residence with an intention not to return, but only such a residence for the purposes of trading as makes a person's trade or business "contribute to or form part of the resources of such country, and renders it therefore reasonable that his hostile, friendly or neutral character should be determined by reference to the character of such country."1 Such commercial domicil may differ from the actual civil domicil of the owner. For example, in Anglo-American law, his house of trade (commercial domicil) may be in neutral territory and the property at sea emanating from that house of trade escape belligerent capture, notwithstanding his civil domicil in enemy territory.2 The obverse rule has equal force. So an owner may have several houses of trade, some in neutral, some in enemy territory, according to which his property may be judged. The rule as to commercial domicil is applied even to friendly subjects. It may be added that all goods on enemy vessels are presumed to be enemy goods unless the contrary is proved.

The enemy character of a ship is determined by its flag, regardless of the nationality or domicil of the owner, provided she is sailing under it legitimately according to the municipal law of the state of the flag.3 A vessel under a neutral flag, however, may acquire enemy character or at least forfeit its neutral protection by taking part in the hostilities, by rendering unneutral service, by carrying contraband in excess of the permitted proportions, by the use of fraudulent means to evade just capture, by breaking or attempting to break a lawfully established blockade, or by forcibly resisting visit and search. Individuals may also lose their neutral character by rendering unneutral service to either belligerent. The questions involved in the transfer of enemy vessels

3

5

1 Dicey, Conflict of laws, 737. See also supra, p. 110.

4

2 Attention may be called to the peculiar rule of American prize law, according to which a partner's residence in the enemy's country will condemn his share in a house of trade established in neutral territory. The Antonia Johanna, 1 Wheat. 159. * Oppenheim, II, § 89; Westlake, II, 147. Arts. 56 and 57, Declaration of London. A reservation might, however, be made to the effect that the municipal law conferring the right to fly the national flag must not conflict with the rules of international law as to transfer of flag in time of war. See The Tommi and The Rothersand, condemned by British prize court, Oct. 12, and Oct. 15, 1914, L. R. [1914] Probate, 251.

4 Westlake, II, 153; Oppenheim, II, §§ 89, 406.

5 See Art. 17 of Convention V of the Second Hague Conference, and Oppenheim,

and goods to a neutral flag in contemplation of or during war have found a generally accepted solution in the rules formulated by the London Naval Conference of 1908.1 But the fact that a neutral individual furnishes supplies or makes loans to either belligerent from neutral territory does not affect his neutral character.2

103. War on Land.

The effects of war upon private property on land may now be considered. It has already been observed that neutral and enemy property in hostile territory are in general subject to the same treatment. Where such property is seized or destroyed for strategic reasons directly incident to belligerent action, the private owners need not be compensated for their losses.3 This rule is based on military necessity, and the difficulty of its application, as will be seen presently, arises in determining whether a particular seizure or destruction was prompted by imperious military necessity or constituted a deliberate appropriation of private property for public use, although perhaps indirectly connected with belligerent purposes. It has been noted that under certain circumstances neutral property merely temporarily in hostile territory, such as ships, may only be seized on payment of compensation, under the belligerent right of angary.4

II, § 88. The Industrie (German) and The Quang-nam (French), condemned by Japanese prize courts in Russo-Japanese war; Takahashi, S., International law applied to the Russo-Japanese war, New York, 1908, pp. 732–738.

1 Articles 55, 56 and 60 of the Declaration of London; Oppenheim, II, §§ 91, 92. The former conflicting rules are discussed by Westlake, II, 148 et seq. See the Sophia Rickmers, 61 St. Pap. 1091. For the opinion of the State Department rendered during the present European War concerning the transfer of merchant ships during war, see Sen. Doc. 563, 63rd Cong., 2nd sess. Translations from the works of leading authorities on the question of transfer of flag have been published in pamphlet form by the Legislative Reference Division of the Library of Congress, 1915. The Dacia case is now (March, 1915) pending before a French prize court. On that case, see a valuable article by Heinrich Lammasch in the Vienna Neue Freie Presse, January 22, 1915. A good discussion of the cases dealing with transfer of flag was undertaken by Russell T. Mount in connection with The Tommi and The Rothersand decisions of the British prize court, supra, in 15 Columbia L. Rev. (1915), 327–333.

Art. 18 (a) of Convention V. See Dept. of State circular Aug. 15, 1914, "Neutrality-contraband-seizure of ships and cargo."

* Bentwich, 27.

