or the sea-letter is the formal voucher of the ship's national character. Lord Stowell said that "a bill of sale is the proper title to which the maritime courts of all countries would look.” 1

The distinction made in municipal law between registered and unregistered vessels,2 i. e., American-built and foreign-built vessels, is not made in international law, and both classes, if owned by American citizens, are equally entitled to American protection. This has been reiterated many times by secretaries of State, secretaries of the Treasury and Attorneys General.3 The distinction between the various classes of vessels under the navigation laws of the United States is important only for commercial purposes, registered and enrolled vessels enjoying certain special privileges. The various documents issued to such vessels, such as the register, enrollment or license are not required by international law and are prima facie evidence only of ownership and therefore of the nationality of the vessel.5

The internationally conclusive character of a certificate of American registry came up for discussion in the celebrated Virginius case. This vessel had fraudulently obtained American registry by the fact that the American citizen in whose name she was registered made a

1 The Sisters, 5 Rob. 155.

As to the vessels entitled to registration see R. S., § 4132, as amended by the Act of August 24, 1912, 37 Stat. L. 562, the Act of May 10, 1892, 27 Stat. L. 27, and the Act of August 18, 1914, Public No. 175, 63rd Cong., 2nd sess., 698. Sections 4133 and 4134, R. S., have been repealed. The statutory provisions governing registry and recording are to be found in R. S. § 4131 et seq., 7 Fed. Stat. Ann., p. 3 et seq. The general effects of registry and the position of foreign-built but Americanowned vessels is discussed in Moore's Dig. II, § 322.

Moore's Dig. II, § 323.

As to the privileges of registered and the disabilities of unregistered vessels, see Moore's Dig. II, 1031–1033.

5 U. S. v. Armistad, 15 Peters, 518; 6 Op. Atty. Gen. 649.

* Moore's Dig. II, 895 et seq., 967, 980-893 and Wharton's Dig. III, § 327, pp. 147– 159, where the case is fully discussed. Attorney General Williams' opinion in 14 Op. Atty. Gen. 340 is supported by Wharton, III, § 409, who places certificates of naturalization and certificates of registration of a vessel on the same footing, namely, that their validity cannot be impeached by any foreign power, except by application to the United States, which is the sole judge of their validity. It is of course true that a foreign power which acts on its assumption that an American document has been fraudulently obtained or displayed, by a direct exercise of jurisdiction, assumes a grave responsibility.

false oath as to ownership, which in fact was vested in certain Cuban residents of New York. She carried a hostile expedition to Cuba, and while flying the American flag, was seized on the high seas by a Spanish war-vessel. The Attorney General held that notwithstanding her false registry, she was exempt from interference on the high seas by any foreign power. Spain had seized the vessel in self-defense, and the United States in effect admitted the right of Spain to question the validity of her registry by undertaking to dispense with any salute to the American flag if it were proved that she sailed under a false register and was not legally entitled to fly the American flag.1 The better opinion, therefore, would seem to be that a register or any other document of nationality or even the flag is only a prima facie and not an internationally conclusive evidence of nationality, although for belligerent purposes, "subject to the provisions respecting transfer to another flag, the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly."3 For a foreign power in time of peace to arrest on the high seas a vessel carrying the United States flag involves a grave responsibility, and in fact practically the only circumstance under which such arrest has been excused is where there was probable cause to believe that the flag had been assumed for piratical purposes. The question of proving the nationality of vessels in the absence of papers has frequently been before the United States courts in cases of piracy.5

§ 208. American Ownership the Test of Title to Protection.

The employment of an American vessel in the internal trade of a

1 This implied admission would probably not have been made to any third country. It will be recalled that the Virginius was owned by Cubans, Spanish subjects. 2 Woolsey, International law, § 214, quoted in Moore's Dig. II, 981. Article XI of the treaty of July 3, 1902 between the U. S. and Spain, however, provides that "All vessels sailing under the flag of the U. S. and furnished with such papers as their laws require, shall be regarded in Spain as U. S. vessels," and the reciprocal provision applies to Spanish vessels in the U. S.

Article 57 of the Declaration of London. The rules respecting transfer of flag have been referred to, supra, p. 255.

4 Wharton's Dig. III, § 408.

' E. g., U. S. v. Jones (1813), 3 Wash. C. C. 209. See also decisions under the Mutiny Act of 1835 and under the revenue laws and recording acts.

foreign country will subject it to the laws of that country and will suspend the privileges attaching to its American registry during the period of its foreign employment. But even when operating under a foreign coasting license, if owned by American citizens and sailing under the American flag, protection will be extended against unjust treatment, notwithstanding the foreign domicil of its owners.2

The fact that ownership alone and not registry or flag is the criterion of title to American protection is illustrated in the case of the Alliance, where an American citizen fraudulently registered his vessel in the name of a Dominican in order to take advantage of Dominican coasting trade laws. She carried the Dominican flag. Yet the Arbitral Commission of 1903 adjudicating claims of the United States against Venezuela held that the register being prima facie evidence of ownership only, the actual ownership of the vessel could be proved like any other fact, and inasmuch as she was owned by an American citizen, she possessed all the rights of American property.3

Another proof of the fact that American ownership of a vessel is the final criterion of its right to fly the American flag and of its title to American protection is clearly shown by the many cases of foreignbuilt vessels (navigating exclusively in foreign waters) which are owned by citizens of the United States. Numerous vessels of this character trade in the Far and Near East and in other parts of the world. These vessels cannot be registered, and they are under numerous commercial disabilities under the navigation laws of the United States, but if purchased of foreign owners and owned by citizens of

1 Mr. Seward, Sec'y of State, in Instructions printed in Moore's Dig. II, 1071– 1072. See as to the application of a Honduranean navigation law to foreign vessels, correspondence in For. Rel., 1909, p. 366 et seq.

