ruled that the onus of giving satisfactory proof of the sale was on the claimant, and without it the court could not restore, even though it was not called on to pronounce affirmatively that the transfer was fictitious and fraudulent. In that case the vessel was condemned partly because of absence of proof of payment, Dr. Lushington saying: "We all know that one of the most important matters to be established by a claimant is undoubted proof of payment."

To the point that the burden of proof was on the claimant see also The Jenny, 5 Wall. 183, 18 L. Ed. 693; The Amiable Isabella, 6 Wheat. 1, 5 L. Ed. 191; The Lilla, 2 Cliff. 169, Fed. Cas. No. 15,600; Story's Prize Courts, 26.

We think that the requirements of the law of prize were not satisfied by the proofs in regard to this transfer, and on all the evidence are of opinion that the court below was right in the conclusion at which it arrived.

Decree affirmed.

Mr. Justice SHIRAS, Mr. Justice WHITE, and Mr. Justice PECKHAM dissented.

THE DACIA.

(French Council of State, 1916. Journal Officiel, January 14, 1917, p. 498.) The President of the French Republic, acting on the report of the Division of Legislation, Justice, and Foreign Affairs,

In view of the summary appeal and the detailed memorandum, presented by Mr. Breitung, of Marquette, Michigan, U. S. A., and registered with the Secretary General of the Council of State, September 23, 1915, and February 23, 1916, petitioning for annulment of a decision of August 3 and 4, 1915, of the Prize Court, which decreed good and valid the capture of the steamer Dacia by the French auxiliary cruiser Europe on February 27, 1915,

Wherein the stated legal grounds of the appeal are that under article 56 of the Declaration of the Naval Conference of London of February 26, 1909, which was declared applicable by France to the present war, the transfer to a neutral flag of a vessel that was enemy property is valid and can be sustained as against the belligerents even if the transfer is made after the outbreak of hostilities, provided that it is proved that the purchaser of the vessel took a substantial and legitimate interest, and that the passing of the title and the transfer of flag were not effected for the purpose of evading the consequences that enemy character of a ship involves; that in fact the petitioner acquired the Dacia only because the steamer was bought at an advantageous price and was necessary to him to carry on his maritime business; that, moreover, he can not be required to prove that the vendor, the Hamburg-American Company, was influenced by considerations not connect

ed with the risk of capture; that it had, moreover, a certain interest in getting rid of a ship that was already old; that the fact that a contract had been made by a business agent for the carriage of a cargo of cotton to Bremen by the Dacia while still under the German flag and before the petitioner had bought it cannot prejudice the latter; that said contract to which he was not a party can not be pleaded against him, and that the Dacia, as soon as it became his property, was laden for Rotterdam, a neutral port; that, moreover, the fact that a vessel, after transfer of flag, continues to ply on the same routes as before, does not raise a presumption that the transfer is null, in accordance with the decision made when the Declaration of London of 1909 was drafted; wherefore, the petitioner asks that the transfer of the Dacia from the German flag to the American flag be declared valid, and that the French government pay the petitioner: (1) The value of the vessel illegally seized, and of its different fittings and furnishings, the total to be fixed by inventory; (2) the sum of 300,000 francs by way of damages for the unjustified capture of the vessel, according to article 64 of the Declaration of London; (3) damages to be fixed by inventory to repair the loss sustained as a consequence of the detention of the vessel, at the rate of $2,000 a day from February 27 to May 10, 1915, and according to a figure to be determined after the latter date; (4) a sum to be fixed later for freight and demurrage; * *

*

In view of the Declaration of London of February 26, 1909, concerning the law of maritime warfare, together with the Decree of November 6, 1914, applying the rules of the said Declaration with certain amendments and additions;

*

In view of the Decree of July 7, 1916, repealing that of November 6, 1914;

Whereas, the Prize Court, in declaring good and valid the capture of the steamer Dacia by the French, auxiliary cruiser Europe on February 27, 1915, was of opinion that the transfer to a neutral flag of this vessel, bought from the German Hamburg-American Navigation Company by Mr. Breitung, an American citizen, could not, having regard to the circumstances in which it was made, be operative as against the belligerents, by reason of the provisions of article 56 of the Declaration of London of February 26, 1909, as follows: "The transfer of an enemy vessel to a neutral flag effected after the outbreak of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences to which an enemy vessel, as such, is exposed;" * *

