The Laws of War, Affecting Commerce and Shipping — John Shaqi
The Laws of War, Affecting Commerce and ShippingThomson, H. Byerley (Henry Byerley)
History
The Laws of War, Affecting Commerce and Shipping
Thomson, H. Byerley (Henry Byerley)
Maritime law; War (International law); War, Maritime (International law)
When there is nothing particular or special in the conduct of the
vessel itself, the national character is determined by the Residence
of the Owner; but there may be circumstances arising from that conduct
which will lead to a contrary conclusion. It is a known and
established rule with respect to a vessel, that if she is navigating
under the pass of a foreign country, she is considered as bearing the
national character of the nation under whose pass she sails; she makes
a part of its navigation, and is in every respect liable to be
considered as a vessel of that country. In like manner, and on similar
principles, if a vessel, purchased in the enemy's country, is by
constant and habitual occupation continually employed in the trade of
that country, commencing with the war, continuing during the war, and
evidently on account of the war, that vessel is deemed a ship of the
country from which she is so navigating, in the same manner as if she
evidently belonged to the inhabitants of it.[74] Further, when parties
agree to take the pass and flag of another country, they are not
permitted, in case any inconvenience should afterwards arise, to aver
against the flag and pass to which they have attached themselves, and
to claim the benefit of their real character. They are likewise
subject to this further inconvenience, that their own real character
may be pleaded against them by others. Such is the state of double
disadvantage to which persons expose themselves by assuming the flag
and pass of a foreign state.[75]
* * * * *
[Sidebar: Distinction as to Cargoes]
A distinction is made in England between the Ship and the Cargo. Some
countries have gone so far as to make the flag and pass conclusive on
the cargo also; but in England it is held that goods have no
dependence upon the authority of the state, and may be differently
considered. If the cargo is 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.[76]
* * * * *
[Sidebar: Hostile Property cannot be Transferred _in Transitu_.]
Property which has a hostile character at the commencement of a
voyage, cannot change that character by assignment while it is _in
transitu_, so as to protect it from capture.[77]
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