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6847. Q. (Mr. EMMOTT.) You state that the presence of even one alien among the owners of a ship would disqualify her from being registered as British? A. Yes.

6848. Q. Would that be the case in other countries, mutatis mutandis, of course?-A. On that I would rather refer, because I can not remember all the facts, to an article by Mr. Louis de Hart (which I think I quote in my memorandum) in the Journal of the Society of Comparative Legislation. He has an article there on the comparative law of different countries about the registration of shipping.

6849. Q. At present it is the case, is it not, that if there was a ship, one of the owners or part owners of which was an alien, she could not be registered under a foreign flag or under the British flag?-A. She could not be registered here, but a belligerent cruiser which came across her would, if one of her owners was an enemy, capture her, and the prize court would confiscate her.

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6884. Q. (Sir GERARD NOEL.) With regard to the changing of the flag, I have a little experience which I might quote. When I was on the Board of Admiralty it was part of my duty to do the transport business; on one occasion we wanted to take up a transport for some service, and there were two transports that we knew of which had been fitted for carrying horses or whatever was required; I asked about these and I found that they were sailing under the Spanish flag. I thought it was very extraordinary that two of our British ships which we had quite recently employed were sailing under the Spanish flag. They were carrying troops at the time to Cuba. This was seven or eight years ago, and before the war. I got the Admiralty to make inquiries at the board of trade as to whether we had any knowledge of these things or any means of preventing it, and I am afraid I can not tell you what the answer was; but it seemed to me that it was quite possible for an owner of a line of steamers to transfer his ships to another flag, practically without asking by your leave or with your leave?-A. It is a question for the capturing or visiting belligerent.

6885. Q. This was in peace time?-A. Yes, I know; and therefore the question which we have been discussing hardly arose. We have been discussing the question of the right of a belligerent cruiser when she visits a ship with suspicious documents on board, showing a doubtful change of nationality. I think that is a different question from the one you are considering as to the right of a Government in time of peace to prevent the transfer of its own vessels to another flag.

6886. Q. It might be the day before the war that you might have all these vessels transferred if it can be done in that easy Do you think it was a legal act?-A. I think it was all

manner.

right, unless done in anticipation of war. If it was found to be in immediate anticipation of war, and a belligerent had captured the vessel, she would have been confiscated.

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In the examination of Professor WESTLAKE6911. Q. (Lord BALFOUR, chairman.) Do have anything to add as to the question of the transfer from British owners of a ship flying the British flag to a neutral flag in time of hostilities? Do you regard the possibility of the transfer of a ship from the British flag to a neutral flag as a proximate danger, and a danger which you would apprehend would take place?—A. Yes, it would be a danger which would take place, but perhaps not in the early part of the war to the extent which has been often supposed, because the transfer of a ship from a belligerent flag to a neutral one, if it is to have the effect intended in the prize court, must be a genuine out-and-out transfer. If there is reason to suspect its genuineness, the prize court would inquire into it, and it might take a ship which was apparently neutralowned as being substantially still in British ownership. Especially at the commencement of war, there would be great difficulty in finding sufficient neutral capital to pay for genuine out-and-out transfers of British ships on a very large scale. I think that especially in the early part of a war the number of ships so transferred or apparently transferred, which would be brought in for adjudication in the hope that an inquiry by the prize court might discover the transfer not to be genuine, would be very great; and in such cases even if transfers were declared genuine, and the ships escaped condemnation, there would be great delay and expense to their owners. Consequently, I doubt very much whether in the early part of a war the rate of insurance upon the transferred ships would be so much lower than the rate of insurance upon British ships, as is commonly supposed. But if the war continued, that effect would of course wear away, and after two or three years of war, the rates of insurance on British ships and neutral ships would no doubt be very different indeed. 6912. Q. You referred just now to the prize court inquiring into the genuineness of a transfer. Do you think the prize court would go behind the actual nominal papers which are in the vessels? If the papers were correct, would they go into the question of bona fide ownership?-A. Undoubtedly they wouldthey would go into all the circumstances attendant on the sale.

6913. Q. Would you agree with the expression of opinion which I think I am not misrepresenting Professor Holland in saying he put before us to-day, that if all that they found was a single owner belonging to the nation-a British owner in this casewith which the other country was at war, the whole vessel would be condemned?-A. The French principle is not to look at the nationality of the owners, or the proportion in which they are

owners, but at the right to carry the flag. The nationality of the owners might come in incidentally in this way, that the country might make the right to carry its flag dependent upon the ships which are to enjoy that right being owned wholly, or in a given proportion, by subjects of that country. But directly as a motive of condemnation, the French courts would not regard the circumstances of ownership, but they would regard the right to carry the flag. The right to carry the flag must, of course, be a genuine one, and if the sale was found not to be a genuine one, that would impair the right to carry the flag, and the flag would be held then to be carried fraudulently.

