and the United States, and also in a modified form in Japan, Spain, Holland (d). We have already considered the doctrine of commercial domicile, as established by earlier British practice, constantly affirmed in the British and American Courts (e), and reaffirmed during the Great War by the British Prize Courts, and the numerous Acts, Proclamations, Orders, Regulations, and other forms of emergency legislation. To the considerations already advanced we may add the concise summary of the AngloAmerican doctrine, which was embodied in a Memorandum prepared for the use of the British delegates at the London Naval Conference, 1908-9:

"1. The principle adopted by the British Courts has been to treat the domicile of the owner as the dominant factor in deciding whether property captured in time of war is enemy property; but for this purpose the principle is not limited in all respects to the domicile of origin or residence, and is applied in the following

way:

"(a) A person domiciled in a neutral country, but having a house of trade in an enemy country is deemed to acquire a commercial domicile in the enemy country in respect of transactions originating there; but the other property of such owner is not affected thereby.

"(b) A commercial domicile not being the domicile of nationality is terminated when actual steps are taken boná

fide to abandon such domicile for a different one sine animo revertendi.

"2. This principle applies equally to the cases of an individual. a partnership, or a corporation, residence in the two latter cases being understood to mean the place whence the business is controlled.

"3. In case of a partnership where one or more of the partners is domiciled in enemy territory, property not liable to be seized as enemy property on other grounds is presumed to be divided proportionally between the partners, and the share attributed to a partner domiciled in enemy territory is deemed to be enemy property" (ee).

Obviously these doctrines are not affected by Article 58 of the Declaration of London. They lay down the principle of hostile association as the determining factor of enemy character. The Article simply lays down that the enemy character of the goods

(d) Ibid.

(e) See supra, pp. 443 seq.

(ee) Parl. Papers, Miscell. No. 4 (1909), p. 11.

Presumption

of enemy character.

Transfers made in transitu.

depends on the enemy character of the owner; and it does not say on what the enemy character of the owner is to depend.

As no agreement was reached at the London Naval Conference with regard to one definite criterion of the enemy character of goods, an effort was made to effect a compromise between the conflicting principles as indicated above. Thus it was proposed, on the one hand, that the character of goods found on board an enemy vessel should be determined by the owner's nationality, or, in case of lack of or double nationality, by his domicile; and, on the other, that the character of goods belonging to a trading corporation should be determined by the character of the territory in which the headquarters is situated. This proposal, however, was not successful.

"In the absence of proof of the neutral character of goods found on board an enemy vessel, they are presumed to be enemy goods" (f).

Here we have nothing more than an enunciation of the old rule (g).

"The enemy character of goods on board an enemy vessel continues until they reach their destination, notwithstanding any transfer effected after the outbreak of hostilities while the goods are being forwarded.

If, however, prior to the capture, a former neutral owner exercises, on the bankruptcy of an existing enemy owner, a recognised legal right to recover the goods, they regain their neutral character" (h).

It is often a matter of difficulty for a Prize Court to determine to whom property captured at sea actually belongs. The general rule is that if goods are shipped on account and at the risk of the consignee, they are considered his goods during the voyage. In such a case delivery of the goods to the master is a delivery to the consignee (i). In time of peace the parties may of course agree to any terms they please, as to whose risk the property should be at during the voyage, but in time of war, or in contemplation of war, the rule of Prize Courts is, 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

(f) Declar. of London (1909),

Art. 59.

(g) Cf. The Josephine (1801), 4 C. Rob. 25; The Frances (1814), 8 Cranch, 354; The Carlos F. Roses (1899), 177 U. S. 655.

(h) Declar. of London (1909),

Art. 60.

