International Law. A Treatise Volume I Part 41

[Footnote 517: See below, -- 266.]

[Sidenote: Claim of Vessels to sail under a certain Flag.]

-- 261. The Law of Nations does not include any rules regarding the claim of vessels to sail under a certain maritime flag, but imposes the duty upon every State having a maritime flag to stipulate by its own Munic.i.p.al Laws the conditions to be fulfilled by those vessels which wish to sail under its flag. In the interest of order on the Open Sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the Open Sea is freedom for such vessels only as sail under the flag of a State. But a State is absolutely independent in framing the rules concerning the claim of vessels to its flag. It can in especial authorise such vessels to sail under its flag as are the property of foreign subjects; but such foreign vessels sailing under its flag fall thereby under its jurisdiction. The different States have made different rules concerning the sailing of vessels under their flags.[518] Some, as Great Britain[519] and Germany, allow only such vessels to sail under their flags as are the exclusive property of their citizens or of corporations established on their territory. Others, as Argentina, admit vessels which are the property of foreigners. Others again, as France, admit vessels which are in part the property of French citizens.[520]

[Footnote 518: See Calvo, I. ---- 393-423, where the respective Munic.i.p.al Laws of most countries are quoted.]

[Footnote 519: See section 1 of the Merchant s.h.i.+pping Act, 1894 (27 and 28 Vict. c. 60), and sections 51 and 80 of the Merchant s.h.i.+pping Act, 1906 (6 Ed. VII. c. 7).]

[Footnote 520: The Inst.i.tute of International Law adopted, at its meeting at Venice--see Annuaire, XV. (1896), p. 201--in 1896, a body of ten rules concerning the sailing of merchantmen under the maritime flag of a State under the heading:--"_Regles relatives a l'usage du pavillon national pour les navires de commerce_."]

But no State can allow such vessel to sail under its flag as already sails under the flag of another State. Just as a vessel not sailing under the flag of a State, so a vessel sailing under the flags of two different States does not enjoy any protection whatever. Nor is protection enjoyed by such vessel as sails under the flag of a State which, like Switzerland, has no maritime flag. Vessels belonging to persons who are subjects of States without a maritime flag must obtain authority to sail under some other State's flag, if they wish to enjoy protection on the Open Sea. And any vessel, although the property of foreigners, which sails without authority under the flag of a State, may be captured by the men-of-war of such State, prosecuted, punished, and confiscated.[521]

[Footnote 521: See the case of the steams.h.i.+p _Maori King_ _v._ His Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p.

562, and sections 69 and 76 of the Merchant s.h.i.+pping Act, 1894 (27 and 28 Vict. c. 60).]

[Sidenote: s.h.i.+p Papers.]

-- 262. All States with a maritime flag are by the Law of Nations obliged to make private vessels sailing under their flags carry on board so-called s.h.i.+p papers, which serve the purpose of identification on the Open Sea. But neither the number nor the kind of such papers is prescribed by International Law, and the Munic.i.p.al Laws of the different States differ much on this subject.[522] But, on the other hand, they agree as to the following papers:--

[Footnote 522: See Holland, "Manual of Naval Prize Law," ---- 178-194, where the papers required by the different maritime States are enumerated.]

(1) An official voucher authorising the vessel to sail under its flag.

This voucher consists of a Certificate of Registry, in case the flag State possesses, like Great Britain and Germany for instance, a register of its mercantile marine; in other cases the voucher consists of a "Pa.s.sport," "Sea-letter," "Sea-brief," or of some other doc.u.ment serving the purpose of showing the vessel's nationality.

(2) The Muster Roll. This is a list of all the members of the crew, their nationality, and the like.

(3) The Log Book. This is a full record of the voyage, with all nautical details.

(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with details concerning the number and the mark of each package, the names of the s.h.i.+ppers and the consignees, and the like.

(5) The Bills of Lading. These are duplicates of the doc.u.ments which the master of the vessel hands over to the s.h.i.+pper of the goods at s.h.i.+pment.

(6) The Charter Party, if the vessel is chartered. This is the contract between the owner of the s.h.i.+p, who lets it wholly or in part, and the charterer, the person who hires it.

[Sidenote: Names of Vessels.]

-- 263. Every State must register the names of all private vessels sailing under its flag, and it must make them bear their names visibly, so that every vessel may be identified from a distance. No vessel must be allowed to change her name without permission and fresh registration.[523]

[Footnote 523: As regards Great Britain, see sections 47 and 48 of the Merchant s.h.i.+pping Act, 1894, and sections 50 and 53 of the Merchant s.h.i.+pping Act, 1906.]

