LAW OF CAPTURE

Dominion, Volume 7, Issue 2237, 25 August 1914, Page 6

LAW OF CAPTURE

SHIPOWNERS' RISKS CONDEMNATION OF "ENEMY" GOOjfS "■ Any enemy ship met with on the high seas, whether a public • vessel, that is, a warship, or a merchant vessel, is liable to be. captured by any members of the British or Australasian Fleets, and both vessels, and part part of the cargo which is regarded as "enemy" goods, are liable to confiscation after ; condemnation' by a properly constituted Prize Court.- '-No '■' doubt very shortly such courts will be established under Imperial legislation* "at. our chief ports (writes the "Sydney.Morning Herald"), and if any member of the Fleet happens to capture "enemy" vessels these will be brought in, and if, after due trial, they are condemned,, they will become the property ..of jithe' Crown. . ■ . ;. ' t What -are "Enemy" Shlp3? ;' It is, : therefore, necessary, in the first instance, to ..ascertain precisely what is meant by an "enemy" ship. As regards : ships'of .war,, very little difficulty presents itself, for such vessels duly appear in the-official lists of the (leot. Thero-is greater difficulty in con-, nectionwith'-vessels 'which are primar-, yily.engaged in mercantile trade, but Which carry arms and munitions of war. Some difficulty also presents itself., in connection' with purely, merchant ships. All. sorts of difficulties may arise in determining the ownership ot such vessels., For instance,' it may easily be that a ship is owned by a person domiciled in one country, but a native of another," and the ship itself may bo.registered iii a third country. Or it : may be,that a ship:is owned-by a company whose shareholders are quite coDmopoh■jtan in-character. Some shipping companies > have their head offices in. one country, while the port of registry of their ships may be in another. Then similar difficulties arise in- connection with the ownership of, goods on board vessels proved to Tie enemy' ships., A. G.erman, fof_ example, who has never been naturalised, may be the owner of goods on a German.vessel, yet he may have been a resident of the Commonwealth for a quarter of a century or more, and his domicile may clearly have been in Sydney. Goods may bo owned by a.German subject naturalised in a neutral country;'. for exampfe, by a German resident in the., United States. According to the \British system, all vessels owned. by British subjects or v by companies .registered under British law, which for this purpose includes Australian law,', and having their principal place of business within the King's Dominions, are regarded as British ships, and are so - entitled! to fly. the national .flag; l / On _ the Continent, however, the nationality plays a different part, and in the'easo of company registration, quite apart from nationality of the owner and crew, may give the ship; the' right to fly the national "flag. The general -rule is that the-flag determines the national character of the vessel. So if .a .vessel were captured flying the German flag, the presumption would be that she was a German vessel, and thus 'liable. to capture and condemna-

:,, - Transfers of Ownership. ! , ■■ It is natural that shipowners in time of war, 91' just' preceding the'outbreak of hostilities, would desire, if possible, to transfer their vessels either to a neutral owner'or at any rate to have them registered at a neutral port, and so escape the penalties that, belligerent vessels are subjected : to. ' At the .present moment, for instance, all British yes-.. sels are liable to capture, and the' owriv ers dare not allow, them to proceed'to' seaunless they and their cargo are covered by war risks.' The Declaration of .London, which,' however, was never signed by the British Government, lays ! down certain rules.to cover these difficulties;, it provides that the transfer of aii enemy vessel to a neutral flag, whether made before or after the outbreak of war, may:be perfectly valid unless .perchance ■■ it can be shown to have been made in order to evade "the consequences of the war. If it'were.made ibefore the war broke out,.the.onus': of proving it to be invalid will lie with the, captor when the vessel is brought before the Prize Court for adjudication; but if the transfer. was made after the war the onus of proof as to its validity lies with the alleged neutral owner. There are 1 also a number of subsidiary rules and. presumptions in relation to both classes of, transfers. . In regard to< tho first class, if the transfer is made moro'than 30 days before the war, then there is an absolute presumption in favour ofits validity, if it is unconditional, complete, and in conformity with the: laws of tho respective countries without, ; control or share in the profits being rer /served-by. -the vendor. Even if it were ;made less than 30 days before the war, it will, in goher'a], bo regarded as valid, though it will? be open to the captor to bring ; .po'sitive : proof that it was made for- purpose of evading, the consequences of the war. If the transfer were* made'withift.'jßO days of tbe.war, therebeing no billf of s a ' 6 on board, ,then there, will 'be'.no presumption in favour ■of its validity;/but .the owners here, tco.may prove their ownership to ba valid,, and .if they succeed; their vessel will be released • but they 'will have no claim to compensation for the arrest or for' ; ;any detention. In regard to trans-: fers made,after the war, the presumption here is- that the transfer is invalid, unless the owner'can clearly show that it was'not ma'de with the view of evading - tho' consequences of tho war. If the transfer were made while tho vessel was on a voyage, or was locked up in a blockaded port, or if it wore sold with a right of repurchase reserved to the Vendor, then ■ there is an ■ irrebuttable presumption that the transfer has been illegally made.

, "Enemy" Charaoter of Coods. '.Quito as interesting questions may •ariso as to the "enemy." character/ of goods'carried in an enemy ship. ...Merchants' aro much concerned as to how they stand in relation-to'goods which they owii, and which are now in North German Lloyd vessels, either on the high seas or detained by the Commonwealth '..-' or- British' Government. Of course if goods in these vosscls, belong to ah enemy, then they are liable to confiscation, but if they are owned by a friend, or by a neutral, it behoves that friend or neutral to prove his ownership, in which event the goods will bo handed oyer to tho true-owner, although there is- no obligation upon the captor who takes tho ship to an intermediate port to deliver the goods at -the original port of destination. So if a North Gorman Lloyd boat be seized at Fremantle which contains goods owned by Sydney merchants and originally shipped for delivery in Sydney these goods may bo landed at Fremantle, and the duty devolves on the Sydney owner to bring them hero if ho so desires at his own expense.

Postal Matter Inviolable. There.' is -'one important exception to the rule that . goods in an ''enemy" ship and owned by an enemy ate liable to confiscation. The Hague Convention of 4907 provides that all postal correspondence, whether of friends or neutrals or belligerents, whether official or private, whothor found on a neutral or an "enemy" vessel at sea, shall bo inviolable, , even if tho vossel itself be detained, being an "enemy" ship or a noutral vessel carrying contraband of war. The captor must, with the least possible delay, forward all correspondence 'that he seizes to its original destination. In other respects mail ships are subject to all the risks ordinarily incidental to war. If neutrals, they are liable to "visit aud search," so that the belligorcnt may ascertain whether contraband of war is concealed therein or 'not, and if an ''enemy" skip, is liable to confiscation just as any. other vessels, would fee,