Volume I Part 41 (1/2)

[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.]