That in an affidavit, dated New York, March 22, 1915, the Manager of the Hamburg-America Line declared under oath that he had not heard of this transfer until later and had never met Edward N. Breitung nor spoken to him;

That the alleged bill of sale, dated December 17, 1914, deposited with the United States authorities, carried by the vessel and appealed to by Breitung, mentions him as co-contractor with the Hamburg-America Line, but this document is not signed by him nor by any person for him. Considering that on December 16 and 21, 1914, according to copies of documents appended to a statement made by Breitung to the United States Senate (Senate Document No. 979, 63rd Congress, 3rd session, p. 15), a Mr. Max Breitung sent to the Guaranty Trust Co. of New York, two checks to the order of the Hamburg-America Line amounting to $165,000; that this payment corresponds in amount and in date to the price agreed upon for the Dacia, which sum was to be reimbursed in default of transfer to the American flag; that, on the other hand, it is proved by the invoices of Tom B. Owens, dated Fort Worth, Texas, December 29, 1914, amounting to $727,762.98 (covering cost, insurance and freight), that on this date Owens forwarded to the bank called the Guaranty Trust Co. of New York his drafts on the above-mentioned German banks, the Deutsche Bank and the Diskonto-Gesellschaft, in payment for the cotton sold by him, cost, insurance and freight at Bremen, to be shipped by the Dacia;

That Owens did in fact send to the said Guaranty Trust Co. the invoices, bills of lading and insurance policies and that the said bank paid him 75% of the value;

That the said sale involved the transfer of ownership of the goods to the German buyers upon shipment, subject to the guarantee of the amount advanced by the Guaranty Trust Co., to be refunded by the German purchasers;

Considering that it is under these conditions that on January 4, 1915, the Dacia, said to belong to Edward N. Breitung, was registered at Port Arthur, Texas, according to a temporary certificate dated at the said port and on the said day; that on January 7th the ship was taken to Galveston, Texas, where the next day it began to take on the cargo of cotton mentioned above; that on January 17th an agreement was drawn up between Breitung and Owens concerning in particular additional time for loading and the conditions of discharge; that, on January 21st, it finished loading and on this same date an insurance against the risk

of war was taken out in the name of the Guaranty Trust Co. for $715,000; that on January 22, 1915, the bills of lading were signed bearing on the margin a note of the freight paid in advance, amounting in all, according to the bills of lading, to $172,669, an amount $7,669 in excess of that paid for the ship; and that, finally, after a delay of more than a week, apparently taken up, according to the ship's book, in sending orders and special instructions, and according to Breitung due to a delay on account of freight charges, the ship sailed January 31, 1915, to coal at Norfolk, there to receive its final instructions and sail thence for Europe;

Considering that Breitung in his memorandum called attention to the fact that the ship was bound for Rotterdam, Holland, and not for Bremen, but, that the manifest states expressly that the cargo was really for Bremen and that the bill of lading contains the information that its arrival is to be notified to H. von Linsstow of Bremen;

That there is thus no doubt that both the voyage of the Dacia and her cargo were those provided for on the 9th of December, 1914; that, upon the sailing of the ship, Breitung was reimbursed in the form of freight for the price paid by him for the ship, and that the shipper, Owens, was himself paid and at the same time reimbursed by the Guaranty Trust Co. acting in behalf of the Germans interested to the extent of 75% of his account for the price of the cargo and the freight; that, consequently, the interests involved in the venture were, to the extent of 75%, German interests, except for the mortgage of the Guaranty Trust Co. on the cargo to secure the sums paid by it on behalf of the German banks above mentioned;

Considering that, on February 27, 1915, at the time of its capture, the Dacia was then, due to a transfer to the American flag especially secured for the purpose, in process of transporting a cargo intended for Bremen, Germany, in fulfilment of agreements drawn up in favor of interested Germans while the ship was under the German flag and made conditional upon the transfer of the said ship to the American flag; In law:

Considering that by the terms of Article 1 of the decree of November 6, 1914 (Journal Officiel, Nov. 7, 1914), the Declaration signed at London on February 26, 1909, regarding the law of naval warfare, was declared to be in force during the present war, except for certain additions and modifications irrelevant to the question;

That by the terms of Article 56 of the said Declaration, "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";

That it is mutually recognized by the parties that this is the only law applicable to this particular case;

