may be seized for Breach of Blockade, although committed whilst the Blockade was in force; but no Vessel already detained for Breach of Blockade should be released, 48 CHAPTER XII. ENEMY VESSELS. 250. The Commander should detain any Enemy Vessel which he may meet with, whatever are the ports between which she is trading. Who are Enemies. 251. The following Persons are Enemies: a. Any Person who has his Domicile in the Enemy's Territory, whatever be his Nationality by birth.1 b. Any Person who, having been born in the Enemy's Territory, has not bonâ fide acquired a new Domicile in British, Allied, or Neutral Territory.2 c. Any person who, having until recently had his Domicile in the Enemy's Territory, has not bonâ fide abandoned that Domicile. 252. A place only in temporary occupation by the Enemy is not for this purpose to be considered as Enemy's Territory.3 253. By the Domicile of a Person is meant the place of his permanent residence, or, if he is a Trader, the principal place of his Trade. The Domicile of a Consul who trades is in the place of his Trade, and not in the Country which he represents.1 254. The Domicile of the Owner of a Vessel will be ascertained from her Papers-e. g. her Register (if any), or the Builder's Contract, if the Vessel is a new Vessel; 48 Conferenzrath, 6 C. Rob. 362. 1 Johanna Emilie, Spinks, 12. Rob. 18. Lisette, 6 C. Rob. 395. Baltica, Spinks, 266. Indian Chief, 3 C. 2 Ernst Merck, Spinks, 102. Soglasie, Spinks, 110. 3 Gerasimo, 11 Moore P.C. 100. 4 Ariel, 11 Moore P.C. 119. Baltica, 11 Moore P.C. 141. or the Bill of Sale, if the Vessel has been lately transferred; or from inquiry from the Master, who is bound to be acquainted with the name and domicile of the Owner. What are Enemy Vessels. 255. The Commander will be justified in treating as an Enemy Vessel: 1. Any Vessel in the service of the Enemy Government, as a Transport, even though her employment is the result of Duresse.5 2. Any Vessel under the Flag and Pass of the Enemy Government.6 3. Any Vessel sailing under a License of the Enemy Government.7 4. Any Vessel, of whatever Nationality, sailing under Convoy supplied by the Enemy Government.8 5. Any Vessel (though by her Papers appearing to be a British, Allied, or Neutral Vessel) owned in whole or in part by an Enemy.9 6. Any Vessel apparently owned by a person domiciled in British, Allied, or Neutral Territory, if such person has acquired the ownership by a Transfer from an Enemy made after the Vessel had started upon the Voyage during which she is met with, and has not yet actually taken possession of her. 10 7. Any Vessel11 apparently owned by a person domiciled in British, Allied, or Neutral Territory, if such person has acquired the ownership by a Transfer from an Enemy made at any time during the war or previous to the war but in contemplation of its breaking out, unless there is satisfactory proof 12 that the Transfer 5 Carolina, 4 C. Rob. 262. • Success, 1 Dod. 131. Vrouw Anna Catharina, 5 C. Rob. 161. Vigilantia, 1 C. Rob. 13. Vrouw Elizabeth, 5 C. Rob. 2. Fortuna, 1 Dod. 81. 9 7 Aurora, 8 Cranch, 203. Hiram, 8 Cranch, 444. Julia, 1 Gall. 594. 8 See Sampson Barney, cited in Maria, 1 C. Rob. 346. Primus, Spinks, 48. Industrie, Spinks, 56. 10 Herstelder, 1 C. Rob. 116. Danckebaar Africaan, 1 C. Rob. 111. Vrouw Margaretha, 1 C. Rob. 336. Baltica, 11 Moore P.C. 141. 11 Bernon, 1 C. Rob. 102. Welvaart, 1 C. Rob. 122. 