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acter impressed upon them by the special nature of their documents. and are always held to the character with which they are so invested, to the exclusion of any claims of interest which persons resident in neutral countries may actually have in them.
Dana's Wheaton, p. 425. Exception.
Thus, ships are deemed to belong to the country under whose flag and pass they sail; at least, this circumstance is conclusive, as against the party who takes the benefit of them, although they do not bind other parties, as against him. So, a ship belonging to a neutral owner may acquire a hostile character from the trade in which she engages, or some particular act which she may do. Halleck, p. 187.
when a ship sails under a hostile flag, she has, by whomsoever owned, a hostile character.
Woolsey, p. 298. The “ Virginius
The l'irginius, carrying the flag of the United States, and supposed for sometime to be a regularly registered vessel of the United States, was captured by a Spanish war-steamer on the high sea, while endeavoring to reach the neutral waters of the island of Jamaica, having been foiled in the attempt to land a party of insurrectionists on the Cuban coast. The capture occurred in the night of October 31, 1873.
It was afterward proved that the Virginius was not legally a vessel of the United States. The real owners from the first were Spaniards. The oath of the American in whose name she was registered was false.
The following rules of international law are illustrated by the case of the l'irginius:
2. That a nation's right of jurisdiction on the high seas over vessels owned by its citizens or subjects, authorizes the detention and capture of a vessel found on the high seas, which upon reasonable ground is believed to be owned by its citizens or subjects, and to be engaged in violating its laws. The fag or register of another nation, if not properly belonging to a vessel, vloes not render its detention unlawful by the cruiser of a nation to which its owners belong. As, however, the register affords primâ facie evidence of nationality, the nation which gave the register by mistake must be treated with great care. detention on grounds proved to be erroneous must be atoned for, and the question of ownership would naturally be committed, where the evidence is not patent, to a third party.
Woolsey, pp. 366, 367, 370. Private vessels belonging to a state are those which, belonging to private owners, satisfy such conditions of nationality as may be imposed by the state laws with reference to ownership, to place of construction, the nationality of the captain, or the composition of the crew. In common with vessels of war the flag is the apparent sign of the nationality of the ship, but as a merchant vessel is not in the same close relation to the state as a public vessel, and its commander, unlike the commander of the latter, is not an agent of the state, recourse is not had to his affirmation in proof of its character, which must be shown by papers giving full information as to its identity and as to its right to carry the flag displayed by it, or, in other words, as to whether it has conformed to the laws of its staté.
Hall, p. 171. Exceptions.
A ship chartered by the enemy, or navigated by an enemy captain and crew would be treated as enemy property, even though she belonged to a neutral owner, and the same fate would befall a neutral ship habitually sailing under the enemy's flag or taking a pass or license from the enemy.
Lawrence, p. 382. If a ship sails under the enemy flag, the character which her owner or any of her partowners may have as individuals is immaterial. By accepting the flag they have placed theniselves under its protection: if that fails them she may be captured and will be condemned, and no share which a friend may have in her will be saved.
Westlake, vol. 2, pp. 169, 170. The general rule with regard to vessels is that their character is determined by their flag. Whatever may be the nationality of the owner of a vessel—whether he be a subject of a neutral State, or of either belligerent—she bears enemy character, if she be sailing under the enemy fag. For this reason, the vessel of an enemy owner which sails under a neutral flag does as little bear enemy character as the vessel of the subject of a neutral State sailing under the flag of another neutral State. But the flag is the deciding factor only when the vessel is legitimately sailing under it. Should it be found that a vessel sailing under the flag of a certain neutral State has, according to the Municipal Law of such State, no right to fly the flag she shows, the real character of the vessel must be determined in order to decide whether or no she bears enemy character. On the other hand, it makes no difference that the owner be the subject of a neutral nonlittoral State without a maritime flag and that the vessel is, therefore, compelled to fly the flag of a maritime State: if the flag the vessel flies be the enemy flag, she bears enemy character.
