(b) When the neutral vessel itself, or its convoy, resists visit and search, the right of the belligerent is thwarted, and the vessel is liable to capture and condemnation. Simple attempt to escape by means of flight is not regarded as resistance, though the vessel may be brought to by the use of force. Refusal to admit the boarding officer, or refusal of the master to accompany the boarding officer, or to open at his request locked boxes, etc., is regarded as constituting resistance. The British decisions also regard resistance by the convoying vessel as resistance by the convoyed vessel, which makes the convoyed vessel liable to capture.14

(c) There has been a difference of opinion in regard to the treatment of a neutral merchant vessel under enemy convoy. It seems reasonable that this should be regarded as an attempt to avoid search by force, and may be construed as resistance. Writers in general, except Wheaton, so regard it, and consider the vessel thus escorted as liable to capture.15

A belligerent vessel, overhauling a neutral merchant vessel guilty of (d) breach of blockade, (e) carriage of contraband, or (f) unneutral service, should send the vessel to a prize court.

14 The Maria, 1 C. Rob. 340; Declaration of London, 1909, art. 63, Appendix, p. 584.

15 "The mere circumstance of sailing in company with a belligerent convoy had no such effect [defeat of the belligerent right of search]. Being an enemy, the belligerent had a right to resist. The masters of the vessels under his convoy could not be involved in the consequences of that resistance, because they were neutral, and had not actually participated in the resistance. They could no more be involved in the consequences of a resistance by the belligerent, which is his own lawful act, than is the neutral shipper of goods on board a belligerent vessel for the resistance of the master of that vessel, or the owner of neutral goods found in a belligerent fortress for the consequences of its resistance." Wheaton, Int. Law, § 533.

TRANSFER OF BELLIGERENT PROPERTY IN ANTICIPATION OF OR DURING WAR.

183. (a) The continental opinion was to regard the transfer of property to a neutral in anticipation of or during war as invalid;

(b) While the American, British, and Japanese courts have inclined to throw the burden of proof of bona fide ownership upon the purchaser.

(c) The Declaration of London, in 1909, recognized the transfer of an enemy vessel to a neutral flag before the outbreak of hostilities as in general valid, and the transfer after the outbreak of war as in general void, though making provisions in each case to guard the respective rights of the neutrals and of the belligerents.

In general, in time of war, goods shipped on account of the consignee and at his risk are regarded as his goods from the time of departure from port, and the character of these goods cannot change during the voyage. If they were hostile at the commencement of the voyage, they remain hostile till the end of the voyage. 16 If a contract made before, and not in anticipation of, war places the risk upon the consignor and is proven to be bona fide, the property will remain in the consignor, and may be exempt. By the Declaration of London, 1909:

17

"Article 60. Enemy goods on board an enemy vessel retain their enemy character 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 recognized legal right to recover the goods, they regain their neutral character." 18

(a) The French rule of July 26, 1778, required that, to be a valid sale, the transaction must be regular and in port before the commencement of war. The rule of the Institute of In

16 The Francis, 1 Gall. 445, Fed. Cas. No. 5032.

17 The Atlas, 2 C. Rob. 299.

18 Declaration of London, 1909, c. VI, Appendix, p. 583.

ternational Law provided that in time of war new nationality could not be acquired by a belligerent vessel during a voyage.19

(b) The attitude of the United States and Japan was well stated in the British case of the Ernest Merck: "The law requires, where a vessel has been purchased shortly before the commencement of the war or during the war, clear and satisfactory proof of the right and title of the neutral claimant, and of the entire divestment of all right and interest in the enemy vendor. The onus is put upon the claimant to produce this proof; if he does not do so, the court cannot restore. The court is not called upon to say that the transaction is proved to be fraudulent; it is not required that the court should declare affirmatively that the enemy's interest remains; it is sufficient to bar restitution if the neutral claim is not unequivocally sustained by the evidence." 20

(c) (1) Transfer before War.-The General Report of the Drafting Committee of the International Naval Conference says in regard to the transfer to a neutral flag:

"Chapter V.-Transfer of Flag. An enemy merchant vessel is liable to capture, whereas a neutral merchant vessel is spared. It may therefore be understood that a belligerent cruiser encountering a merchant vessel which lays claim to neutral nationality has to inquire whether such nationality has

19 "L'acte juridique constatant la vente d'un navire ennemi faite durant la guerre doit être parfait, et le navire doit être enregistré conformément à la registration du pays dont il acquiert la nationalité, avant qu'il quitte le port de sortie. La nouvelle nationalité ne peut être acquise au navire par une vente faite en cours de voyage." Sec. 26, Règlement international des prises maritimes. 9

Annuaire.

