Volume I Part 41 (2/2)

[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.

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