The general rule that the flag is the deciding factor has exceptions, and it is convenient to expound the matter according to the rules of the Declaration of London, although it is not yet ratified. The general rule is laid down by article 57 of the Declaration which enacts that, subject to the provisions respecting transfer to another flag, the character of a vessel is determined by the flag she is entitled to fly. Nevertheless, there are two exceptions to this rule :
(1) According to article 46 of the Declaration a neutral merchantman acquires enemy character by taking a direct part in the hostilities, by being in the exclusive employment of the enemy government, and by being at the time exclusively intended cither for the transport of troops or for the transmission of intelligence for the enemy. And it must be emphasised that the act by which a neutral merchantman acquires enemy character need not necessarily be committed after the
outbreak of war, for she can even before the outbreak of war, to such a degree identify herself with a foreign State that, with the outbreak of war against such State, enemy character devolves upon her ipso facto, unless she severs her connexion with the State concerned. This is, for instance, the case of a foreign merchantman which in time of peace has been hired by a State for the transport of troops or of war material, and is carrying out her contract in spite of the outbreak of war.
(2) According to article 63 of the Declaration a neutral merchantman acquires enemy character ipso facto by forcibly resisting the legitimate exercise of the right of visitation and capture on the part of a belligerent cruiser.
Oppenheim, vol. 2, pp. 112-114.
The Flag and Pass of a Neutral Government are not conclusive in favour of the Neutral character of a Vessel, which depends on her being the property of Neutral Subjects, as hereinafter defined.
Holland, p. 16.
If a Vessel appear to belong to a Neutral, and there is evidence that she was formerly a British or Allied Vessel, and was captured by the Enemy, and taken into an Enemy's Port for Adjudication, the Commander, will, in default of direct evidence to the contrary, presume that she has been regularly condemned in the Enemy's Court of Prize, and has thereby become the lawful property of the Neutral.
Holland, p. 17.
The nationality of a vessel is to be decided in accordance with the laws of the country under the flag of which she is sailing, or to the fleet of which she claims to belong.
Russian Regulations, 1895, Article 7. The character of a ship, whether enemy or neutral, will be determined by the flag which she has a right to carry.
Which flag a ship has the right to carry is proven, under the navigation laws of nearly all seafaring states by some official document (ships-register, nationality-certificate, Lettre de Mer, Acte de Francisation, Sea letter, Pass, Patent, License, etc.), which each merchant vessel must have on board.
When the nationality of a ship can not unquestionably be determined, especially if the document necessary to indicate the right to carry the flag of the nation concerned is missing, the ship is to be treated as hostile.
German Prize Rules, 1909, Article 11.
Paragraph 1, Section 27, French Vaval Instructions, 1912, is substantially identical with paragraph 1, Article 57, Declaration of London.
Article 57, Declaration of London, is substantially identical with section 9, Austro-Hungarian Manual, 1913.
The “Thea,” Russian and Japanese Prize Cases, vol. 1, p. 96.
," This was the case of a German vessel, leased for nine inonths to a Japanese Company. It appeared that by German Law, the vessel was entitled to fly the German flag.
Held by the Supreme Court that the nationality of the vessel was German.
Held further, that the fact that this vessel was engaged in the coasting trade of Japan did not cause her to lose her national character, according to the laws of Russia.
The “Juliette,” Russian and Japanese Prize ('ases, vol. 2, p. 103.This was the case of a small steamer not ocean-going and used only as a launch in a Japanese harbor. She was entitled to fly the Russian flag, and was owned by a merchant who had been established in Japan, but had withdrawn to Russian territory before the outbreak of the war, after which the vessel continued to be used by his manager in the Japanese port.
Held by the Japanese Prize Court that the steamer should be condemned as an enemy ship.
Nationality of stockholders in an enemy company not material.