(i) The Packet de Bilboa (1799), 2 C. Rob. 133. According to the French practice, the shipper is allowed to take such risk; cf. Les Trois Frères, Pistoye et Duverdy, 357; Snow, Cases, p. 348.

claims on

from capture (k). Unless such a rule were adopted, all property passing between a neutral and a belligerent would be colourably assigned to the neutral, and the belligerent right of capture would be comparatively worthless. It is therefore the duty of a Prize Court to ascertain in whom the property was vested at the outset of the voyage, and in this inquiry all equitable liens on enemy's property are disregarded, and all revelations of risk to neutral consignors are held to be fraudulent (1). During the Great War, 1914, the Prize Court heard the case of The Marie Glaeser, involving British and neutral claims on a captured vessel. There Neutral were three kinds of claimants-shareholders, mortgagees, and captured persons claiming for brokerage and necessaries. The President, vessels. in the course of his judgment, said that under the old practice the flag determined the fate of the whole ship in case of capture; a shareholder was bound by the character of the ship. Maritime liens, too, were not recognised by the Prize Court. But to British merchants who had before the war supplied necessaries to a captured vessel, the Crown of its bounty might make grants out of the proceeds of the sale of prizes, according to the merits of each particular case. Claims under mortgages held by British or neutral subjects are untenable (m). A mortgage is no more valid against captors than is a bottomry bond or other maritime lien. The American Courts have held that neutral mortgages on enemy vessels are to be treated in prize proceedings only as liens, liable to be overridden by the superior claims of the captors (n). Decisions to the same effect have been pronounced in the French (0) and in the Japanese Prize Courts (p). Both the captor and the Court have regard only to the outward character of the vessel, and must disregard rights depending on private agreement. Therefore, both in principle and in practice the claims of mortgagees of enemy ships cannot prevail as against the rights of the captors (q). On the other hand, enemy's liens on neutral property are equally disregarded, being held not to confer such an enemy character on the ship or goods as to subject them to confiscation (r). If, however, the shipment, as well as the contract, laying the risk on the neutral consignor, were both made in time of peace and are proved

(k) The Francis (1813), I Gallison, 445; The Vrow Margaretha (1799), 1 C. Rob. 336.

(1) The Josephine (1801), 4 C. Rob. 75; The Tobago (1804), 5 C. Rob. 218; The Marianna (1805), 6 C. Rob. 24; The Ida, 1 Spinks, 26.

(m) Cf. The Aina (1854), Spinks, 8. (n) The Hampton (1866), 5 Wall. 372; The Battle, 6 Wall. 498; The

Carlos F. Roses (1899), 177 U. S. 655.

(0) Cf. Le Turner (1870), Barboux, Jurisprudence du Conseil des Prises, 1870-1, p. 76.

(p) The Nigretia (1905), Takahashi, p. 552; The Russia (1904), ibid. p. 557. (q) The Marie Glaeser (1914), 31 T. L. R. 8.

(r) The Ariel (1857), 11 Moo. P. C. 119.

Sale of ships by belligerents to neutrals.

to have been bonâ fide, and not in contemplation of war, the ownership which was in the neutral consignor at the beginning of the voyage remains in him until its termination, and the goods will not be condemned (s). During the Great War, 1914, the Prize Court heard a case (The Miramichi) in which goods were shipped by a neutral seller to an enemy buyer on a British vessel, before the outbreak of the war, though not in anticipation of it. The goods were seized on their way to the enemy, and two days later the buyers refused to accept the documents, on which money had been advanced by neutral persons. It was held that where goods are contracted to be sold and are shipped before the war and not in anticipation of it, and are seized in transit to the enemy during hostilities, they are not liable to condemnation, unless under the contract the property in the goods has by that time passed to the enemy. The determining criterion of ownership is the intention of the parties, and not the incidence of risk. As the ownership of the goods in question remained at the time of seizure in the neutral seller, they were ordered to be released (t). Nor are goods condemned when shipped by an enemy during war, if it is proved beyond all doubt that they were shipped absolutely at the risk of a neutral consignee. Such transactions are, however, carefully scrutinized in a Prize Court (u). The only case in which the right of stoppage in transitu can be exercised during war is in the expectation, confirmed by the event, of the insolvency of the consignee (x).

