ing to non-enemy co-proprietors. The courts of other countries, notably those of Austria-Hungary and Italy, confiscated nonenemy interests in ships flying enemy flags but released enemy interests in vessels legally flying neutral flags.1 French cases involving precisely the status of non-enemy interests in ships flying enemy flags and of enemy interests in ships flying nonenemy flags, seem to be lacking so that it is not certain what the French Prize Council would have decided had such cases been presented to it.2

Compare the case of the Gorizia (Fauchille et Basdevant, Jurispr. Ital., 429), where the Prize Commission confiscated a ship flying an enemy flag but which was owned by persons of Italian nationality "subject to the dominion of the Austro-Hungarian Empire." See also the case of the Eugenia (ibid., 471) and the Spurma (ibid., 402).

Compare Verzijl, op. cit., p. 401.

CHAPTER X

NATIONALITY OF SHIPS (CONTINUED). TRANSFERS

OF FLAG

I

RULES GOVERNING TRANSFERS

Sec. 302. Preliminary Observations. As was pointed out in the preceding chapter, a captured ship may be flying a nonenemy flag which it may have a right to fly according to the municipal law of the flag State and yet belligerents may refuse to recognize the right for the reason that the ship has been transferred from an enemy or prospective enemy register to a nonenemy (national or neutral) register contrary to the rules of international law governing the transfers of flag. Whenever war breaks out or has become imminent, the owners of vessels which are or would be exposed to capture by reason of their enemy character are always under a temptation to transfer them by sale, or otherwise, to a non-enemy flag in order to avoid the risk of having them captured and confiscated by the enemy.1

Sec. 303. Provisions of the Declaration of London. In the preceding chapter attention was called to the fact that while Article 57 of the Declaration of London makes the flag which a vessel is entitled to fly the test of its enemy or neutral character the Article expressly makes this rule subject to the pro

1It may be observed that a change in the nationality of a ship may also result without there being a transfer of ownership. Thus after the outbreak of the World War various American-owned vessels registered under the German flag were transferred to American registry. Among them were the Brindilla and the Platuria, both of which were captured by British cruisers in October, 1915. The transfers here involved a change of flag but not of ownership. For this reason, apparently, the British government released them without submitting to the Prize Court the question of the validity of the transfers. The nationality of a ship may also be changed in consequence of a change in the nationality of the owner resulting from his naturalization or the cession of territory or the formation of a new State. See, for example, the case of the Mercur (27 Rev. Gén., 1920, Jurispr. 69), a vessel belonging to a German subject of Schleswig, which territory, in consequence of the plebiscite under the treaty of Versailles, was returned to Denmark.

visions of the Declaration respecting transfers of flag. The flag is not therefore conclusive if it is a flag to which the ship has been transferred in violation of these latter provisions, which are to be found in Articles 55 and 56. They make a distinction between transfers of an enemy vessel to a neutral flag after the outbreak of war and those made before the declaration of war. The general rule laid down is that transfers made after the outbreak of war are void unless it is proved (the burden of proof being on the claimant if the capture is the subject of prize adjudication) that the transfer was not made in order to avoid the consequences of capture to which it would be exposed as an enemy vessel. This is, however, only a presumption, but it is absolute and therefore irrebuttable if the transfer has been made during a voyage or in a blockaded port, or if the vendor has reserved the right to repurchase the vessel or if the requirements of the municipal law of the State to whose registry it has been transferred have not been complied with. It would seem to follow therefore that if the transfer has been made in a neutral port where the vessel has taken refuge and the sale is unconditional and in conformity with the registration laws of the country to whose registry it has been transferred, the presumption that the transfer was made to avoid the consequences of capture is not absolute but may be rebutted by proof to the contrary. In other words it was not the intention of Article 56 to render illegal all transfers made after the outbreak of war, but merely to create a presumption of illegality which might in some cases be rebutted and in others not.

On the other hand, if the transfer is made before the outbreak of war the general principle (Article 55) is that the transfer is valid unless it is proved that the transfer was made to avoid. the consequences of capture to which the vessel would be exposed in the event of war. Apparently the burden of proof here would be upon the captor and not upon the claimant, as is the case of transfers made after the outbreak of war. Nevertheless, Article 55 lays down a presumption that the transfer is invalid if the bill of sale is not on board a vessel which has lost her belligerent nationality less than 60 days before the outbreak of war. But this presumption may be rebutted by proof to the contrary, which must be produced by the claimant. The presumption of validity is, however, absolute in case the transfer has been made more than 30 days before the outbreak of the war provided the sale is unconditional, complete and "in conformity

with the laws of the countries concerned" and the vendor retains no control or interest in the profits of the vessel. It will be seen that the general presumption of the law-in some cases it is absolute-is in favor of the validity of transfers made before the outbreak of war but against those made thereafter, but in the former case there are particular circumstances under which the transfer is presumed to be void and in the latter particular circumstances under which it is presumed to be valid. In both cases the presumption is rebuttable under certain circumstances and irrebuttable under others.1

