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§ 280.

430

therefore that she neyer can be txansferTed validly, because the transfer always will evade [ainsi que se prononcé 1'article 56] the consequences of her being an enemy vessel. I think the Solicitor-General rather disclaimed the wish to put the argument as high as that; but if it is not to be put as high as that, it seems to me to come to nothing so far as this case is concerned. If the sale is made bona fide because the purchaser wishes to get the ship for his own purposes, the transfer, in my opinion, is not made in order to evade the consequences to which an enemy vessel is exposed. It does, no doubt, put an end to the consequences that follow on her being an enemy vessel, namely that so long as she is an enemy vessel she may be seized ; but it is not made to evade those consequences. I think that article 56 is really pointed at what may be called colourable transfers .... I do not think that this article was intended to interfere with the general prmciple of law as laid down by The Balüca at all, except so far as it might throw the onus of proving the bona fides of the transaction upon the purchaser. Here bona fides is shown, and I think that this transaction was a perf ectly valid one, and that there was nothing in the circumstances to prevent the Lloyd Mexicano passing a perf ectly

good title to the daimants That being so it seems torne quite clear

that there must be an order of release

Cette décision a été confirmée en appel par le „Judicial Committee of the Privy Councü" qui a spécialement fait ressortir que 1'intention des deux parties doit être prise en considération, mais que c'est surtout la bonne foi de 1'acquéreur qui décide de la vaüdité ou nulbté du transfert. Voir notamment les passages suivants qui mettent en lumière la bbérabté de la jurisprudence anglaise en matière de transfert de pavülon.

Edna (1375). „Two grounds are now relied on for the captors, both going to the validity of the title acquired by the daimants — first, that such a transfer cannot be valid unless the daimants show that not only they but also their transferor, acted in good faith — that is, without any purpose of def eating the belligerent rights of the Crown ; secondly,.. etc. [voir sur ce motif § 223bte].

The captors allege that the sale was one which, if not incompetent, yet ought not to be sustained. It is said that such a transaction must be tested by the state of mind in which it is conceived and carried through, and that in the nature of things the relevant state of mind is that of the transferor. The transferee's mind may be honest, and yet the impropriety of the transferor's motives may defeat the whole transaction. For this authority is sought in article 56 of the Déclaration of London as being a considered and correct formulation of the law of nations on the point. . .

The contention is that the daimants have to prove that the transter was made by the transferor, the person who makes it, otherwise than for the purpose of evading capture and condemnation. If this construction, is the trüe one, the article very considerably alters the law as laid

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