Sailing under foreign flags. Sailing under the flag and pass of an enemy, is another mode by which a hostile character may be affixed to property; for if a neutral vessel enjoys the privileges of a foreign character, she must expect at the same time, to be subject to the inconveniences attaching to that character. This rule is necessary to prevent the fraudulent mask of enemy's property. But a distinction is made, in the English cases, between the ship and the cargo. Some countries have gone so far as to make the flag and pass of the ship conclusive on the cargo also; but the English courts have never carried the principle to that extent, as to cargoes laden before the war. The English rule is, to hold the ship bound by the character imposed upon it by the authority of the government from which all the documents issue. But goods which have no such dependence upon the authority of the state, may be differently considered; and if the cargo be laden in time of peace, though documented as foreign property in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo. (a) The doctrine of the federal courts in this country has been very strict on this point, and it has been frequently decided, that sailing under the license and passport of protection of the enemy, in furtherance of his views and interests, was, without regard to the object of the voyage or the port of destination, such an act of illegality as subjected both ship and cargo to confiscation as prize of war. (b) 2 The * federal courts placed the objection to these licenses on *86 (a) The Elizabeth, 5 Rob. Rep. 2. The Vreede Scholtys, cited in the note to 5 Rob. Rep. 5. (b) The Julia, 1 Gall. 605, S. C. 8 Cranch, 181. The Aurora, ib. 203. The Hiram, ib. 444. The Ariadne, 2 Wheaton, 143. The Caledonian, 4 Wheaton, 100. That an insurance is void, when made on a voyage so rendered illegal by sailing under an enemy's license, is considered as settled. Colquhoun v. N. Y. F. Ins. Co. 15 Johnson, 352. Ogden v. Barker, 18 id. 87. Craig v. U. S. Ins. Co. 1 Peters's C. C. Rep. 410. 1 So the share of a neutral in a ship sailing under Russian colors and with a Russian sea-pass, was held to be subject to condemnation. The Industrie, 33 E. L. & Eq. 572. The Primus, 29 E. L. & Eq. 589. The cargo of a ship sailing under the enemy's flag, may still retain a neutral character; but if it be the property of one, who has acquired a domicil in the enemy's country, it will be no longer considered neutral. El Telegrafo, 1 Newberry, Adm. 383. the ground of a pacific dealing with the enemy, and as amounting to a contract, that the party to whom the license is given should, for that voyage, withdraw himself from the war, and enjoy the repose and blessings of peace. The illegality of such an intercourse was strongly condemned; and it was held, that the moment the vessel sailed on the voyage, with an enemy's license on board, the offence was irrevocably committed and consummated, and that the delictum was not done away even by the termination of the voyage, but the vessel and cargo might be seized after arrival in a port of the United States, and condemned as lawful prize. Property Having thus considered the principal circumstances in transitu. which have been held by the courts of international law to impress a hostile character upon commerce, it may be here observed, that property which has a hostile character at the commencement of the voyage, cannot change that character by assignment, while it is in transitu, so as to protect it from capture. This would lead to fraudulent contrivances, to protect the property from capture, by colorable assignments to neutrals. But if a shipment be made in peace, and not in expectation of war, and the contract lays the risk of the shipment on the neutral consignor, the legal property will remain to the end of the voyage in the consignor. (a) During peace, a transfer in transitu may be made; but when war is existing or impending, the belligerent rule applies, and the ownership of the property is deemed to continue as it was at the time of the shipment until actual delivery. This illegality of transfer, during or in contemplation of war, is for the sake of the belligerent right, and to prevent secret transfers from the enemy to neutrals, in fraud of that right, and upon conditions and reservations which it might be impossible to detect. (b) So property shipped from a neutral to the enemy's country, under a contract to become the property of the enemy on arrival, may be taken in transitu as enemy's property; for capture is considered as delivery. The captor, by (a) Packet De Bilboa, 2 Rob. Adm. R. 133, 134. Anna Catharina, 4 id. 112. (b) Vrow Margaretha, 1 Rob. Rep. 336. Jan Frederick, 5 Rob. Rep. 128. See, also, 1 Rob. Rep. 1, 101, 122. 2 Rob. Rep. 137. 