When there is nothing particular or special in the conduct of the vessel itself, the national character is determined by the Residence of the Owner; but there may be circumstances arising from that conduct which will lead to a contrary conclusion.  It is a known and established rule with respect to a vessel, that if she is navigating under the pass of a foreign country, she is considered as bearing the national character of the nation under whose pass she sails; she makes a part of its navigation, and is in every respect liable to be considered as a vessel of that country.  In like manner, and on similar principles, if a vessel, purchased in the enemy’s country, is by constant and habitual occupation continually employed in the trade of that country, commencing with the war, continuing during the war, and evidently on account of the war, that vessel is deemed a ship of the country from which she is so navigating, in the same manner as if she evidently belonged to the inhabitants of it.[74] Further, when parties agree to take the pass and flag of another country, they are not permitted, in case any inconvenience should afterwards arise, to aver against the flag and pass to which they have attached themselves, and to claim the benefit of their real character.  They are likewise subject to this further inconvenience, that their own real character may be pleaded against them by others.  Such is the state of double disadvantage to which persons expose themselves by assuming the flag and pass of a foreign state.[75]

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[Sidebar:  Distinction as to Cargoes]

A distinction is made in England between the Ship and the Cargo.  Some countries have gone so far as to make the flag and pass conclusive on the cargo also; but in England it is held that goods have no dependence upon the authority of the state, and may be differently considered.  If the cargo is laden in time of peace, though documented as foreign property, in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo.[76]

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[Sidebar:  Hostile Property cannot be Transferred in Transitu.]

Property which has a hostile character at the commencement of a voyage, cannot change that character by assignment while it is in transitu, so as to protect it from capture.[77]

In the ordinary course of things, in the time of peace, such a transfer in transitu can certainly be made.  When war intervenes, another rule is set up by the Courts of Admiralty, which interferes with the ordinary practice.  In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment, till actual delivery; this arises out of a state of war, which gives a belligerent a right to stop the goods of his enemy.  If such a rule did not exist, all goods shipped in an enemy’s country would be protected by transfers, which it would be impossible to detect.[78]