6914. Q. By what machinery would the prize court get at the register of owners; would it not have to take the transfer papers as valid; how could they go behind them?-A. They might put interrogatories to the parties concerned as to the existence of any agreement attending the transfer.

6915. Q. Naturally; and there would be some hard swearing, no doubt? A. Yes.

6916. Q. Could the prize court effectively get at the documents which would prove the want of bona fides?-A. I think they would in a great many cases. A great number of ships in different wars have been condemned upon that ground.

Such a discussion shows that opinion varies upon many points. In another part of the same report is the following statement:

Nationality of vessels.-Before leaving the topic of the treatment to be accorded to different classes of ships, it may be well to add a few observations as to the tests which are decisive in respect of a ship's nationality, and as to the requisites for the valid transfer of a ship from one nationality to another. It appears that, as a general principle, believed to prevail on the Continent, as well as in Great Britain and the United States, the flag, pass, and certificate of registry with which a ship sails are, as evidence of nationality, conclusive against her, but not in her favor. A belligerent is, however, entitled to go behind these indicia, and to inquire into the nationality of the owner, or owners, of the vessel; or, according to the British system, into their commercial domicile, i. e., the country in which they, or any one of them, trades, or resides while trading elsewhere. It would seem that, should the ship belong to a company, her nationality will be that of the country in which the company has its corporate existence. A visiting cruiser will not, indeed perhaps can not, inquire into the nationality of the shareholders in the company, who, as was held in the old case of R. v. Arnaud, are not in law the "owners" of the ship. Although, therefore, the presence of even one alien among the owners of a ship would disqualify her for being regis

tered as British, she might be registered if owned by a British company every shareholder of which is an alien. (Report of the Royal Commission on Supply of Food and Raw Material in Time of War, Vol. I, p. 24, sec. 104.)

Conditions requisite to nationality. The conditions under which a vessel may gain full nationality vary in different states according to local laws and regulations. Most states place little or no restriction upon national construction as an essential for the acquisition of nationality. The United States, with few exceptions, requires national construction for ownership. Some other states impose somewhat similar restrictions, as in case of Portugal and Mexico. The United States statute prescribes in general that vessels must not only be built in the United States but must belong wholly to citizens thereof. National ownership in some form is quite generally required for national registry. Some countries require, however, that only a greater part of the vessel, or a certain proportion, as five-eighths, shall be owned by citizens. The regulations in regard to the nationality of the crew vary greatly. Some states impose no conditions; others require that officers and all the crew be of the nationality of the flag. Between these extremes are regulations such as the following: Captain, national; captain and one-fifth of the crew, national; one-fourth of all, national; the captain and one-third of the crew, national; the captain and the greater part of the crew, national; the captain and two-thirds of the crew, national; the captain and threefourths of the crew, national, etc.

Such variations make evident the need of some regulation of the method of transfer in order that the validity of the right to fly the flag may be sustained. Some states admit the right of the vessel to fly the national flag even though the vessel may not be allowed national registry.

Existing regulations.-Certain states have issued regulations in regard to the treatment of vessels in regard to whose right to fly the flag there may be any doubt. The regulations issued by Great Britain are the most complete and definite.

The British Manual of Naval Prize Law states that-The commander will be justified in treating as an enemy

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4. Any vessel apparently owned by a British, allied, or neutral subject, as hereinafter defined, 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.

5. Any vessel apparently owned by a British, allied, or neutral subject, 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 that the transfer was bona fide and complete. In the event of such transfer being alleged, the commander should call for the bill of sale, and also for any papers or correspondence relating to the same. If the bill of sale is not forthcoming, and its absence is unaccounted for, he should detain the vessel. If the bill of sale is produced, its contents should be carefully examined, especially in the following particulars:

(a) The name and residence of the vendor; (b) the name and residence of the purchaser; (c) the place and date of the purchase; (d) the consideration money and the receipt; (e) the terms of the sale; (f) the service of the vessel and the name of the master, both before and after the transfer. (P. 6.)

The British regulations also state that

The commander will be justified in treating as a British vessel

Any vessel apparently owned by a person having a neutral commercial domicile, if such person has acquired the ownership by a transfer from a British subject made after the vessel had started upon the voyage during which she is met with, and has not yet actually taken possession of her.

Any vessel apparently owned by a person having a neutral commercial domicile, if such person has acquired the ownership by a transfer from a British subject made at any time during the war, or previous to the war but in contemplation of its breakout, unless there is satisfactory proof that the transfer was bona fide and complete. (Manual of Naval Prize Law, 1888, p. 13.)

Of neutral vessels the British Manual of Naval Prize Law (1888) says:

A vessel apparently owned by a neutral is not really so owned if acquired by a transfer from an enemy, or from a British or allied subject, made after the vessel had started on the voyage during which she is met with, and the transferee has not actually taken possession of her.

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