1 Rob. Rep. 16, note. 4 Rob. Rep. 32. The Boedes Lust, 5 Rob. 233. Story, J., in The Ann Green, 1 Gallison, the rights of war, stands in the place of the enemy. (a) The prize courts will not allow a neutral and belligerent, *87 by a special agreement, to change the ordinary rule of peace, by which goods ordered and delivered to the master are considered as delivered to the consignee. All such agreements, though valid in time of peace, are in time of war, or in peace, if made in contemplation of war, and with intent to protect from capture, held to be constructively fraudulent; and if they could operate, they would go to cover all belligerent property, while passing between a belligerent and a neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stand in the one or the other of those relations. These principles of the English admiralty have been explicitly recognized and acted upon by the prize courts in this country. The great principles of national law were held to require, that, in war, enemy's property should not change its hostile character, in transitu; and that no secret liens, no future elections, no private contracts looking to future events, should be able to cover private property while sailing on the ocean. (b) Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost. (c) All reservation of risk to the neutral consignors, in order to protect belligerent consignees, are held to be fraudulent; and these numerous and strict rules of the maritime jurisprudence of the prize courts are intended to uphold the rights of maritime capture, and to prevent frauds, and to preserve candor and good faith in the intercourse between (a) The Anna Catharina, 4 Rob. Rep. 107. The Sally, Griffiths, 3 Rob. Rep. 300, in notis. (b) The Francis, 1 Gallison, 445. 8 Cranch, 335, 359, S. C. (c) The Josephine, 4 Rob. Rep. 25. 24. And the American cases, ubi supra. The Tobago, 5 ib. 218. The Marianna, 6 ib. It is the general rule and practice in the admiralty, on questions depending upon title to vessels, to look to the legal title, without taking notice of equitable claims. The Sisters, 5 Rob. Adm. 155. The Valiant, English Adm., July, 1839. belligerents and neutrals. (a) The modern cases contain numerous and striking instances of the acuteness of the captors in tracking out deceit, and of the dexterity of the claimants in eluding investigation. (b)1 (a) The prize law, as declared by the English admiralty as early as 1741, and by the decisions of the prize courts in this country, in the case of property in transitu during war, is clearly and correctly stated, and ably enforced, by Mr. Duer, in his Treatise on Insurance, vol. i. 478-484. (b) The purchase of ships is a branch of trade neutrals may lawfully engage in, when they act in good faith, though, from its nature, it is liable to great suspicion, and the circumstances of the case are examined in the prize courts with a jealous and sharp vigilance. Duer on Insurance, vol. i. 444, 445, 573. 1 If a neutral aver a purchase of the ship from the enemy immediately before the war, the Court of Prize will require complete proof of the circumstances of the sale. The Ernst Merck, 33 E. L. & Eq. 594. LECTURE V. OF THE RIGHTS OF BELLIGERENT NATIONS IN RELATION TO EACH OTHER. THE end of war is to procure by force the justice which cannot otherwise be obtained; and the law of nations allows the means requisite to the end. The persons and property of the enemy may be attacked and captured, or destroyed, when necessary to procure reparation or security. There is no limitation to the career of violence and destruction, if we follow the earlier writers on this subject, who have paid too much deference to the violent maxims and practices of the ancients, and the usages of the Gothic ages. They have considered a state of war as a dissolution of all moral ties, and a license for every kind of disorder and intemperate fierceness. An enemy was regarded as a criminal and an outlaw, who had forfeited his rights, and whose life, liberty, and property lay at the mercy of the conqueror. Every thing done against an enemy was held to be lawful. He might be destroyed, though unarmed and defenceless. Fraud might be employed as well as force, and force without any regard to the means. (a) But these barbarous rights of war have been questioned and checked in the progress of civilization. Public opinion, as it becomes enlightened and refined, condemns all cruelty, and all wanton destruction of life * and property as equally useless and injurious; and *90 it controls the violence of war by the energy and severity of its reproaches. Grotius, even in opposition to many of his own au- Ancient thorities, and under a due sense of the obligations of rules of war religion and humanity, placed bounds to the ravages condemned. (a) Grotius, b. 3, c. 4 and 5. Puff. lib. 2, c. 16, sec. 6. Bynk. Q. J. Pub. b. 1, c. 1, 2, 3. Burlamaqui, part 4, c. 5. |