The "Manchuria," Russian and Japanese Prize Cases, rol. 2, p. 52.—This was a case of a captured vessel owned by a Russian company and flying the Russian flag. Most of the stockholders in the company were neutrals.
Held by the Japanese Prize Court that the ship was an enemy ship and liable to condemnation.
The excepted case-Rule of War of 1756.
If a' neutral engages in a commerce which is exclusively confined to the subjects of another country, and which is interdicted to all others, so that it cannot be carried on at all in the name of a foreigner, such a commerce is considered so entirely national as to follow the situation of the country, and to impress its hostile character upon the property engaged in it. In the war of 1756, the French government allowed the Dutch, then neutral, to carry on the commerce between the mother country and her colonies, under special licenses granted for this particular purpose, other neutrals being excluded from the same trade. Vessels so employed were captured by British cruisers, and, together with their cargoes, condemned by the British prize courts. In the opinion of these courts the vessels were to be considered like transports in the enemy's service, and the property as so completely identified with the enemy's interests as to acquire a hostile character. The doctrine of these decisions has been frequently affirmed by the prize courts of England and America, and by the opinions of the most eminent textwriters of other countries. It has generally been designated by publicists as the "rule of the war of 1756."
Few now contest the correctness of the rule of 1756, that where neutrals, by a special indulgence, are permitted, in time of war, to engage in a commerce of the enemy which is purely national, and from which they are excluded in time of peace. necessarily impresses them with a hostile character.
Halleck, pp. 614. 645.
If a neutral's ship sails under an enemy's license to trade, she becomes hostile; for why should she have the advantages of a close connection with the enemy without the disadvantages?
Woolsey, p. 298. Certain kinds of trade, as the coasting and colonial, have been by the policy of most nations confined to national vessels in time of peace; and neutrals have been allowed to participate in them only
; when war rendered the usual mode of conveyance unsafe. It would appear, that to make such trade lawful, licenses were granted to particular vessels, and the belligerent captor could, with justice, take the ground, that the vessel under license had identified itself with the enemy.
The grounds on which the rule [of 1756 stood were, that the neutral interfered to save one of the belligerents from the state of distress to which the arms of his foe had reduced him, and thus identified himself with him. The neutral states have never allowed that the rule forms a part of the international code.
Here two questions may be asked, the one touching the lawfulness of coasting trade proper, the other touching the conveyance by nella trals of their goods, brought out of foreign ports, from one port of the enemy to another. *
Judge Story says (“Life and Letters," i., 285-289) that,
“ The British have unjustly estended the doctrine to cases where a neutral has traded between ports of the enemy with a cargo taken in at a neutral country. To open coasting trade to neutrals is a confession of inability to carry on that branch of trade on account of apprehensions from the enemy's force, and an invitation to neutrals to afford relief from the pressure of war. It is to adopt a new kind of vessels, on the ground that they cannot be captured. The belligerent surely has the right to say that his attempts to injure his enemy shall not be paralyzed in this manner. But he has no right to forbid the neutral to carry his own goods from hostile port to hostile port, when he might have done it before. Every right of innocent trade, then, enjoyed by the neutral in peace, should be allowed after the breaking out of the war; but new rights, given to them on account of the war, may be disregarded by the belligerent as injuring his interests.
Woolsey, pp. 339, 341. It was formerly the policy with all European governments to exclude foreign ships from trade with their colonies, and though this rule has been destroyed or modified, it is still unusual to permit strangers to engage in the coasting trade from one port to another of the home country.
These exclusions gave rise to the question whether if a belligerent throws open his close traile in time of war either to a favoured neutral or to all neutrals, his enemy has a right to deny to them the enjoyment of the proffered advantages. There can be no question that a special privilege,
exposes the neutral to be suspected of collusion with the belligerent whose favours he accepts; and that he cannot complain if the enemy of ! liis friend forms a harsh judgment of his conduct. The matter stands otherwise if a trade is opened to all neutrals indifferently.