Whereas, it is unnecessary to pronounce upon the regularity of the transfer of title of the Dacia or that of its registry under the American flag, as it does not appear anywhere in the examination nor in any evidence produced by Mr. Breitung that the sale of the Dacia to him by the Hamburg-American Company was not caused principally by fear of seeing the vessel seized and captured by the navies of the

Allied Powers from the moment of its first voyage; whereas, a contrary presumption arises especially, first, from the fact that the HamburgAmerican Company, whose commercial fleet was by reason of the war partly laid up in American ports, had an interest to gain in alienating the units composing this fleet to the advantage of ressortissants of a neutral state, the validity of such sale being conditioned on an authorization for the vessel to fly the flag of the United States; and secondly, from the fact that the contract of affreightment of January 17, 1915, between Mr. Breitung and the firm of Tom Owens & Co. to transport a cargo of eleven thousand bales of cotton destined for Germany on the Dacia was only a confirmation, with a few modifications, of a contract of the same nature entered into through a Mr. Egon von Novelly the preceding December 9 before the sale of the vessel, respecting the same quantity of cotton to be shipped to Bremen on the Dacia for the account of the same shippers; that the circumstance relied upon by the petitioner that according to the agreement of January 17, 1915, the vessel was laden not for the port of Bremen but for the neutral port of Rotterdam, did not at all change the nature of the transaction, as the final destination of the cargo was not modified;

Whereas, in these circumstances, the Prize Court has correctly given judgment that such a transfer to a neutral flag, having for its object to permit enemy trade and to withdraw the vessel from the risk of capture, was not admissible against the captor state, and that therefore Mr. Breitung had no grounds on which to rest a claim for the annulment of the decision decreeing the capture of the steamer Dacia good and valid;

Having heard the Council of State, decrees:

Article 1. The appeal of Mr. Breitung is dismissed.

* 59

59 In The Dacia, French Prize Court, 1915, Journal Officiel, September 28, 1915, p. 6914, from which an appeal was taken the learned reporter, Mr. Henri Fromageot had said:

"But whereas, when, at the time article 56 of the Declaration of London was being prepared, certain proposals had been made to condition solely upon good faith the validity of the transfer of the flag with respect to belligerents, a difference of opinion was manifested on the subject of the meaning of the term 'good faith' proposed as the criterion of validity; whereas, the United States delegation appeared to hold that good faith existed if the contract relating to the transfer was sincere and definitive, and bore no evidence of anything fictitious or irregular; but the German and English interpretations of good faith included the absence, among the reasons of the transfer, of any intention to protect the ship from the consequences of the right of capture; whereas, on this point, according to the interpretations, as well as according to the original text offered for adoption at the Naval Conference of London, as No. 35 of the subjects for discussion, the transfer could be regarded as valid only if there was reason to believe that it would have been effected just the same had the war not occurred (Blue Book, pp. 183 and 260); "Whereas, it is the latter interpretation that the framers of the Declaration of London decided upon in adopting the text of the above mentioned topic of discussion, at the same time indicating the possibility of evidence in rebuttal, except in certain cases not bearing upon the present case;

"Whereas, the report presented to the conference with regard to the vari

CHAPTER XVIII

ADJUDICATION OF PRIZE

SECTION 1.-CONDEMNATION1

THE HULDAH.

(High Court of Admiralty, 1801. 3 C. Rob. 235.)

This was one of several cases of ships and cargoes carried into St. Domingo, and proceeded against in a court of admiralty, which was held not to be vested with competent authority to proceed in prize causes. In consequence of that mistake, original proceedings were

ous provisions, especially Article 56 of the Declaration, clearly indicated that the transfer in order to be valid as against belligerents should not have been actuated by the existence of the war (Blue Book, p. 326, and page 212), but, for example, by inheritance;

"Whereas, this view was adopted by German legislation (Prize Regulations of Sept. 30, 1909, c. 2, art. 12, Reichsgesetzblatt, August 3, 1914) according to which the transfer is valid only when the captor is convinced that the transfer would have been made even had the war not broken out, for example. through inheritance or building contract'; by Austrian legislation (Service Regulations for the I. and R. Navy, May 2, 1913, 3 art. 3) which simply reproduces the text of article 56 of the Declaration of London; by Russian legislation (Prize Regulations, March 27, 1895, art. 7) according to which it must be proved that the transfer was not made in order to protect enemy property; by British legislation, which made the Declaration of London applicable during the war in the same terms as the French decree of November 6, 1914, cited above (Order in Council, Oct. 29, 1914); and by Italian jurisprudence and legislation (Decree of June 3, 1915, Gaz. Uff. No. 150 of June 15, 1915);

