1856, he referred to The Hampton, 5 Wall. 372, where the Supreme Court of the United States decided that, "In proceedings in prize and under principles of international law, mortgages on vessels captured jure belli are to be treated as liens subject to being overridden by the capture, not as jura in re, capable of an enforcement superior to the claims of the captors." So in The Battle, 6 Wall. 498, the same Court declared "The principle is too well settled that capture as prize of war, jure belli, overrides all previous liens to require examination." And in 1870, the French Prize Court decided against the claim of neutral British mortgagees of a Prussian vessel. In The Carlos F. Roses, 177 U. S. Rep. 655; Scott. 1087, Chief Justice Fuller said: "The right of capture acts on the proprietary interest of the thing captured at the time of the capture and is not affected by the secret liens or private engagements of the parties. Hence, the prize Courts have rejected in its favor the lien of bottomry bonds, of mortgages, for supplies and of bills of lading." In The Rossia and The Nigretia, 2 R. & J. P. C. 43 and 201, the Japanese Prize Court followed the same lines. Finally, in rejecting the mortgagee's claim, Evans, P., adopted the following passage from Westlake's International Law, Part II., 169: “If a ship sails under the enemy flag, the character which her owner or any of her part owners may have as individuals is immaterial. By accepting the flag they have placed themselves under its protection; if that fails then she may be captured and will be condemned, and no share which a friend may have in her will be saved. A mortgage or lien on a ship sailing under the enemy's flag, whether it arises by contract or by law, as a factor's lien -unless it is a general law of the mercantile world, as that which gives the lien of freight-is treated as a part interest in the ship and is not saved from the condemnation.

But where money has been advanced by British merchants on the security of the ship for its outfit before seizure, the practice, said Lord Stowell, in The Belvidere, 1 Dod. 353, has been for the Crown ex gratia to repay such advances. "It was thought by the Court, and by the Government also, that it would be a harsh measure to make the British merchants sustain the loss of money so expended ”. (q).

Nevertheless, the lien of an unpaid vendor is, as we have seen, recognised to the extent of supporting a re-transfer from an enemy consignee to a neutral consignor, in the event of the bankruptcy of the former (r).

GENERAL NOTES.-Enemy Character of Goods generally.-The question of the liability of goods, as having an enemy character, can now only arise as to goods found in enemy vessels (s). Art. 59 of the Declaration of London merely gave expression to the customary rule already referred to (t). It is also commonly recognised that the enemy character of goods depends on the enemy character of the owner (u).

(q) See also The Aina, Spinks, 8. (r) Supra, p. 238.

(s) Declaration of Paris, 1856, Art. 2. But see Reprisals Order in Council,

I.L.

1917, infra, p. 647-55.

(t) See The Carlos F. Roses, 177 U. S. 655; and p. 220, supra.

(u) See p. 230, supra.

16

But this, as has already been pointed out, is determined according to the practice of one group of States-including Germany, Austria, France, Italy, and Russia-by the principle of nationality; whilst according to the practice of another group of States-including Great Britain, the United States, Japan, Holland, and Spain-it is determined primarily by the principle of domicil (x). At the Naval Conference it was found impossible to reach any agreement on this subject. Hence the Declaration of London, Art. 58, merely provided that the neutral or enemy character of goods found on board an enemy vessel should be determined by the neutral or enemy character of the owner. This, it will be seen, makes no provision for determining the neutral or enemy character of the owner, and thus leaves the question between "nationality" and "domicil ” open for future settlement. Meanwhile, the Anglo-American Courts will continue to apply the test of domicil.

These Courts recognise, in addition to domicil, other grounds of liability, such as the possession of a house of trade or an agricultural estate in the enemy country, or the conduct of a privileged trade; any of which will confer an enemy character upon property connected therewith, irrespective of the residence of the owner (y). It is conceived that the real principle underlying the British and American decisions is that of hostile association; the existence, that is, of some bond-implying protection and trade benefit on the one hand, and subjection to the enemy control and contribution to his resources (z) on the other-which identifies the person in question with the enemy State, either fully, as in the case of domicil, or quoad all property connected with the source of hostile association, as in other cases. And it is this underlying principle-of which "domicil" is really only an application (a)-which really has to be contrasted with "nationality." But if the test of nationality" should be ultimately adopted, then, of course, the whole fabric on which the Anglo-American doctrine is built up would fall to the ground.

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Transfers in transitu.-Art. 60 of the Declaration of London provided that enemy goods on board an enemy vessel should be deemed to retain their enemy character until they reached their destination, notwithstanding any transfer effected after the outbreak of hostilities and whilst the goods were being forwarded. This, again, merely gave effect to the rule generally recognised that the enemy character of goods cannot ordinarily (b) be changed during their transit; which is itself based on the grounds set forth in the judgment in the Vrow Margaretha (c). But under the British practice, transfers made before the war, even though primâ facie valid, may be vitiated by proof that they were made in contemplation of war and with a view to evade its consequences (d).

Lien of an Unpaid Vendor.-Notwithstanding the rule that trans

(x) See Parl. Pap. 1909 [Cd. 4555]. (y) Supra, pp. 231-3.

(z) Including taxation, whether ordinary or extraordinary.

(a) Although it has been sought to extend it by the use of the term

com

mercial domicil": see vol. i. 216.

(b) And saving the case mentioned below.

