Transfers under the Declaration of London.

some qualifications (m). In consequence of all these differences, an effort was made by the London Naval Conference, 1908-1909, to arrive at an agreement. As a result, some provisions on the subject were embodied in the Declaration of London (1909), the effect of which will be-if this part of the Declaration be eventually ratified-to modify to some extent the Anglo-American practice.

"The transfer of an enemy vessel to a neutral flag, effected before the outbreak of hostilities, is valid, unless it is proved that such transfer was made in order to evade the consequences to which an enemy vessel, as such, is exposed. There is, however, a presumption that the transfer is void, if the bill of sale is not on board a vessel which has lost her belligerent nationality less than sixty days before the outbreak of hostilities. This presumption may be rebutted.

There is an absolute presumption of the validity of a transfer effected more than thirty days before the outbreak of hostilities if it is unconditional, complete, and in conformity with the laws of the countries concerned, and if its effect is such that neither the control of the vessel nor the profits arising from her employment remain in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the outbreak of hostilities, and if the bill of sale is not on board, the capture of the vessel gives no right to damages" (n).

66

The transfer of an enemy vessel to a neutral flag, effected after the outbreak of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences to which an enemy vessel, as such, is exposed.

There is, however, an absolute presumption that a transfer is void

(1) If the transfer has been made during a voyage or in a blockaded port.

(2) If a right to repurchase or recover the vessel has been reserved to the vendor.

(3) If the requirements of the municipal law governing the right to fly the flag under which the vessel is sailing have not been fulfilled" (0).

During the Great War of 1914 striking instances of transfers Instances occurred. Thus, the German warships, the Goeben and the Great War. during the Breslau-flying from their pursuers-were ostensibly transferred to Turkey, which was a neutral at the time of the alleged transaction. Even if the transfer were genuine and the conveyance complete and unconditional (the circumstances clearly showed the contrary), the validity of the act none the less remained questionable on other grounds. Again, German merchantmen were proposed to be transferred to the United States flag; and in order that the last condition of Article 56 might be fulfilled, Congress attempted to pass a Bill for facilitating and validating transactions of this kind. But even if such legislative authority had been obtained, it could not necessarily have rendered valid the transfer of vessels made with a view to escaping from the consequences to which they were liable. In October, 1914, the Brindilla, an American oil-tank steamship, was brought before the Prize Court of Halifax (Nova Scotia), on the ground that she was transferred to the American flag by German owners contrary to Article 56 of the Declaration of London. Similarly, exception was taken to the transfer to the American Registry of the Dacia, a vessel of the Hamburg-American fleet. The British Government intimated that the sale was illegitimate, and the vessel was liable to seizure, if bound either for a German port or for Rotterdam, which is from a geographical point of view virtually a German port. Eventually, however, the vessel was captured by a French cruiser, and condemned at Brest.

and destruc

The object of belligerents is to enfeeble and overcome the enemy; The capture and among the means resorted to in naval war in order to attain tion of prizes. this object is the destruction or seizure of enemy vessels and the confiscation of enemy goods found on them. Subject to the exceptions that have been enumerated above, all public vessels of the enemy are liable to attack, seizure, or destruction by the belligerent warships either on the high seas or in the ports and waters of either belligerent, but not in neutral or neutralized ports and waters.

colours.

The question has sometimes arisen whether a belligerent vessel Use of false may assume false colours at any time, in order to facilitate an attack or capture or an escape. It is generally agreed that a warship may hoist a false flag or effect some other disguise in approaching an enemy vessel with the object of drawing it into action, or when pursuing an enemy ship, or when endeavouring to

Title to property captured in

war.

escape. On the other hand, before beginning the actual attack the true colours should be shown. In earlier times such disguise was common; and it has always been recognised as legitimate. Thus, Nelson, lying in wait off Barcelona for Spanish ships, displayed the French flag for some time in the hope of luring them out; and the legality of his procedure was not questioned. During the Great War, 1914, the German cruiser, the Emden, frequently assumed the enemy's flag, and even disguised herself by erecting a dummy funnel during her notable career of commercedestroying.

May merchantmen fly false colours in order to evade the enemy cruisers? During the war of 1914 the Lusitania, for example, assumed the United States flag, and thus eluded German warships. Whereupon Germany accused Great Britain of violating international law. It is true that under ordinary conditions a merchantman is not entitled to fly a neutral flag; but maritime custom allows it for the purpose of escaping from an enemy. The following statement on the subject was issued by the British Foreign. Office, February 7, 1914: "The use of the neutral flag is, with certain limitations, well established in practice as a 'ruse de guerre.' The only effect in the case of a merchantman of wearing a flag other than her national flag is to compel the enemy to follow the ordinary obligations of naval warfare, and to satisfy himself as to the nationality of the vessel and of the character of her cargo by examination before capturing her and taking her into a Prize Court for adjudication. The British Government has considered the use of British colours by a foreign vessel legitimate for the purpose of escaping capture. It is recognised in the Merchant Shipping Act, 1894, s. 69 (1), and in the instructions to British consuls, 1914. No breach of international law is thereby committed." In an American Note, February 12, to the British Government a distinction is drawn between the occasional use of neutral flags, and "the explicit sanction by a belligerent Government for its merchant ships generally to fly the flag of a neutral Power within certain portions of the high seas"; and it is pointed out that such "general misuse of a neutral's flag jeopardizes the vessels of a neutral visiting those waters."