♦ Westlake, II, 119; Oppenheim, II, §§ 364, 365. Neutral cargo, even conditional

Injuries sustained by private property as a direct result of belligerent acts-battle, siege, bombardment or incidental thereto are not the subject of indemnification. The conduct of the belligerent, however, must conform to the laws of war, both in justification and execution. Private losses thus sustained in war are considered as due to necessity and force majeure. Vattel first stated what has since been accepted as the correct grounds for the non-liability of the state for these war losses "the public finances would soon be exhausted" and "these indemnifications would be liable to a thousand abuses." 1 Yet as an act of grace, as has been remarked, a state may, after peace, consent to compensate its subjects and even domiciled aliens for their losses, thus distributing the individual loss equitably over the whole nation. As between the belligerents and enemy subjects, the treaty of peace usually constitutes a final settlement of grievances, even of those arising out of a violation of the laws of war to the injury of enemy persons and property. Neutrals, however, even with respect to property in hostile territory, retain the right to make diplomatic claims against the offending belligerent for violations of the laws of war.

While the general rule as to war claims is that no compensation is due to private individuals, on account of injuries to their persons or property, resulting from legitimate acts of war, it is not always easy to determine what is a legitimate act of war. The Hague Regulations, and instructions issued by nations to their own armies, have established a set or code of rules according to which warfare shall be conducted. An examination of numerous claims brought before municipal and international courts, will, in connection with the Hague Regulations, furnish an approximate guide to the general rules governing compensation for injuries sustained in war.

Compensation is not due for damages sustained during actual military operations, whether caused by one belligerent or the other. Thus injuries sustained during hostilities-in battle or siege," in the track of

contraband, not destined to enemy forces, has at times been requisitioned under payment of compensation.

1 Vattel, Bk. III, ch. 15, § 232, p. 402.

2 Wilson (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3674; Blumenkron (U. S.) v. Mexico, July 4, 1868, ibid. 3669; Riggs (U. S.) v. Mexico, ibid. 3668; Castel (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3710; Padron (Spain) v. Venezuela, Apr. 2, 1903,

3

war,' during bombardment,2 or attacks on towns, and in similar circumstances connected with the immediate necessities of armed conflict and subserving some proper military end are not subject to in

4

Ralston, 923; Petrocelli (Italy) v. Venezuela, Feb. 13, 1903, ibid. 762; Bembelista (Netherlands) v. Venezuela, Feb. 28, 1903, ibid. 900; Rule 1 of the Mixed Claims Commission of Nicaragua, 1911, Managua, 1912. See also Amer. St. Pap., Claims, 199, Feb. 15, 1797.

1 Vattel, Bk. III, ch. 15, § 232; Oppenheim, II, § 151; U. S. v. Pacific R. R., 120 U. S. 233; Puerto Cabello Ry. (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 458; Bembelista (Netherlands) v. Venezuela, ibid. 900; Rule 8 of Spanish Treaty Claims Commission, Final Report, May 2, 1910, pp. 4-5.

2 Dutch bombardment of Antwerp 1830, 30 St. Pap. 212 et seq. Numerous cases of bombardment, in which compensation by the bombarding belligerent was uniformly denied, are set out in Moore's Dig. VI, §§ 1168–1170. See also Dutrieux (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3702; Cleworth (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3675; Tongue, ibid. 3675; Meng (France) v. U. S., Jan. 15, 1880, ibid. 3689, 3697; Perkins (Gt. Brit.) v. Chile, Trib. Anglo-Chileno, 1891, I, 34; Strobel's report, Moore's Arb. 4930-36, parag. 1 and 18, For Rel., 1896, 35; Amer. Elec. L. and P. Co. (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 36; Bembelista (Neth.) v. Venezuela, Feb. 28, 1903, ibid. 901; Guerrieri (Italy) v. Venezuela, ibid. 753. See, however, the Colin case, Germany v. France, 1888, 15 Clunet, 241. For limitations of the rule, see note 1, p. 258, and 1, p. 259, infra.

Schultz (Mex.) v. U. S., July 4, 1868, Moore's Arb. 2973; Wyman (U. S.) v. Mexico, ibid. 2978; Cleworth (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3675; Volkmar (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 258.

* All destruction and damage to enemy property for purpose of offense and defense is considered necessary and hence lawful. Oppenheim, II, § 150.

Soldiers passing over land in belligerent area and injuring crops. Shattuck (U. S.) . Mexico, July 4, 1868, Moore's Arb. 3668; Cole (U. S.) v. Mexico, ibid. 3670; Sterling (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3686.