[Sidenote: Territorial Quality of Vessels on the Open Sea.]

-- 264. It is a customary rule of the Law of Nations that men-of-war and other public vessels of any State are, whilst on the Open Sea as well as in foreign territorial waters, in every point considered as though they were floating parts of their home States.[524] Private vessels are only considered as though they were floating portions of the flag State in so far as they remain whilst on the Open Sea in principle under the exclusive jurisdiction of the flag State. Thus the birth of a child, a will or business contract made, a crime[525] committed on board s.h.i.+p, and the like, are considered as happening on the territory and therefore under the territorial supremacy of the flag[526] State. But although they appear in this respect as though they were, private vessels are in fact not floating portions of the flag State. For in time of war belligerent men-of-war can visit, search, and capture neutral private vessels on the Open Sea for breach of blockade, contraband, and the like, and in time of peace men-of-war of all nations have certain powers[527] over merchantmen of all nations.

[Footnote 524: See above, -- 172, and below, ---- 447-451.]

[Footnote 525: See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and 481-500.]

[Footnote 526: Since, however, individuals abroad remain under the personal supremacy of their home State, nothing can prevent a State from legislating as regards such of its citizens as sail on the Open Sea on board a foreign vessel.]

[Footnote 527: See below, -- 266. The question of the territoriality of vessels is ably discussed by Hall, ---- 76-79.]

[Sidenote: Safety of Traffic on the Open Sea.]

-- 265. No rules of the Law of Nations exist as yet[528] for the purpose of preventing collisions, saving lives after collisions, and the like, but every State possessing a maritime flag has legislated for the conduct on the Open Sea of vessels sailing under its flag concerning signalling, piloting, courses, collisions, and the like. Although every State can legislate on these matters independently of other States, more and more corresponding rules have been put into force by all the States during the second half of the nineteenth century, following the lead given by Great Britain through section 25 of the Merchant s.h.i.+pping Act Amendment Act of 1862, the "Regulations for preventing Collisions at Sea" which accompany this Act, and, further, Sections 16 to 20 of the Merchant s.h.i.+pping Act, 1873.[529] And the "Commercial Code of Signals for the Use of all Nations," published by Great Britain in 1857, has been adopted by all maritime States. In 1889 a maritime Conference took place at Was.h.i.+ngton, at which eighteen maritime States were represented and which recommended a body of rules for preventing collisions at sea to be adopted by the single States,[530] and a revision of the Code of Signals. These regulations were revised in 1890 by a British Committee appointed by the Board of Trade,[531] and, after some direct negotiations between the Governments, most maritime States have made corresponding regulations by their Munic.i.p.al Laws.[532] And a new and revised edition of "The International Code of Signals" was published by the British Board of Trade, in conformity with arrangements with other maritime Powers, in 1900, and is now in general use.[533]

[Footnote 528: It is to be expected that matters will soon undergo a change, for the Conference of the International Maritime Committee, which met at Brussels in September 1910 and where all the maritime States of Europe, the United States of America, most of the South American States, and j.a.pan were represented, produced a draft convention concerning collisions (see Supplement to the _American Journal of International Law_, IV. (1910), p. 121). The "Maritime Conventions Bill," which is now before Parliament, proposes such alterations of British Munic.i.p.al Law as would enable the British Government to ratify this Convention. The Inst.i.tute of International Law already in 1888, at its meeting at Lausanne--see Annuaire, X. (1889), p. 150--adopted a body of eight rules concerning the subject.]

[Footnote 529: See 25 and 26 Vict. c. 63; 36 and 37 Vict. c. 83. The matter is now dealt with by sections 418-421 of the Merchant s.h.i.+pping Act, 1894 (57 and 58 Vict. c. 60).]

[Footnote 530: See Martens, N.R.G. 2nd Ser. XII. p. 416.]

[Footnote 531: See Martens, N.R.G. 2nd Ser. XXII. p. 113.]

[Footnote 532: Latest British Regulations, 1896.]

[Footnote 533: The matter of collision at sea is exhaustively treated by Prien, "Der Zusammenstoss von Schiffen nach dem Gesetzen des Erdhalls"

(2nd ed. 1899).]