The purpose and effect of Articles 55 and 56 was to introduce international uniform rules governing transfers of flag in the place of the varying and conflicting rules and practices of States, and Article 56 especially represents, as Lord Sumner said in the case of the Edna, "an endeavor to find an acceptable compromise between English and Continental views on the point."2 In this respect it is like various other provisions of the Declaration.

It may be observed that the Declaration of London deals only with transfers to neutral flags and not with transfers to belligerent or national flags. Likewise, its rules apply only to the transfer of merchant vessels and not to the transfer of public ships, transfers of the latter to neutral flags not being recognized as valid; nor do they deal with transfers of goods from one flag to another.

Sec. 304. Status of Articles 55 and 56 During the World War. None of the modifications with which the Declaration was put into effect after the outbreak of the war touched Articles 55 and 56 dealing with transfers of flag. In fact its rules relative to transfers of flag had already been, or were subsequently, incorporated in the prize codes or naval regulations of all the maritime powers except Great Britain, which promulgated no such code, and with no modifications at all or only slight

'For analyses of these presumptions see Bentwich, The Declaration of London, p. 106, and Wilson, On International Law, p. 409.

'As to the views and practices of the various maritime powers in respect to transfers of flag, see the memoranda submitted by them to the International Naval Conference at London in 1908-09, Proceedings, House of Commons Sessional Papers, Misc. No. 4 (1909). See also my International Law and the World War, Vol. I, pp. 191 ff., and my article entitled The Transfer of Merchant Vessels from Belligerent to Neutral Flags, Amer. Law Review, May-June, 1915, especially pp. 333 ff.

See as to this Sec. 315, infra.

'Later Germany, in consequence of Great Britain's refusal to observe the Declaration as a whole, altered the rules relative to transfers of flag by the substitution of a rule recognizing the validity of transfers of British vessels to the American flag only in case such vessels were employed in direct trade with Germany.

changes.1 But the right to transfer enemy-owned vessels to neutral flags was of course affected by the abrogation in October 1915 of Article 57 which made the flag the test of the national character of vessels. Thereafter transfers of enemy owned vessels to neutrals were not recognized since the neutral flag was no longer a protection.

Were the rules embodied in Articles 55 and 56 of the Declaration merely declaratory of the customary law of nations relative to transfers of flag? The preamble of the Declaration stated that the signatory powers were in agreement that the rules contained in the Declaration "corresponded in substance with the generally recognized principles of international law."

In the case of the Tommi and Rotherstand 2 Sir Samuel Evans adverting to the relation between Articles 55-56 and British prize jurisprudence observed that "apart from the Declaration of London, and whatever alteration they may make in the law of nations, these artificial periods of time which have been agreed upon by the various nations—namely, thirty and sixty days cannot be found in any decision of any particular Prize Court belonging to any country. They are conventional periods"

But in the case of the Edna Lord Sterndale referring to Article 56, which he said aimed to prevent only colorable transfers, stated that he did not think the article was intended "to interfere with the general principle of law as laid down by the Baltica at all, except so far as it might throw the onus of proving the bona fides of the transaction upon the purchaser."

In the case of the Dacia 5 the claimant contended inter alia that Article 56 constituted a derogation from the rigor of the ancient French règlement of July 26, 1778, which was, apart from the Declaration of London, the existing French rule and the Prize Council admitted that Article 56 was an atténuation

1 German Prize Ordinance Secs. 12-13; Austrian Dienst règlement für die K. u. K. Kriegsmarine, Arts. 10-11; Chinese regulations governing capture at sea, Art. 3, paragraph 4 (not identical with the rules of the Declaration); U. S. Instructions for the Navy, 1917, Secs. 57-58; French Instructions of 1912, Secs. 108-114 (reproduced in the revision of 1916); Greek regulations of 1912, Art. 1; Italian Rules Relative to the Exercise of the Right of Capture, March 25, 1917, Arts. 17-19 (with some modifications); Japanese Regulations, 1914, Arts. 22-23; Roumanian Code, Arts. 61-70 (some modifications); Russian Regulations, 1895, Art. 7, which were put into effect during the World War.