(c) Supra, p. 238.
(d) Supra, p. 240.

fers in transitu will not in general be valid if made after the war, Art. 60 of the Declaration of London provided that, if prior to the capture of goods consigned by a neutral to an enemy the former exercised, on the bankruptcy of the latter, a recognised legal right to recover the goods, they regained their neutral character. This, whilst not otherwise impugning the rule that neutral liens over enemy goods may be disregarded (e), or the rule which forbids transfers in transitu after the war, yet recognised the lien of an unpaid neutral vendor, in so far as to treat as valid the re-transfer to him which took place upon the exercise of a right of stoppage in transitu on the bankruptcy of the enemy consignee, so long as this right was conferred by the law which governed the contract and had been exercised before actual capture. This agrees in the main with the Anglo-American practice already described.

RESTRICTIONS ON MARITIME CAPTURE.

(i) STATUS OF ENEMY MERCHANT VESSELS ON OUTBREAK OF WAR.

THE BUENA VENTURA.

[175 U. S. 384 (1899).]

Case.] ON the 25th of April, 1898, the United States issued a declaration of war against Spain, which, among other things, recited that a state of war had existed since the 21st of April. On the 22nd of April the Buena Ventura, a Spanish merchant vessel, was captured by a United States cruiser off the American coast, and sent in for adjudication. The Buena Ventura had arrived from Cuba at an American port about the 31st of March; had left that port on the 19th of April; and was at the time of her capture proceeding to another American port for the purpose of taking bunker coal. At the time of capture, those on board her were unaware of the war. On the 26th of April, 1898, the president issued a proclamation providing, in effect-(1) that Spanish merchant vessels in any ports or places within the United States should be allowed till the 21st of May, 1898, inclusive, for loading and departure, and should, if met at sea, be permitted to continue their voyage, if it appeared that their cargoes had been taken on board within the time allowed, and

(e) Supra, p. 239.

subject to the condition of their not having on board any officer in the naval or military service of the enemy or contraband, or any dispatch from or to the Spanish Government; and (2) that any Spanish merchant vessel which, prior to the 21st of April, had sailed from any foreign port for any port or place in the United States, should be permitted to enter, discharge, and depart, and should, if met at sea, be permitted to continue her voyage to any port not blockaded. In the District Court a decree of condemnation was pronounced, and the vessel ordered to be sold; the proceeds, however, being deposited to abide the result of appeal; but on appeal to the Supreme Court this decree was reversed, and the vessel released.

Judgment.] In the judgment of the Supreme Court, which was delivered by Peckham, J. (f), it was laid down that, in view of the fact that enemy merchant vessels carrying on innocent commercial enterprise either at the time or just before the time when hostilities began, were, according to the later practice of civilized nations, entitled to liberal treatment, the terms of the President's proclamation ought to receive the most extensive interpretation of which they were capable (g). The provision that Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21st, 1898, inclusive, for loading their cargoes and departing" might be held to include (1) only vessels in port on the 26th of April when the proclamation was issued; or (2) those in port on the 21st of April, when war was declared by Congress to have begun; or (3) not only those then in port, but also any that had sailed therefrom on or before the 21st of May, whether before or after the commencement of the war or the issuing of the proclamation. The Court preferred to adopt the last interpretation. Although the proclamation did not in so many words include vessels which had sailed from the United States before the commencement of the war, such vessels were clearly within its intention, under the liberal construction which the Court felt bound to give. To attribute to the Executive an intention to exempt vessels which had sailed from United States ports after the 21st of April and

(f) Fuller, C.J., and Gray and McKenna, JJ., dissenting.

(g) The Phoenix, Spinks, 306, and The Argo, ibid 52.

before the 21st of May, and to refuse it to vessels which had sailed before the 21st of April would be altogether unjustifiable. Hence, in the present case, the vessel, although she had actually left a United States port on the 19th of April, must be released. In view, however, of the fact that at the date of seizure, the 22nd of April, the proclamation had not actually been issued, restitution would be granted without damages or costs (h).

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The terms of the proclamation issued by the President at the commencement of the Spanish-American war of 1898, afford an illustration of what is spoken of in the judgment as the later practice of civilised States" in its more liberal form. Briefly, under that practice enemy merchant vessels found either in or on their way to the national ports, after the commencement of hostilities, were, under certain conditions, exempted from capture, and commonly allowed to return unmolested to some port of their own country (i). In The Buena Ventura the Supreme Court gave to this practice, as embodied in the President's proclamation, the broadest possible interpretation. In the case of the Pedro, 175 U. S. 354, however, it was held not to apply to a vessel trading from one port of the enemy to another, and carrying cargo exclusively for the enemy, even though under contract to proceed ultimately to a United States port. In The Panama, 176 U. S. 535, it was held not to apply to a vessel which, although otherwise within the protection of the proclamation, was carrying an armament susceptible of use in war, and was moreover under contract to the enemy Government for use in war. In The Nadesdda, 2 R. & J. P. C. 108, it was held by Japanese Courts not to apply where an enemy vessel had remained in port after the days of grace had expired. This practice was embodied, with some modifications, in the H. C. VI., 1907. But in cases not covered by the Convention, vessels which enter an enemy port after the war will still remain subject to the ordinary rule of maritime capture (k).

GENERAL NOTES.-Position of Enemy Merchant Vessels on the Outbreak of War: (i) Under the Customary Law.-Enemy merchant vessels found in the national ports after the commencement of war remained liable to capture long after the practice of appropriating enemy property on land had been in general abandoned; the capture in such a case ranking as a maritime capture (1). But about the

(h) The proceeds of sale were ordered to be paid over to the claimant without any deduction for costs in the proceedings, and subject only to a deduction of expenses properly incident to the custody and preservation of the property up to the time of sale.

(i) Infra, p. 246.

(k) The Johanna Emilie, Spinks,

317.

(1) As to the more rigorous practice of seizing such vessels in anticipation of war, see vol. i. 352.