"But whereas neither the nationality nor the commercial standing of Breitung nor his alleged enterprises, any more than the purpose he claims to have had of acquiring at a satisfactory price a thing of which he was in need, constitute in this case a sufficient proof that the transfer of the Dacia to the American flag was not made to avoid the risk of capture;

"Whereas none of Breitung's allegations have any bearing upon the circumstances under which the Hamburg-American Line, as far as it was concerned, sought to sell and did sell the Dacia;

"Whereas, in this regard, the mere affirmation of a director that the ship had been sold because it was old, is insufficient proof, when it is shown on the other hand that it was lying idle because of the risk of capture and that the transfer to the American flag was the condition upon which it was chartered and sold;

"Whereas, according to the claimant, the proof of the sincerity of the transfer and the existence of a real interest in the acquisition, are sufficient to make the transfer to the neutral flag valid as against a belligerent;

"Whereas the claimant has invoked on this point an opinion given by Mr. Cone Johnson, solicitor of the Department of State, on August 7, 1914 [supra, p. 365]. . . .

"Whereas, preliminary to the adoption of Article 56 of the Declaration of London, certain proposals had been made with a view to subordinating the validity of transfers of flag, as far as belligerents were concerned, to the sole consideration of good faith, whereupon a difference of opinion had been manifested with respect to the meaning of the expression 'good faith' proposed as the criterion of validity;

"Whereas the delegation of the United States apparently held that good faith was present if the agreement to transfer was genuine and complete and free from any fiction or irregularity, while the German and British proposals implied by 'good faith' the absence, among the motives for the transfer, of intention to withdraw the ship from the effect of the right of capture;

"Whereas, on this point, according to these propositions as well as according to the original text proposed for adoption by the Naval Conference at London under No. 35 of the bases of discussion, the transfer could be considered valid only when there was

reason to believe that it would also have taken place if war had not occurred (Blue Book, pp. 183 and 260);

"Whereas it is in this latter sense that the framers of the Declaration of London have expressed themselves when adopting the text of the aforesaid basis of discussion, while at the same time referring to the possibility of proof to the contrary, except in certain cases when there was an absence of interest in the actual transactions;

"Whereas the Report, presented to the Conference in support of the rules adopted, especially Article 56, expressly states that a transfer, to be valid as against a belligerent, must be one not due to the fact of war (Blue Book, pp. 326 and 212); for example, a transfer through inheritance;

"Whereas this view has been adopted by the German legislation (Prize Ordinance of September 30, 1909, chap. II, art. 12) according to which the transfer is valid only if the captor is convinced that 'the transfer would have equally taken place if war had not broken out for instance, as a result of inheritance or a contract for construction'; by the Austrian legislation (Service Regulations for Naval Warfare, May 2, 1913, 3, art. III) which reproduces purely and simply the text of Article 56 of the Declaration of London; by the Russian legislation (Prize Regulations of March 27, 1895, art. 7), according to which it must be proved that the transfer did not have for its object the protection of enemy property; by the British legislation which has applied the Declaration of London to the conduct of the war in the same terms as the aforesaid French decree of November 6, 1914 (Order in Council of October 29, 1914); and by the Italian jurisprudence and legislation (Decree of June 3, 1915);

"Whereas, also, in the language of the Italian Prize Commission in 1912 (Case of The Aghios Georghios, Proceedings of the Royal Prize Commission, Italo-Turkish War, vol. 1, p. 197), 'if capture is the penalty by means of which the belligerent forbids to enemy merchant vessels the use of the sea, it follows that any transaction whatever, even though proceeding from legitimate interest, can be considered by the belligerent only as in defraud of his rights and consequently void, if its immediate tendency is to withdraw the ship from this penalty.'

"Whereas, in this case, apart from the singular character of the bill of sale which was found on board and which was alleged to have been executed on December 17 or 19, 1914, by the Hamburg American Line and Breitung, who had not signed it himself nor had any one on his behalf, with whom the director of the aforesaid company confesses never to have had dealing and whom he declares he never met—even admitting the regularity of the purchase of the Dacia by Breitung and even supposing the sincerity of the transfer of the ship by the company to Egon von Novelly and by the latter to Breitung - it is shown, as was brought out in other analogous cases (The Jemmy, 4 Rob. 31; 1 English Prize Cases, 331; The Benito Estenger, U. S. Rep. 176, p. 568; Story, Notes on the Principles and Practice of Prize Courts, p. 63) that not only had the ship, after transfer, 'continued its former trade with the enemy,' but at the moment of capture was engaged in the very voyage for which it had been chartered when it was under the German flag and for which it had been transferred to the neutral flag.