The title to property lawfully taken in war may, upon general principles, be considered as immediately divested from the original owner, and transferred to the captor. This general principle is modified by the positive law of nations, in its application both to personal and real property. As to personal property or moveables, the title-under the former usage of nations-was, in general,

considered as lost to the former proprietor as soon as the enemy acquired a firm possession; which, as a general rule, was considered as taking place after the lapse of twenty-four hours, or after the booty was carried into a place of safety, infra præsidia, of the captor (p).

Property of the enemy taken on land is usually called booty, Booty and while that captured on the high seas, with the exception of armed prize. vessels, has acquired the name of prize (q). There is a very important distinction between them as regards the mode in which the captor acquires a title to the captured property. Booty belongs to the captor as soon as he has acquired a firm possession of it. No adjudication of any court is necessary to establish his title (r). On the other hand, a title to prize is acquired, as a general rule, only after the property has been condemned by a competent court (s). By the modern usage of nations neither the twenty-four hours' possession, nor the bringing the prize infra præsidia, is sufficient to change the property in the case of a maritime capture. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration (t). If condemnation follows capture, the effects of condemnation relate back to the date of capture (u). Abandonment of the prize or loss of possession puts an end to the effects resulting from the original capture; so that anyone who subsequently acquires possession is regarded as the sole captor (x). The enemy's armed vessels are not subject to the adjudication of a Prize Court. Ships and their cargoes are not invariably prize. Thus during the American Civil War a ship captured in a river by a detached naval force in boats was held not to be a maritime prize, or to be condemned as such (y).

The primary title to all property taken in war, whether on land Prize and or at sea, is in the sovereign (z). The law of England on this booty belong primarily to point has been thus stated by Lord Brougham:-"That prize is the sovereign. clearly and distinctly the property of the Crown, that the sovereign

(P) Grotius, De Jur. Bel. ac Pac. lib. iii. cap. 6, § 3; cap. 9, § 14. Klüber, Droit des Gens Moderne de l'Europe, $254. Vattel, Droit des Gens, liv. iii. ch. 13, § 196; ch. 14, $209. Heffter, Das Europäische Völkerrecht, § 136.

(4) Genoa and its Dependencies, 2 Dods. Ad. 446.

(r) Lamar v. Browne, 2 Otto, 195. (8) Opinions of Att.-Gen. (U. S.) vol. iii. p. 379. Field, International Code, § 896. Goss v. Withers, 2 Burrows, 693.

The Elsebe.

in this country, the executive Government in all countries in whom is vested the power of levying the forces of the State, and of making war and peace, is alone possessed of all property in prize, is a principle not to be disputed. It is equally incontestable that the Crown possesses this property pleno jure absolutely and wholly without control; that it may deal with it entirely at its pleasure, may keep it for its own use, may abandon or restore it to the enemy, or, finally, may distribute it in whole or in part among the persons instrumental in its capture, making that distribution. according to whatever scheme and under whatever regulations and conditions it sees fit. It is equally clear, and it follows from the two former propositions, that the title of a party claiming prize must needs in all cases be the act of the Crown, by which the royal pleasure to grant the prize shall have been signified to the subject; whether, even in that case, the same paramount and transcendent power of the Crown might not enure to the effect of preserving to His Majesty the right of modifying or altogether revoking the grant is a question which has never yet arisen, and which, when it does arise, will be found never to have been determined in the negative. But this, at all events, is clear, that when the Crown, by an act of grace and bounty, parts, for certain purposes, and subject to certain modifications, with the property in prize, it by that act plainly signifies its intention that the prize shall continue subject to the power of the Crown, and as it was before the act was done.

"This doctrine has been frequently recognised in cases where the question has arisen subsequently to the capture, and before condemnation; but the same principle was afterwards extended in the case of The Elsebe (a), in which, after final adjudication in the Court below, but pending an appeal, the Crown thought proper, for reasons of State and public safety, to restore the prize at the expense of the captors. In other words, it was then determined, and that too upon a solemn and most able argument, and by a judge the most learned and eminent of his time, the present Lord Stowell, that when the Crown saw fit to restore the capture, the captors, who had run the risk and suffered the loss, who had, moreover, borne the charge of bringing the prize into port, and the further costs of proceeding in the Admiralty to adjudication, and had even undergone additional expenses in contesting their claim upon appeal, were altogether without a remedy. . . . Says Lord Stowell . . . : 'It is admitted on the part of the captors. that their claim rests wholly on the Order of Council, the Pro

(a) (1804), 5 C. Rob. 173.