20 The Ernst Merck, Spinks, 98; The Benito Estenger, 176 U. S. 568, 20 Sup. Ct. 489, 44 L. Ed. 592.

Japanese Regulations Governing Captures at Sea, 1904: "Art. VI. The following are enemy vessels:

*

"4. Vessels, the ownership of which has been transferred before the war, but in expectation of its outbreak, or during the war, by the enemy state or its subjects to persons having residence in Japan or a neutral state, unless there is proof of a complete and bona fide transfer of ownership.

"In case the ownership of a vessel is transferred during its voyage, and actual delivery is not effected, such transfer of ownership shall not be considered as complete and bona fide."

been acquired legitimately or for the purpose of shielding the vessel from the risks to which she would have been exposed if she had retained her former nationality. This question naturally arises when the transfer is of a date comparatively recent at the moment at which the visit and search takes place, whether the transfer may actually be before, or after, the opening of hostilities. The question will be answered differently according as it is looked at more from the point of view of commercial or more from the point of view of belligerent interests. It is fortunate that agreement has been reached on a rule which conciliates both these interests so far as possible and which informs belligerents and neutral commerce of their position."

To provide for the protection of legitimate commerce without unduly restricting belligerent rights the following rule was adopted:

"Article 55. The transfer of an enemy vessel to a neutral flag, effected before the opening of hostilities, is valid, unless it is proved that such transfer was made in order to evade the consequences which the enemy character of the vessel would involve. There is, however, a presumption that the transfer is void if the bill of sale is not on board in case the vessel has lost her belligerent nationality less than sixty days before the opening of hostilities. Proof to the contrary is admitted.

"There is absolute presumption of the validity of a transfer effected more than thirty days before the opening of hostilities if it is absolute, complete, conforms to the laws of the countries concerned, and if its effect is such that the control of the vessel and the profits of her employment do not remain in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the opening of hostilities, and if the bill of sale is not on board, the capture of the vessel would not give a right to compensation."

In general, the burden of proof that a transfer made before the war is not valid rests upon the captor. The fact that the bill of sale is not on board, in case of transfers made less than sixty days before the war, is presumptive evidence against the validity of the transfer, and justifies capture. "This pre

sumption may be rebutted, though, if the bill of sale is not on board, the neutral vessel is not entitled to damages. For transfers made more than thirty days before the outbreak of hostilities, evidence that the transfer is made in order to evade the consequences of war is not considered, if the transfer is in other respects shown to be regular. Even for transfers within thirty days of the outbreak of hostilities, the burden of proof of invalidity rests upon the captor.

(2) Transfers after War.-In the case of transfer of vessels to a neutral flag after the outbreak of hostilities, the burden of proof is shifted and placed upon the one who claims to own the vessel. There are certain cases specified under which transfer is always regarded as invalid, as when en voyage, in a blockaded port, conditional or not legally complete. In other cases the one claiming ownership must prove that the transfer was commercial, rather than to evade the consequences to which a belligerent vessel is exposed in war. The rule is as follows:

"Article 56. The transfer of an enemy vessel to a neutral flag, effected after the opening of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences which the enemy character of the vessel would involve.

"There is, however, absolute presumption that a transfer is void:

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

“(2) If there is a right of redemption or of revision.

"(3) If the requirements upon which the right to fly the flag depends according to the laws of the country of the flag hoisted have not been observed." 21

TREATMENT OF CAPTURED VESSEL.

184. When a belligerent commander has decided to capture a neutral merchant vessel

(a) He should show his intention by taking possession of the vessel by a prize crew or otherwise.

21 Declaration of London, 1909, c. V, Appendix, p. 583.