That, moreover, as the Declaration of London of 1909 has not been ratified, it has purely and simply the force of a national act, the interpretation of which belongs to the Council;

That Breitung tries to maintain that the transfer of the Dacia to the American flag was not effected in order to evade the consequences to which an enemy vessel, as such, is exposed, by alleging a real and legitimate interest which actuated his purchase, which he seeks to prove by the considerations, facts, and documents produced by him and mentioned above;

But, considering that neither the nationality nor the commercial status of Breitung, nor his alleged speculations, any more than the purpose he claims to have had in view, namely, of acquiring at a reasonable price something of which he had need, constitute in this particular case satisfactory proof that the transfer of the Dacia to the American flag was not effected to avoid the risk of capture for the ship; that none of Breitung's allegations bear upon the conditions under which the Hamburg-America Line in its own interest tried to sell and did sell the Dacia; that in this respect the simple statement of its Manager, according to which he would have sold it because the ship was old, is insufficient proof, when it has been proved on the other hand that the ship was idle because of the risk of capture and that the transfer to the American flag was the condition of its charter and of its sale;

Considering that, according to the claimant, the proof of the genuineness and of the sincerity of the transfer and of the existence of a real interest in the purchaser, should be sufficient to render the transfer to a neutral flag valid against a belligerent;

That the claimant on this point appeals to an opinion rendered by the Hon. Cone Johnson, Solicitor of the Department of State of the United States, August 7, 1914, according to which Article 56 of the Declaration of London should be understood to mean that "the sale of a belligerent vessel to a neutral in time of war is valid where such sale is made in good faith and divests all the title and interest of the vendor," (Senate Document No. 563, 63rd Congress, 2nd Session,

p. 88); that, according to Mr. Cone Johnson, the Declaration of London only

restates the position long maintained by the United States, Great Britain, and most of the other maritime nations, except as to the burden of proof of bona fides of such a transfer made during the existence of war. It is the bona fides of the sale which is the essence of a good transfer and it is not perceived that the ulterior motive actuating the parties to the transfer is to govern, though such motive may have been the natural advantages in having the ship to fly the flag of a neutral nation rather than of a country at war. If the transfer was bona fide without defeasance or reservation of title, or without any understanding that the vessel should be retransferred at the end of hostilities and without other indicia of a simulated or fictitious transfer, and not of a ship in a blockaded port or in transitu, the transfer is valid under international law as it would be under the Declaration of London, though the ulterior motive of the vendor and the vendee may have been the natural advantages of flying the flag of a country at peace;

But considering that 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; that 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; that 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);

That 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 under certain conditions not bearing upon the present case;

That the report presented to the conference with regard to the various provisions, especially Article 56 of the Declaration, clearly indi

cated that the transfer in order to be valid as against belligerents should not have been solely actuated by the existence of the war (Blue Book, p. 326 and p. 212) but, for example, by inheritance;

That this point of view was adopted by German legislation (Prize Regulations of Sept. 30, 1909, Chap. 11, Art. 12, Reg. 3, VIII, 14), 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 R. and I. Navy, 2, V. 133, Art. 11) 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 Nov. 6, 1914, cited above (Order in Council, Oct. 29, 1914); and by Italian jurisprudence and legislation (Decree of June 3, 1915, Off. Gaz. No. 150 of June 15, 1915).

That, as the Italian Prize Commission also pointed out in 1912 (Acts of the Royal Prize Commission, Italo-Turkish War, Vol. 1, p. 197: Aghios Georghios affair, May 13, 1912) "if capture is the penalty by which the belligerent forbids enemy merchant ships the use of the sea, it follows that, whatever the act, even when prompted by legitimate interest, which tends immediately to protect the enemy ship from this penalty, it can only be considered by the belligerent as performed to defraud him of his right and consequently it is void."

Considering that in adopting Article 56 of the Declaration of London, interpreted in accordance with the opinion of the Council, and in consenting momentarily not to apply the time-honored provisions of the order of July 26, 1778, enacted with the view of assisting the United States in the interest of liberty and expressly held to be in force by the decree of Frimaire 29, year VIII, the Government of the Republic was only following the ideas and practices most generally in use;

That the opinion rendered by the Hon. Cone Johnson (which he himself admitted was hastily drawn up without his having either the time or the opportunity to correct it, and which was the subject of lively debates in the United States Senate, especially in the session of January 25, 1915) should be regarded as a counsel's speech in favor of certain