The transfer of ships from belligerents to neutrals during war is always looked upon very suspiciously, and clear proof of bonɑ fides is required to save the ship from condemnation (y). Thus, a British ship alleged to have been sold to a neutral after hostilities had broken out between England and Holland was captured while trading between Guernsey and Amsterdam under the command of her former master, who had also been the owner. She was condemned as prize for trading with the enemy, the transfer being deemed colourable and void (z). But if the sale of a ship by a belligerent to a neutral be absolute and bonâ fide, and attested by appropriate evidence, it is then permitted, either during war or in contemplation of it, and whether she is lying in an enemy or a

(8) The Atlas (1801), 3 C. Rob. 299.
(t) The Miramichi (1914), 31

T. L. R. 72.

(u) The Aurora (1802), 4 C. Rob. 219.

(x) The Constantia (1807), 6 C.

Rob. 324; Oppenheim v. Russel, 3 Bo3. & Pul. 484.

(y) The Ariel (1857), 11 Moo. P. C. 119.

(2) The Omnibus (1805), 6 C. Rob. 71; The Odin (1799), 1 C. Rob. 252.

neutral port (a). All interest of the vendor in the ship must be completely divested, and there must be no agreement to reconvey her on the conclusion of the war; but the mere non-payment of part of the price is not conclusive evidence of itself that the vendor's interest is not entirely transferred (b). A transfer of a vessel effected whilst she was in a blockaded port (c), or whilst she was in transitu unless the purchaser had taken possession of her before capture (d), is regarded as invalid. It is for the claimant to prove that the transfer is genuine, and any circumstance of suspicion must be satisfactorily accounted for by him (e). Vessels of war lying in neutral ports cannot be sold by their belligerent owners at any time during the war, even after the vessels had been dismantled. If so sold, a ship of war, even though purchased in good faith, and fitted up as a merchant vessel, remains liable to capture by the other belligerent as long as the war lasts (f). And the same rule would no doubt apply to vessels that had been converted into warships, even though afterwards reconverted. Capture as prize overrides all previous liens (g), and it gives the captor all the owner's rights when the voyage began (h). Even a boná fide mortgagee, a subject of the captor's country, is not entitled to have his mortgage paid out of the proceeds of the sale of the prize (i).

These principles summarize the long-established British practice (k), with which the American practice almost entirely agrees (1). In continental countries, however, certain modifications of these rules appear. Thus, in France and Russia the transfer of enemy vessels to neutrals is held to be invalid unless it be unconditional and effected before the outbreak of war. In Holland all bona fide transfers are recognised, on condition that they are not made in a blockaded port. Spain and other countries follow generally the Anglo-American doctrines, subject, however, to

(a) The Baltica (1857), 11 Moo. P. C. 141; The Benedict, Spinks, 314; The Rapid (1814), Spinks, 80.

(b) The Ariel (1857), 11 Moo. P. C. 129; The Sechs Geschwistern, 4 C. Rob. 100.

(c) The General Hamilton (1805), 6 C. Rob. 62.

(d) Cf. The Baltica (1857), 11 Moo. P. C. 141.

(e) Batten v. The Queen, 11 Moo. P. C. 271; The Soglasie, Spinks, 104. (f) The Georgia, 7 Wallace, 32; cf. The Minerva, 6 C. Rob. 396.

(g) The Battle, 6 Wallace, 498; The

(i) The Hampton, 5 Wallace, 372; Le Turner (1870), Barboux, Jurisp. du Conseil des Prises, 1870-71, p. 75; The Aina (1854), 1 Spinks, 19.

(k) Cf. the Memorandum prepared for the use of the British Delegates at the London Naval Conference; Parl. Papers, Miscell. (1909), No. 4.

(1) Cf. The Sally Magee, 3 Wall. 451; The Benito Estenger (1899), 173 U. S. 568.