12 Sechs Geschwistern, 4 C. Rob. 101. Baltica, 11 Moore P.C. 141. was bona fide and complete. In the event of such a Transfer being alleged, the Commander should call for the Bill of Sale, and also for any Papers or Correspondence relating to the same. 13 If the Bill of Sale is not forthcoming, and its absence is unaccounted for, he should detain the Vessel.14 If the Bill of Sale is produced, its contents should be carefully examined, especially in the following particulars:15 a. The Name and Residence of the Vendor. c. The Place and Date of the Purchase. j. The Service of the Vessel and the Name The Name and Residence of the Vendor are material to show whether or not he was an Enemy. The Name and Residence of the Purchaser are material to show whether or not he was a person domiciled in British, Allied, or Neutral Territory. The Date and Place of the Purchase are material to show whether or not the Transfer was made in contemplation or in consequence of the war. The Consideration-money is material, in case the Vessel is alleged to have been transferred by Sale, to show whether or not the transaction was bonâ fide. For if the transaction was professedly a Sale, then the fact that the consideration was nominal or wholly inadequate would be a just cause for suspicion. But a Transfer by way of gift or bequest will, if bona fide and complete, be as valid as a Transfer by way of Sale.16 13 Otto and Olaf, Spinks, 261. Benedict, Spinks, 320. 14 Caroline, Spinks, 256. Maria, Spinks, 321. 15 Juffrow Anna, 1 C. Rob. 126. Christine, Spinks, 83. Juffrow Elbrecht, 1 C. Rob. 127. Endraught, 1 C. Rob. 22. Hoop, 1 C. Rob. 129. 16 Benedict, Spinks, 316. F The Receipt for the Purchase - money should17 be called for in case the Vessel is alleged to have been transferred by Sale; but if there is proof that the Sale was bonâ fide and in other respects complete, the Transfer will be good, although no Receipt is forthcoming, and even although the Purchase-money has not in fact been paid.18 For the Prize Court does not consider any lien which an Enemy vendor may have upon a Vessel or Cargo or Freight for unpaid purchase-money to be a subsisting Enemy's interest rendering the Vessel liable to confiscation. However, the fact that the Purchase-money, instead of having been paid in Cash, has only been carried to an account, will raise the presumption of the Transfer being merely colorable, and such presumption cannot be rebutted, except by clear proof to the contrary. The terms of the Sale are material to show whether the transfer was complete. The Transfer would not be complete if the Sale was not absolute; as, if it contained a Power of Revocation, or a condition for a return of the Vessel at the close of the war, or a reservation of the profits of the Vessel, or of any control over her to be left in the hands of the former Owner.19 The Service of the Vessel, and the Name of the Master, both before and after the Transfer, are material to show whether or not the Transfer be a genuine one; for if the Service has continued unaltered by the Transfer, the Commander will be justified in holding the Transfer to be colorable only.20 The fact that the same Master is retained in command after the Transfer, raises a suspicion, but, standing alone, will not be conclusive that the Transfer was not bonâ fide.21 "Rapid, Spinks, 80. Christine, Spinks, 83. Ernst Merck, Spinks, 100. Soglasie, Spinks, 110. Johanna Emilie, Spinks, 12. Bernon, 1 C. Rob. 102. Sechs Geschwistern, 4 C. Rob. 100. 18 Ariel, 11 Moore P.C. 119. 19 Sechs Geschwistern, 4 C. Rob. 100. 20 Vigilantia, 1 C. Rob. 13. Endraught, 1 C. Rob. 19. Omnibus, 6 C. R. 71. 21 Benedict, Spinks, 316. Maria, 11 Moore P.C. 271. If the Transfer is bonâ fide and complete as between the parties, the fact that it was effected in fraud of the Revenue or the law of the Mercantile Marine of any Foreign Country will be immaterial.22 If the purchase was made through an Agent, the Letters of Procuration should be called for. 23 Lawful Condemnation; when to be presumed. 256. If a Vessel appear to belong to a Neutral, and there is evidence that she was formerly a British Vessel, and was captured by the Enemy, and taken into an Enemy's Port for Adjudication, the Commander will, in default of direct evidence to the contrary, presume that she has been regularly condemned in the Enemy's Court of Prize, and has thereby become the lawful property of the Neutral.24 |