"Whereas, it is proven that not only had the ship, after its transfer, continued its commerce with the enemy as before, thus bringing it within other analogous cases (case of The Jemmy in England, July 17, 1801, 6 Rob. 31, 1 English Prize Cases, 337; case of The Benito Estenger, in the United States, March 5, 1900, 176 U. S. 568, 20 Sup. Ct. 489, 44 L. Ed. 592; Story, Notes on the Principles and Practice of Prize Courts, [Pub. by Pratt, 1854] p. 63), but that at the time of its capture it was accomplishing the very voyage for which it had been chartered when it was under the German flag and in view of which it had been transferred to a neutral flag;

"Whereas, such a transfer to a neutral flag with the object of carrying on enemy trade and of protecting the ship from capture cannot be valid against belligerents.

*

In the case of The Daksa, L. R., [1917] App. Cas. 386, it appeared that a sale had been made previous to war, in order to evade capture by the French. As the sale had not been made in order to escape capture at the hands of the British, it was held to be valid and the vessel released.

1 It was the practice of the High Court of Admiralty to restore property under the amount of one hundred pounds without the expense of a formal claim, to avoid disproportionate expenses. In The Mercurius, 5 C. Rob. 127 128 (1804), the counsel requested the court "to allow the same indulgence to

instituted afterwards in the High Court of Admiralty, on the petition of the claimants, by a monition calling on the captors to proceed to adjudication.

The claim, in the present case, was not given till a year and nine months after the sentence of condemnation passed in the court of St. Domingo, The captors appeared under protest.

In support of the protest, the King's Advocate and Arnold. It will be a case of great hardship on the captors, if they should be obliged to answer at this distance of time, when distribution has actually been made. The court of St. Domingo, under which they have hitherto proceeded, was properly constituted as a civil Court of Admiralty, and his Majesty's instructions were addressed to it as a prize court; but, by a mistake, no warrant had been issued to give it a prize jurisdiction against France and Holland, although there had been a prize warrant against Spain. Owing to this oversight alone it is, that the acts which have been done therein are mere nullities. The captors knew nothing of this defect of jurisdiction; they proceeded regularly, and obtained condemnation. *

*

On the other side, Lawrence and Swabey.

* * * The court has already determined that the prize proceedings of the court of St. Domingo are to be taken as nullities; and that all claims for property carried in there are to be considered as if no proceedings had taken place. It is a fundamental principle of maritime jurisprudence, that the claimant was bound to go to the tribunal to which the captor had carried his property. He could not be supposed to know whether it was a competent jurisdiction or not; it lies on the captor to institute right proceedings in a proper place; and if he does not, from whatever cause it may arise, the claimant cannot be

a property estimated only at 100 guineas." Sir William Scott, however, held that "it was necessary to confine this indulgence to some definite amount; that whatever was the sum fixed, there would be always other sums just exceeding that, which might not be distinguishable in principle; at the same time that it was necessary to adhere to the rule laid down."

"Treating the proceedings in the District Court as in admiralty, they are without validity. The admiralty jurisdiction of the District Court extends only to seizures on navigable waters, not to seizures on land. The difference

is important. as cases in admiralty are tried without a jury, whilst in cases at law the parties are entitled to a jury, unless one is waived. United States v. The Betsey, and Charlotte, 4 Cranch, 443, 2 L. Ed. 673 (1808); The Sarah, 8 Wheat. 391, 5 L. Ed. 644 (1823)." U. S. v. Winchester, 99 U. S. 372, 374, 25 L. Ed. 479 (1878), per Field, J.

"By the law of nations, as recognized and administered in this country, when movable property in the hands of the enemy, used, or intended to be used, for hostile purposes, is captured by land forces, the title passes to the captors as soon as they have reduced the property to firm possession; but when such property is captured by naval forces, a judicial decree of condemnation is usually necessary to complete the title of the captors. 1 Kent, Com. 102, 110; Halleck's International Law, c. 19, § 7, and chapter 30, § 4; Kirk v. Lynd, 106 U. S. 315, 317, 1 Sup. Ct. 296, 27 L. Ed. 193 (1882)." Oakes v. U. S., 174 U. S. 778, 786, 19 Sup. Ct. 864, 43 L. Ed. 1169 (1898), per Gray, J. See Commodore Stewart's Case, p. 1039.