International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
(1) According to article 55 of the Declaration, the transfer of an enemy
vessel to a neutral flag, if effected _before_ the outbreak of
hostilities, is _valid_, unless the captor is able to prove that the
transfer was made in order to avoid capture. However, if the bill of
sale is not on board the transferred vessel, and if the transfer was
effected less than sixty days before the outbreak of hostilities, the
transfer is presumed to be void, unless the vessel can prove that such
transfer was not effected in order to avoid capture. To provide
commerce with a guarantee that a transfer should not easily be treated
as void on the ground that it was effected for the purpose of evading
capture, it is stipulated that, in case the transfer was effected more
than thirty days before the outbreak of hostilities, there is an
absolute presumption of its validity, provided the transfer was
unconditional, complete, and in conformity with the laws of the
countries concerned, and further, provided that neither the control of,
nor the profits arising from, the employment of the vessels remain in
the same hands as before the transfer. But even in this case a vessel is
suspect if the transfer took place less than sixty days before the
outbreak of hostilities, and if her bill of sale is not on board. Hence
she may be seized and brought into a port of a prize court for
investigation, and she cannot claim damages for the capture, even if the
Court releases her.
(2) According to article 56 of the Declaration, the transfer of an enemy
vessel to a neutral flag, if effected _after_ the outbreak of
hostilities, is _void_ unless the vessel can prove that the transfer was
not made in order to avoid capture. And such proof is excluded, and an
absolute presumption is established that the transfer is void, if the
transfer has been made in a blockaded port or while the vessel was _in
transitu_, further, if a right to repurchase or recover the vessel is
reserved to the vendor, and lastly, if the requirements of the Municipal
Law governing the right to fly the flag under which the vessel is
sailing have not been fulfilled.
[Footnote 161: See Holland, _Prize Law_, § 19; Hall, § 171; Twiss, II.
§§ 162-163; Phillimore, III. § 386; Boeck, Nos. 178-180; Bonfils, Nos.
1344-1349'1; Dupuis, Nos. 117-129, and _Guerre_, Nos. 62-66.]
[Footnote 162: See Dupuis, No. 97.]
[Footnote 163: The _Vigilantia_ (1798), 1 C. Rob. 1; the _Baltica_
(1857), 11 Moore, P.C. 141; the _Benito Estenger_ (1899), 176 United
States, 568.]
[Footnote 164: The _General Hamilton_ (1805), 6 C. Rob. 61.]
[Footnote 165: The moment a vessel transferred _in transitu_ reaches a
port where the new owner takes possession of her, the voyage of the
vessel is considered to have terminated. The _Vrow Margaretha_ (1799), 1
C. Rob. 336; the _Jan Frederick_ (1804), 5 C. Rob. 128.]
[Footnote 166: The _Sechs Geschwistern_ (1801), 4 C. Rob. 100; the
_Jemmy_ (1801), 4 C. Rob. 31.]
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