The question of jurisdiction in actions for damages for collision at sea is not at all settled.[534] That the damaged innocent vessel can bring an action against the guilty s.h.i.+p in the Courts of the latter's flag State is beyond doubt since jurisdiction on the Open Sea follows the flag. If the rule that all vessels while on the Open Sea are considered under the sway of their flag State were one without exception, no other State would claim jurisdiction in cases of collision but the flag State of the guilty s.h.i.+p. Yet the practice of the maritime States[535] goes far beyond this, without, however, being uniform. Thus, for instance, France[536] claims jurisdiction if the damaged s.h.i.+p is French, although the guilty s.h.i.+p may be foreign, and also in the event of both s.h.i.+ps being foreign in case both consent, or for urgent measures having a provisionary character, or in case France is a place of payment. Thus, further, Italy[537] claims jurisdiction even if both s.h.i.+ps are foreign in case an Italian port is the port nearest to the collision, or in case the damaged s.h.i.+p was forced by the collision to remain in an Italian port. Great Britain goes farthest, for the Admiralty Court claims jurisdiction provided the guilty s.h.i.+p is in a British port at the time the action for damages is brought, even if the collision took place between two foreign s.h.i.+ps anywhere on the High Seas.[538] And the Admiralty Court justifies this extended claim of jurisdiction[539] by maintaining that collision is a matter of _communis juris_, and can therefore be adjudicated upon by the Courts[540] of all maritime States.[541]

[Footnote 534: See Phillimore, IV. -- 815; Calvo, I. -- 444; Pradier-Fodere, V. Nos. 2362-2374; Bar, "Private International Law" (2nd ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws"

(2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd ed.), pp. 486 and 495; Westlake, "Private International Law" (3rd ed.), pp. 266-269; Marsden, "The Law of Collisions at Sea" (6th ed. 1910); Williams and Bruce, "Treatise on the Jurisdiction of English Courts in Admiralty Actions" (3rd ed. 1902).]

[Footnote 535: See above, -- 146.]

[Footnote 536: See Pradier-Fodere, No. 2363.]

[Footnote 537: See Pradier-Fodere, No. 2364.]

[Footnote 538: Or even in foreign territorial waters. See Williams and Bruce, _op. cit._, p. 78:--"The Admiralty Court from ancient times exercised jurisdiction in cases of collision between foreign vessels on the High Seas; and since the Admiralty Court Act, 1861, it has entertained suits for collision between s.h.i.+ps in foreign waters, and between an English and a foreign s.h.i.+p in foreign waters."]

[Footnote 539: _The Johann Friederich_ (1838), 1 W. Robinson, 35; the Chartered Mercantile Bank of India, London, and China _v._ The Netherlands India Steam Navigation Co., 10 Q.B.D. 537.]

[Footnote 540: The practice of the United States of America coincides with that of Great Britain; see the case of the _Belgenland_, 114, United States, 355, and Wharton, I. -- 27.]

[Footnote 541: The Inst.i.tute of International Law, at its meeting at Lausanne in 1888, adopted two rules concerning the jurisdiction in cases of collision; see Annuaire, X. (1889), p. 152.]

[Sidenote: Powers of Men-of-war over Merchantmen of all Nations.]

-- 266. Although the freedom of the Open Sea and the fact that vessels on the Open Sea remain under the jurisdiction of the flag State exclude as a rule the exercise of any State's authority over foreign vessels, there are certain exceptions in the interest of all maritime nations. These exceptions are the following:--

(1) Blockade and Contraband. In time of war belligerents can blockade not only enemy ports and territorial coast waters, but also parts of the Open Sea adjoining those ports and waters, and neutral merchantmen attempting to break such a blockade can be confiscated. And, further, in time of war belligerent men-of-war can visit, search, and eventually seize neutral merchantmen for contraband, and the like.

(2) Verification of Flag. It is a universally recognised customary rule of International Law that men-of-war of all nations have, to maintain the safety of the Open Sea against piracy, the power to require suspicious private vessels on the Open Sea to show their flag.[542] But such vessels must be suspicious, and, since a vessel may be a pirate although she shows a flag, she may eventually be stopped and visited for the purpose of inspecting her papers and thereby verifying the flag. It is, however, quite obvious that this power of men-of-war must not be abused, and that the home State is responsible for damages in case a man-of-war stops and visits a foreign merchantman without sufficient ground of suspicion. The right of every State to punish piracy on the Open Sea will be treated below, ---- 272-280.

[Footnote 542: So-called "Droit d'enquete" or "Verification du pavillon." This power of men-of-war has given occasion to much dispute and discussion, but in fact n.o.body denies that in case of grave suspicion this power does exist. See Twiss, I. -- 193; Hall, -- 81, p.