CHAPTER IX 
DETERMINATION OF NATIONAL CHARACTER OF 
SHIPS 
ARTICLE 57 OF THE DECLARATION OF LONDON 
Sec. 275. Rule of Article 57. The determination of the 
liability of a ship to capture and confiscation involves the de- 
termination of the preliminary question of its national charac- 
ter. The liability of the cargo to capture may also depend upon 
the national character of the ship, as where its non-enemy 
character cannot be established, since in that case the cargo is 
presumed to have an enemy character if the ship which carries 
it is an enemy ship. There are two rules by which the enemy 
or non-enemy character of ships may be determined. The first 
is the nationality of the flag which the ship flies, or rather that 
which it is legally entitled to fly; the second is the nationality 
of the owners of the ship. The first rule is that which is enun- 
ciated in Article 57 of the Declaration of London which declares 
that “the neutral or enemy character of a vessel is determined 
by the flag which she is entitled to fly.” * It will be observed 
1 Prior to the enunciation of this rule there had been a divergence of 
spinion and practice between Great Britain and continental Europe regard- 
ing the test of enemy character. Great Britain had maintained that while 
a vessel sailing under an enemy flag was always good prize the nationality or 
rather the domicile of the owner in the case of ships flying neutral flags was 
the true test. In other words, the flag was conclusive only when it was an 
enemy flag; if it was a neutral flag it was not conclusive. In the latter 
case the Prize Court might go behind the flag and ascertain who was the 
owner and if it found that he was an enemy or was domiciled in enemy 
country the ship might be confiscated in spite of the fact that it flew, and 
had a right to fly, a neutral flag. If the owner, though an enemy subject, 
was domiciled in neutral territory his ship, unless flying an enemy flag, must 
be treated as a neutral ship; on the other hand, if he was a neutral subject 
but domiciled in enemy country his ship was regarded as an enemy ship. 
Continental opinion and practice, however, regarded nationality rather than 
domicile as the test. If the owner of the ship was an enemy subject, irre- 
spective of his domicile, his ship was treated as an enemy ship; if he was 
a neutral subject, no matter where domiciled, his ship was neutral. Com- 
pare as to this Bentwich, The Declaration of London, p. 109. 
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