The Taranaki Herald. DAILY EVENING. TUESDAY, NOVEMBER 30, 1915. NEUTRAL FLAGS.

Taranaki Herald, Volume LXIII, Issue 144850, 30 November 1915, Page 2

The Taranaki Herald. DAILY EVENING. TUESDAY, NOVEMBER 30, 1915. NEUTRAL FLAGS.

The much debated question of the protection a neutral flap gives to merchant shipping in war time is again raised by the request of the American Trans-Atlantic Shipping Co. for a United States convoy for one of its steamers from Buenos Ayres, lest British warships seize it owing to the doubt existing as to the legitimacy of its transfer to the American flag. A very learned and technical discussion of the whole question was recently contributed to the American Law Review by Professor James W. Garner, of the University of Illinois. The Declaration of London, he says, lays down the rule that, subject to the provisions respecting transfers to another flag, the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly, and the British naval war manual declares that “the commander will be justified in treating as an enemy vessel any vessel under the flag of the enemy Government.” In short, the enemy character of a ship is

determined by its flag and not by the nationality of its owner. To avoid capture German vessels have been transferred from the German to the American register, but this docs not necessarily give them protection, for if the transfers were not bona fide transactions, or if they were made to avoid capture, they were not, according to the Declaration, lawful transfers. A notorious case was that of the Dacia, a vessel of the Hamburg-America Line, which was purchased by an American citizen after the outbreak of war, while it was lying in an American port, and was admitted to American registry. Subsequently the vessel was laden with cotton intended for Germany and was seized by a French cruiser whilst en route to Rotterdam. On the face of it, it would appear that the transfer was made to avoid capture and therefore was not a lawful transfer under the Declarartion of London. As a matter of fact, the Declaration of London has never been properly ratified, and strictly speaking it is not binding. If we fall back on the previous practice we find that American and British practice in the past has recognised the validity of transfers after the outbreak of war. The French rule is an old one and declares that no vessel of enemy’s construction or which had been at any time owned by an enemy should be reputed neutral without proof that the sale to the neutral was made before the commencement of hostilities, but this was disregarded by the French during the war of 1870. At the International Naval Conference at London in 1908, Great Britain and the United States desired the adoption of the rules and practice they had hitherto observed, and these were accepted in substance by Austria-Hungary, Japan, the Netherlands, and .ain, while Italy’s proposals offered very slightly. France and Russia declared in favour of the old French rule, while the German delegation wished that a vessel bearing a neutral flag should he treated as an enemy ship if up to the opening of hostilities or within the two weeks preceding, it carried the enemy’s flag—substantially the French rule. The British delegates gave way and reached an agreement with the Germans, both being prepared to recognise that transfers made after the opening of hostilities should he considered lawful if the purpose was not to evade capture, and this was in substance adopted by the conference and embodied in the Declaration, which declares that transfers effected after the outbreak of hostilities are void unless it is proved that they were not made in order to evade the consequences to which an enemy vessel as such is exposed. If the transfer is made during a voyage or in a blockaded port, or if the vendor reserves the right to repurchase (he vessel, or if the registry laws of the country whose flag the vessel flies have not been complied with, there is absolute presumption that the transfer is void. On the other hand, if the transfer is made while the vessel is in a neutral port, as was that of the Dacia, the presumption of invalidity may he rebutted by proof to the contrary. It should be noted that it was Germany who was instrumental in making the. rule under the Declaration more severe than the old British rule which Britain wished to remain in force. Though the Declaration had not been ratified, on the outbreak of hostilities or shortly afterwards France, Russia. Great Britain, and Germany all agreed to observe those of its provisions which they regarded as most favourable to their interests, whilst they have modified to suit their present interests those provisions which are unfavourable. Britain announced its iutention of enforcing the new rule respecting transfers of flag, but the German Government modified this rule with a view to compelling the purchasers of enemy ships to employ them in carrying supplies to Germany.

The United States, on the other hand, objected to the Declaration being altered to suit individual countries and decided to he governed by existing treaties and the rules in force at the outbreak of hostilities. Hence the Declaration of London cannot be regarded as a rule binding on the parties, and we must fall back on the old rules, under which Germany, France, and Russia maintained the absolute invalidity of transfers made during war, while Britain admitted their validity provided they were bona fide transactions. The lack of a common rule complicates the problem. lu the case of the Dacia, the transfer might he established as valid according to the British rule, but not according to the French rule, and it may he that with this in mind it was pre-arranged that the vessel should bo captured by a French cruiser and taken to a French port. Even then it is competent for the French Prize Courts to apply the rule of the Declaration of London, in which case the validity of the transfer may he established by the evidence. Just here the point may be raised that since the German ships were in American ports because if they left they would he exposed to capture and that consequently the transfer of flag was made to avoid capture, and hence was invalid uuder the Declaration. But, on the other hand, it may be argued that as the vessels in American ports were safe from capture tho transfer cannot have been made to evade capture. Professor Gamer thinks the question is debatable and that the latter view is more in accord with the modern theory of freedom of trade and with practice in the past. The only possible conclusion, in his opinion, is that if the transfer of the Dacia is invalid (assuming that the legal formalities have been complied with) there are apparently no conceivable circumstances under which transfers from belligerent to neutral flags can be made after the outbreak of war. This certainly has the appearance of soundness to a lay mind, but it also seems sound reasoning that Britain should he permitted to regard as an enemy ship one which has been transferred, as the Dacia was, in order to enable her to carry on her old trade with Germany without being submitted to the risk of capture.