"Whereas an apparent transfer to a neutral flag for the purpose of permitting trade with the enemy and withdrawing the ship from capture cannot be valid as against belligerents;

"Whereas the court has jurisdiction over the validity of the capture of the ship only and consequently does not pass judgment upon the cargo; 1

"It is decided:

"That the capture of the steamship Dacia, made by the auxiliary cruiser Europe on February 27, 1915, is adjudged good and valid prize, together with its tackle, furniture, equipment, and supplies of all kinds, to be distributed among those entitled to it in conformity with the laws and regulations in force;

"The articles and effects, being the personal property of the captain and the crew and not contraband, will be restored to those entitled to them." 2

(Revue Générale de Droit International Public, vol. XXII [1915],

1 The French Government purchased the cotton through a special appropriation. 2 After her sale by the prize court, the Dacia was renamed the Yser, and in November, 1915, was torpedoed and sunk in the Mediterranean by a German submarine.

No. 6. Jurisprudence en matière de prises maritimes, pp. 34-35, 52-53, 83-90; Senate Documents, 63d Cong., 2d Sess., No. 563; 63d Cong., 3d Sess., No. 979.)

830. CONTRABAND

THE JONGE MARGARETHA

High Court of Admiralty, February 5, 1799

THIS was a case of a Papenberg ship, taken on a voyage from Amsterdam to Brest with a cargo of cheese.

The Court (Sir William Scott): "I have many cases in which cheese has been restored; but are there any that apply to the circumstance of a destination to ports of naval equipment? I shall defer this case, that more precedents may be examined; and in the mean time I direct an inquiry to be made as to the particular nature and quality of these cheeses, by some officer of the king's

stores.

"On the 20th of March the store-keeper's certificate was produced, stating them 'to be such cheeses as are used in English ships' stores, when foreign cheeses are served, and such as are used in French ships almost exclusively of others.""

Sir William Scott (Lord Stowell) delivering the judgment: "There is little reason to doubt the property in this case, and therefore passing over the observations which have been made on that part of the subject, I shall confine myself to the single question of law: Is this a legal transaction in a neutral, being the transaction of a Papenberg ship carrying Dutch cheeses from Amsterdam to Brest or Morlaix, as it is said, but certainly to Brest? Or as it may be otherwise described, the transaction of a neutral carrying a cargo of provisions, not the product and manufacture of his own country, but of the enemy's ally in the war-of provisions which are a capital ship's store - and to the great port of naval equipment of the enemy.

"If I adverted to the state of Brest at this time, it might be no unfair addition to the terms of the description, if I noticed, what was notorious to all Europe at this time, that there was in that port a considerable French fleet in a state of preparation for sallying forth on a hostile expedition; its motions at that time watched with great anxiety by a British fleet which lay off the harbor for the purpose of defeating its designs. Is the carriage of such a supply, to such a place, and on such an occasion, a traffic so purely neutral, as to subject the neutral trader to no inconvenience?

"If it could be laid down as a general position, in the manner in which it has been argued, that cheese being a provision is universally contraband, the question would be readily answered: but the Court lays down no such position. The catalogue of contraband has varied very much, and sometimes in such a manner as to make it very difficult to assign the reason of the variations; owing to particular circumstances, the history of which has not accompanied the history of the decisions. In 1673, when many unwarrantable rules were laid down by public authority respecting contraband, it was expressly asserted by Sir R. Wiseman, the then King's Advocate, upon a formal reference made to him, that by the practice of the English Admiralty, corn, wine, and oil, were liable to be deemed contraband. 'I do agree,' says he, reprobating the regulations that had been published, and observing that rules are not to be so hardly laid down as to press upon neutrals, 'that corn, wine, and oil, will be deemed contraband.'

"These articles of provisions then were at that time confiscable, according to the judgment of a person of great knowledge and experience in the practice of his court. In much later times many other sorts of provisions have been condemned as contraband. In 1747, in the Jonge Andreas, butter, going to Rochelle, was condemned. How it happened that cheese at the same time was more favorably considered, according to the case cited by Dr. Swabey [representing the claimant], I don't exactly know. The distinction appears nice. In all probability the cheeses were not of the species which is intended for ship's use. Salted cod and salmon were condemned in the Jonge Frederick, going to Rochelle, in the same year. In 1748, in the Joannes, rice and salted herrings were condemned as contraband. These instances show that articles of