Cutting of timber to clear away obstructions, erection of fortifications, etc., in the enemy's country. Barclay and other cases (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 50, Moore's Arb. 3678.

Seizure or destruction of property for the public welfare. Heflebower v. U. S., 21 Ct. Cl. 229, 237. See also Sen. Doc. 318, 57th Cong., 1st sess., pp. 19, 36, 37; e. g., destruction of buildings as sanitary measure, Jaragua Iron Co. v. U. S., 212 U. S. 297, 306, and Hardman (Gt. Brit.) v. U. S., Aug. 18, 1910, 7 A. J. I. L., 897. (The arbitral court suggested that voluntary payment might be made by U. S.)

Seizure and detention of private enemy vessel after occupation of enemy port, for use of army-the doctrine of immunity of private property not followed. Herrera v. U. S., 222 U. S. 558, 572; Diaz v. U. S., 222 U. S. 574; Costa (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3724.

Destruction of property useful to the enemy for military purposes. Cox (Gt. Brit.) and Smythe (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3678. See also Oppenheim, II, § 152; 11 Op. Atty. Gen. 378; U. S. v. Pacific R. R., 120 U. S. 227;

demnity, the necessary condition being that such act shall have been in accordance with the rules of war.

For example, in the matter of bombardment, definite regulations have been established which limit the principle of non-liability. If the bombardment is directed against an unfortified and undefended part of the town, or if it may be regarded as a wanton or unnecessary act, liability is incurred.1 The legal presumption, however, is in favor of the regularity and necessity of governmental acts. The Hague Regulations and Convention IV of the Second Hague Conference have established important limitations on the justification, legitimacy, and

Magoon's Rep. 345 and 615; Cotton Claims (Gt. Brit.) v. U. S., Moore's Arb. 3679– 82. See also Sen. Doc. 2, 42nd Cong., spec. sess.; Giles (U. S.) v. France, Jan. 15, 1880, Moore's Arb. 3703 (dictum).

The owner of property seized and destroyed to prevent its falling into the hands of the enemy is not entitled to compensation if the danger was immediate and impending, and its capture by the enemy be reasonably certain. Sparhawk v. Respublica, 1 Dallas, 362; 1 Op. Atty. Gen. 255; Final Report of Spanish Treaty Cl. Com. May 2, 1910, p. 12; Cotton Claims (Gt. Brit.) v. U. S., Moore's Arb. 3679. See H. Rep. 262, 43rd Cong., 1st sess., 44 et seq. Cotton was seized in the Southern states during the Civil War by the Union troops, as constituting resources of the enemy, and liability denied. Moore's Dig. VI, 895 and cases cited at p. 901. But where the danger does not appear immediate, the destruction is regarded merely as the appropriation of private property for public use for which an indemnity is due. Infra, note 2, page 262. The state may and often does waive its exemption from liability. Seizure of money belonging to enemies on deposit in occupied territory in 1863 (probably unlawful to-day, except as legal contributions). New Orleans v. S. S. Co., 20 Wall. 394.

Other acts of military necessity. Killing of animals, opinion of Dec. 22, 1905 of Judge Advocate Gen. of the Army. Howland's Digest, 250. See also ibid. 251, 253, 254 and paragraph 15, Gen. Orders 100. Burning of cane by Spanish forces in Cuba, Casanova (No. 33), Spanish Tr. Cl. Com. Ibid., burning of buildings when a legitimate war measure, Sen. Ex. Doc. 85, 42nd Cong., 2nd sess.; Bacigalupi (U. S.) v. Chile, No. 42, May 24, 1897, Rep. of Commission, 1901, 151.

Property destroyed in preparation for attack or defense. Jardel (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3199; opinion of Judge Adv. Gen. May 1, 1906, Howland, 252; Parham v. Justices, 9 Georgia, 341.

1 Barletta (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 754; Cuneo (Italy) v. Chile, Jan. 4, 1883, Moore's Arb. 4929, Tchernoff, 333. See also obiter remarks in De Lemos (Gt. Brit.) v. Venezuela, Ralston, 304, 314 (counsel), 319, and in Guerrieri, ibid. 753 and Bembelista, ibid. 901; Perrin v. U. S., 12 Wall. 315, 4 Ct. Cl. 543; Hall, 532; Samoan claims arising out of unlawful bombardment of Apia by Great Britain and United States, H. Doc. 1257, 62nd Cong., 3rd sess.