59 4 C. Robinson, 260.

60 6 C. Robinson, 426.

61 6 C. Robinson, 428–9.

62 6 C. Robinson, 433–6.

63 6 C. Robinson, 454–5.

64 Proceedings of American Society of International Law, 1912, p. 9.

65 The account of this case and the law on the question are taken from Professor Holland, Letters on War and Neutrality, 2d ed., 1914, pp. 161–170.

66 Holland, Letters on War and Neutrality, 2nd ed., p. 161.

67 De Martens, Traité de Droit International, Vol. 3, pp. 298–9.

68 Holland, Letters on War and Neutrality, 2d ed., pp. 163–4.

69 Treaties, Conventions, etc., Vol. 3 (Charles), p. 311.

70 On the question of transfer to a neutral flag covered by Articles 55 and 56, see for English cases: The Benedict, Spinks, 314; Baltica, 11 Moore P. C , 141; Minerva, 6 C. Robinson, 396 (1807); General Hamilton, 6 C. Robinson, 62 (1805); Jan Frederick, 5 C. Robinson, 128 (1804); Sechs Geschwistem, 4 C. Robinson, 100 (1801); Vigilantia,.1 C. Robinson, 1 (1798). The English rule is, in effect, that the sale of an enemy vessel to a neutral may be made at any time or place except a blockaded port. It must, however, as against a captor be complete and bona fide, and if made in time of war the purchaser must have taken possession. Russia and France do not recognize transfers to neutrals unless unconditional and made before the war; Holland recognizes such transfers without restriction if not made in a blockaded port; Spain and other states follow in the main the British practice. (See Parliamentary Papers, Miscellaneous No. 5, 1909, pp. 27, 31, 52, 56.)

The American law is stated in the Benito Estenger (1899), 176 U. S. 568. The Benito Estenger, which was captured by the U. S. S. Hornet June 27, 1898, was, prior to June 9,1898, the property of Spanish subjects. On that day a bill of sale was made to a British subject, and, on compliance with the requirements of the British law governing registration, the Benito Estenger was registered as a British vessel in the port of Kingston, Jamaica. Chief Justice Fuller, citing the English cases, held that transfers of vessels flagranti bello cannot be sustained if subjected to any condition by which the vendor retains an interest in the vessel or its profits, a control over it, or a right to its restoration at the close of the war; and that the burden of proof in respect of the validity of such transfers being on the claimant, the requirements of the law of prize were not satisfied by the proofs in this case.

See also the interesting case of The Georgia (1868), 74 U. S. 132.

The Georgia was a war vessel of the Confederate States which entered the port of Liverpool to escape from the vessels of the United States in pursuit. It was there purchased by a British subject, transformed into a merchant vessel under the British flag and, on its issue from the port of Liverpool, it was captured by the United States ship of war Niagara, September 15, 1864, off the coast of Portugal. Justice Nelson, in delivering the opinion of the court confirming the condemnation of the Georgia by the District Court for Massachusetts, said (p. 42):

“It has been suggested that, admitting the rule of law as above stated, the purchase should still be upheld, as the Georgia, in her then condition, was not a vessel of war, but had been dismantled, and all guns and munitions of war removed; that she was purchased as a merchant vessel, and fitted up, bona fide, for the merchant service. But the answer to the suggestion is, that if this change in the equipment in the neutral port, and in the contemplated employment in future of the vessel, could have the effect to take her out of the rule, and justify the purchase, it would always be in the power of the belligerent to evade it, and render futile the reasons on which it is founded. The rule is founded on the propriety and justice of taking away from the belligerent, not only the power of rescuing his vessel from pressure and impending peril of capture, by escaping into a neutral port, but also to take away the facility which would otherwise exist, by a collusive or even actual sale, of again rejoining the naval force of the enemy."

71 1 C. Robinson, 300

72 2 C. Robinson, 197–8.

73 Ibid., 200. See on this question the case of the Wilhelmina, 4 C. Robinson, Appendix, pp. 4–15, in which Sir William Scott examines the criticisms, reconsiders, and reaffirms the doctrine.

74 4 C. Robinson, Appendix, p. 11.

75 The Antelope, 10 Wheaton, 122 (1825).

76 Treaties, Conventions, etc., Vol. 3 (Charles), p. 315. The following compromise was proposed but not accepted:

The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy nationality of their owner, or, if he is of no nationality or of double nationality (i. e., both neutral and enemy), by his domicile in a neutral or enemy country;

Provided that goods belonging to a limited liability or joint stock company are considered as neutral or enemy according as the company has its headquarters in a neutral or enemy country. (Ibid.)

77 Treaties, Conventions, etc., Vol. 3 (Charles), page 316.

78 1 C. Robinson, 338–9.

79 1 C. Robinson, 340, 360-362. See also The Elsabe (1803), 4 C. Robinson, 408.

80 Parliamentary Papers, Miscellaneous No. 4, 1909, p. 25.

81 Treaties, Conventions, etc., Vol. 3 (Charles), p. 319.

82 Treaties, Conventions, etc., Vol. 3 (Charles), p. 250.

83 Barclay, Turco-Italian War and Its Problems (1912), p. 100.

84 Treaties, Conventions, etc., Vol. 3 (Charles), p. 284.

85 Ibid., page 284.

86 Professor Holland’s “Proposed Changes in Naval Prize Law,” an address read before the British Academy, May 31, 1911, p. 8 in the separate reprint.

87 Holland, Proposed Changes in Naval Prize Law, p. 16.

88 Ibid., p. 16.

89 The Nineteenth Century, March 1910, p. 505.

90 Ibid., p. 506.

91 Quoted from address of Hon. Elihu Root, Proceedings of the American Society of International Law (1912), pp. 11–12.

92 Proceedings of the American Society of International Law (1912), pp. 14–15.