted the neutral flag is annulled by article 55 or article 56.
Lastly, the question was raised whether a l'essel loses her neutral character when she is engaged in a trade which the enemy, prior to the war, reserved exclusively for his national vessels; but as has been observed above in connection with the subject of unneutral service, no agreement was reached, and the question remains an open one, as the second paragraph of article 57 is careful to explain.
Report of committee which drafted Declaration of London. All vessels sailing under the flag of the United States, and furnished with such papers as their laws require, shall be regarded in Italy as vessels of the United States, and, reciprocally, all vessels sailing under the flag of Italy, and furnished with the papers which the laws of Italy require, shall be regarded in the United States as Italian vessels.
Treaty of Commerce and Navigation concluded between the United States
and Italy, February 26, 1871, Article XVII. Merchant vessels navigating under the flag of the United States as that of Japan and carrying the papers required by their national laws to prove their nationality shall in Japan and in the United States be deemed to be vessels of the United States or of Japan, respectively.
Treaty of Commerce and Navigation concluded between the United States
and Japan, February 21, 1911, Article X. Acquisition of the right to the flag of a State.
Article 1. The ship should be inscribed on the register kept for this purpose by authorized officials, in conformity with the laws of the
Artile 2. To be inscribed on this register, more than half the ship must be the property:
1. Of nationals; or 2. Of a company under a collective name or a commandite, of which more than half the members personally responsible are nationals; or
3. Of a national stock company (joint-stock or commandite), twothirds at least of the directors of which are nationals; the same rule applies to associations and other legal persons owning ships.
Article 3. The concern (whether an individual ship-owner, a company or corporation) must have its head-quarters in the State whose flag the ship must fly and in which it must be registered.
Article 4. Each State shall determine the conditions to be fulfilled in order to be appointed captain or first officer of a merchant ship: but the nationality of the captain or that of the members of the crew shall not be a condition of acquiring or forfeiting the right to the national flag Forfeiture of the right to the flag of a State.
Article 5. Failure to comply with one of the conditions under which this right may be acquired does not entail forfeiture of this right until after the ship has been erased from the register. Such erasure is made at the request of the owners or of the management of the ship. or by the authority intrusted with the register, except as provided for by Articles 7 and 8 below.
Article 6. The owner or the management which shall have neg. lected to send the necessary notification to this authority shall be liable to a fine.
Article 7. If the change in ownership of a share in the ship causes the forfeiture of the right to the flag, the owners shall be granted a suitable length of time, in order to take the measures necessary for the ship to retain its former nationality, or to acquire another.
Article 8. If, after the expiration of this period, those interested have not taken the measures necessary to attain one of these two ends the ship shall be erased from the register, and the person responsible for the loss of nationality or his heirs, if the loss of nationality is due to his death, shall be liable to fine. Temporary acquisition of the right to the flag.
Article 9. Temporary acquisition of the right to a flag occurs in two cases :
1. When a ship, built abroad, cannot definitely acquire the right to a flag until after its arrival in one of the ports of the owner's State:
2. When a ship changes owners while in a foreign port.
Article 10. In each of these two cases, the consuls and consular agents residing in the country in which the ship is, shall be charged with the giving of a provisional certificate, if the essential conditions imposed by law for acquiring the nationality of the ship be fulfilled; this certificate shall be valid only during a period to be determined by law.
Institute, 1996, pp. 135–137. The enemy or neutral character of a vessel is determined by the flag which it is entitled to fly.
Institute, 1913, p. 186. Exception.
Sailing under the flag and pass of an enemy is another mode by which a hostile character may be a flixed to property; for if a neutral vessel enjoys the privileges of a foreign character, she must espect,
at the same time, to be subject to the inconveniences attaching to that character. This rule is necessary to prevent the fraudulent mask of enemy's property. But a distinction is made, in the English cases, between the ship and the cargo. Some countries have gone so far as to make the flag and pass of the ship conclusive on the cargo also; but the English courts have never carried the principle to that extent, as to cargoes laden before the war. The English rule is, to hold the ship bound by the character imposed upon it by the authority of the government from which all the documents issue. But goods which have no such dependence upon the authority of the state may be differently considered; and if the cargo be laden in time of peace, though documented as foreign property in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo. The doctrine of the federal courts in this country has been very strict on this point, and it has been frequently decided that sailing under the license and passport of protection of the enemy, in furtherance of his views and interests, was, without regard to the object of the voyage or the port of destination, such an act of illegality as subjected both ship and cargo to confiscation as prize of war.
Kent, vol. 1, pp. 94, 95. Exception.
This subject of flags and papers needs elucidation. Where a State has authority to inquire into the national character of a merchant l'essel apparently of another State, for any purpose, whether of war or peace, it cannot be bound by the flags or papers used. It can go behind the ostensible nationality indicated by these, and ascertain the actual nationality, which depends on the domicil of the owner and other facts. The State may, if it chooses, hold the ship concluded by the fact of having used the flags and papers she has knowingly carried, if that result is favorable to the interests of the State. This is usually done in war, and may be done in peace. It is simply the application to the inquiry of a rule of conclusive presumption or estoppel against a party. Whether it shall be enforced depends on State policy. The vessel cannot claim the application of the rule in its own favor. So, if it shall appear that the flags and papers of a certain nation are used by the permission of that nation in the particular case, giving to the vessel a spurious national character, that permission does not affect the right of the State making the inquiry, as between itself and the owner of the vessel, to go beyond the flags and papers and ascertain the actual nationality, and treat the vessel accordingly. If the nation which has granted the permission should interpose, the question is a political one between the two nations.
Dana's Wheaton, Note 163. So also, in general, and unless under special circumstances, the character of ships depends on the national character of the owner, as ascertained by his domicil; but if a vessel is navigating under the flag and pass of a foreign country, she is to be considered as bearing the national character of the country under whose flag she sails: she makes a part of its navigation, and is in every respect liable to be considered as a vessel of the country; for ships have a peculiar char