2 Infra, p. 482. See, however, infra, p. 695.

The Alliance (U. S.) v. Venezuela, Feb. 17, 1903 (Bainbridge, U. S., for the Commission), Ralston 29, 31, citing U. S. v. Pirates, 5 Wheat. 184 and U. S. v. Amedy, 11 Wheat. 409. See Wharton's Dig. III, § 410. Yet where a certain bark flying the Hawaiian flag, but actually owned by an American citizen, was arrested for smuggling opium, the U. S. representative declined to intervene. Mr. Comly to Sec'y Evarts, Dec. 22, 1879, For. Rel., 1880, 592.

4 On the right of protection of American-owned foreign-built vessels see the elaborate opinions and Instructions set forth in Moore's Dig. II, § 323, and Wharton, III, § 410.

the United States, whether purchased of belligerents or neutrals during a war to which the United States is not a party, or in time of peace, they are entitled to the protection and flag of the United States as the property of an American citizen, provided, however, that the purchase shall have been made in good faith.1 Even a foreign captain of such a vessel would seem to enjoy American protection 2 and United States consuls abroad appear to have the same jurisdiction over the vessel and its equipment as in the case of any documented vessel of the United States.3

As will be seen hereafter, the United States often protects foreign corporations, the greater part of whose stock is held by American citizens. In a recent case in which the Department of State was requested to extend protection to a vessel, flying the Mexican flag, owned by a Mexican corporation the bulk of whose stock, it was alleged, was held by American citizens, the Department informed the American citizens that while there was some precedent which warranted the United States in extending protection to the corporation, no protection could be given to the vessel flying the Mexican flag.

For belligerent purposes, the rule is practically uniform that the nationality of a corporation owning a vessel is that of the state under whose laws it is incorporated and whose flag the vessel flies, regardless of the nationality of the stockholders.4

1 Article XX of the Consular Regulations, 1896, and the Treasury Regulations contain detailed provisions as to the sale and transfer of these undocumented vessels, the consul's responsibility as to the good faith of the transaction (§ 344, Cons. Reg.), and the record of the bill of sale, certificate to be issued, etc. (§ 343 Cons. Reg.). Sections 341-349 of the Consular Regulations are printed in Moore's Dig. II, 1038– 1041. See as to good faith of purchase, For. Rel., 1879, 180.

2 But where the captain of a vessel in Turkey was an Ottoman subject (The Nevada) the Department of State was of the opinion that it would not be warranted in withholding him from Turkish jurisdiction, nor in presenting a claim on his behalf to the Turkish government. The same rule governed the claims of Turkish officers serving on the vessel. But where the Captain was a national of a third state (Greece) the U. S. protected him against the assumption of jurisdiction by Turkey. The Texas v. Turkey, 1913-1914.

3 Moore's Dig. II, 1045. The fiction that a vessel constitutes in contemplation of law an extension of the territory of the country of its flag is ably discussed by Westlake, I, 175. See Field v. U. S., 27 Ct. Cl. 224.

* See cases set forth in article by Russell T. Mount in 15 Columbia L. Rev. (1915),

The principle that the citizenship of the actual owner of a vessel is the test of title to national protection is somewhat affected in time of war for purposes of prize law by the doctrine of trade domicil as conferring national character.1 But the neutral nationality of a vessel as determined by its flag is not lost by the fact that when captured it is under time charter to a subject of the enemy.2

It has been held on several occasions that the flag covers the cargo, and that the American shippers or owners of cargo on a foreign vessel or its charterers must look to the country of the flag for protection.3 The United States has nevertheless presented claims on the part of American shippers of cargo on or charterers of a foreign vessel which was wrongfully captured and condemned in a foreign prize court. If such American citizens were not thus protected, they might find themselves without any national protection, for the vessel is not bound, and by lack of knowledge as to ownership and conditions, is not generally in a position, to make claim for captured cargo. When ship and cargo, in the case of a vessel wrongfully captured or condemned, are owned by nationals of different countries, it is not unusual for their governments to make joint diplomatic representations.

§ 209. Proper Use of Flag.

Prize courts carefully examine into the legitimacy of the transfer 332-333. See also Continental Tyre and Rubber Co. v. Daimler (1915), 1 K. B. 893, and J. E. Hogg in 31 Law Quar. Rev. (1915), 170–172.

1

1 Infra, § 245. Ferrer (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2721 (dictum). 2 The Thea, Hurst & Bray, Russian & Japanese Prize Cases, I, 96, 108.

Mr. Bacon, Act'g Sec'y of State, to Mr. Furniss, Nov. 28, 1908, For. Rel., 1908, p. 440; Mr. Olney, Sec'y of State, to Mr. Reymershoffer, Oct. 24, 1896, Moore's Dig. II, 1003; Ferrer (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2721 (under terms of art. 16 of the treaty of 1831). But in the Nevada (U. S.) v. Turkey, the U. S. declined to present a claim on behalf of a Portuguese, Mr. Zouros, owner of cargo on this American vessel, and a similar rule was followed in the case of the foreignowned cargo on the American ship William P. Frye, sunk by the German cruiser Prinz Eitel Friedrich in Jan. 1915.

4 S. S. Arabia (U. S.) v. Russia, For. Rel., 1904 and 1905 and later correspondence; S. S. Oldhamia v. Russia, U. S. correspondence, 1910, Parl. Pap. Misc. No. 1 (1912), Cd. 6011; S. S. Antiope (U. S.) v. Japan, 1912-13. The first was a German, the two latter British vessels. The fact that American merchants shipped their goods on British vessels during the Civil War was held not to disentitle them to the protection of the United States. (The Pacific Mills v. U. S., No. 793, Moore's Arb. 4673.)