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Chapter I

Nationality

of children

born under

the flag at

sea.

[cf. Part I,

P. 45.J

Extension to high sea of

mited to part of United

This case has already been referred to in connection with the nationality of children born on British ships on the high sea, and there seemed no difficulty in coming to the conclusion that their nationality is British, on account of their having been born under the protection of the flag. Conversely, the nationality of children born on board foreign ships, though of English parents, would fall to be decided by the statutes 4 Geo. II, c. 21, or 13 Geo. III, c. 21, as the case might be. But the question which arises under the Bastardy Act is more difficult. The Act 7 & 8 Vict. c. 101, s. 2, refers simply to a woman "delivered of a bastard child" in accordance with ordinary principles, this means delivered within the area to which the Act applied in this case England and Wales.†

This limitation of the Act to a part of the United Kingdom statutes li of itself shows how difficult the question before us really is: for, as was before suggested, there can be no reason for limiting this extension high-seawards to statutes only applicable to England. Kingdom. The principle must also apply to statutes applicable to Scotland, or to Ireland, alone. The only alternatives are that statutes applicable to one part of the United Kingdom extend either to ships registered in that part, or to persons belonging to that part by birth. There is no trace of the existence of either rule. Yet the general application of such statutes might not only be contrary to the intention of Parliament in imposing the limitation, but might also lead to conflicts where the law differed in England and in Scotland.

Similar dif

application

law.

But putting this question one side, there can be no doubt that above bridges in the rivers of a foreign country the protection of the flag is not even claimed, except in matters of discipline. Such a temporary application of Acts of Parliament to the same locality seems hardly consistent with their nature.

It may be said that precisely the same difficulties arise with ficulties in reference to the application of the common law on board. This is of common true, even to the extent of the differences between the common law of England and Scotland. But if we accept Lindley J's reason for the application of the common law-that otherwise there would be no law at all-and if we bear in mind that not the common law law only, but also the whole of the criminal law is ex

This point remains the same under the Bastardy Laws Amendment Act 187235 & 36 Vict. c. 65, s. 3.

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tended on board, the common affairs of daily life are practically Chapter I covered by the law and the same reason does not seem to call for a similar temporary application or extension of the statute law.

The Merchant Shipping Act covers a certain amount of the ground, and also certain special statutes dealing with persons on board ship-such as (formerly) the registration of births and deaths at sea, under 37 & 38 Vict. c. 88, s. 37:† and, still, the making now dealt with by of wills at sea by seamen, under the Statute of Frauds, s. 23. And M. S. Act, there is a certain body of statutes which, though not specially 1894, s. 254.] extended, yet from the force of circumstances must apply to transactions concluded on board, but which cannot take effect till the persons reach the shore: such as the law applicable to bills of exchange, and to stamps. But beyond this it does not seem possible to go.

It is submitted that "floating island "as a legal expression is erroneous. If it were sound legally and imported legal consequences, it would have been sufficient to decide Anderson's case, and all the rest of the argument would have been unnecessary. Floating Colony" is perhaps nearer the mark, if it were essential to find a concise expression, but the analogy would still be incomplete. Either term is but a metaphor: and as such useless and misleading, and ill-adapted to the strict purposes of law.

46

The only statement which seems possible is that ships upon the high sea are neither territory nor Colony, but only what they profess to be-ships with a law peculiar to themselves, which it must be our purpose to unravel.

:

waters.

The position of British ships will not be altered in this res- British ships pect when they come within the territorial waters of the United in territorial Kingdom; but the provisions of the Act of 1878, provides one more argument against the territorial theory of ships. The fact that the sanction of the Secretary of State is required before a prosecution for an offence on board is commenced, in the case of a foreigner, is so large a derogation from the ordinary law of the land, that it can hardly have been in contemplation of the Legislature that such a provision was being enacted for crimes committed on territory of the United Kingdom.

The foregoing suggestion does not deny the broad principle [L.R. 2 Ex. given by Cockburn C. J. in R. v. Keyn, that D.at p. 101.]

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Chapter I

By the received law of every nation a ship on the high seas carries its nationality and the law of its own nation with it. All on board, therefore, whether subjects or foreigners, are bound to obey the law of the country to which the ship belongs, as though they were actually on its territory on land. But they are liable to that law alone."

It is a question for each country to determine how much of its law shall be in force on board its own ships. The fact that there is a doubt whether the English statutes apply on board English ships in no way militates against the existence of the general rule: which perhaps should be better stated thus-Ships on the high seas are subject to the Legislature of the flag: which however may be contracted for convenience into the "law of the flag", so long as the fundamental idea is not lost sight of, that it does not necessarily imply that all the law of the flag is applicable.

But this rule is not exclusive, at least so far as English principles are concerned. It will be seen hereafter that some extraterritorial legislation applies to British subjects on board foreign ships on the high sea in one case expressly, and in others by necessary implication from the general nature of the extra-territorial language used. It is obvious that if legislation for British subjects in foreign countries stands justified by allegiance, legislation applicable to British subjects on foreign ships needs no fuller justification

It will be necessary in due course to consider the effect of such legislation. For the moment it is only necessary to note the fact that this exception exists to the general rule as stated by the Lord Chief Justice, and that the last sentence should be omitted.

SHIPS IN FOREIGN HARBOURS.

When ships leave the high seas and enter foreign harbours or other dominion waters, questions of considerable difficulty arise. Does the jurisdiction of the Legislature of the flag absolutely prevail? or does it absolutely cease? or does it continue to some limited degree by general consent? In other words, we come to the examination of a question which puts the "floating island" theory to the touch: What in fact is the law governing ships in foreign ports?

Ships of war, it is conceded, enjoy the privilege of exterrito

riality in foreign waters; and this principle was occasionally ex- Chapter I tended to foreign mail ships prior to 1891, the status of ships of war being granted by legislation†

mail ships

tion,

The status of mail ships was dealt with by the Imperial Par- Status of liament, by the Mail Ships Act, 1891, which was passed in or- by convender to enable certain privileges to be granted by convention to ships engaged in the postal service. The conditions that any vessel should become an "exempted mail ship ", are that the owner is subsidized for the execution of postal service by a foreign State, and gives security to the satisfaction of the High Court to meet claims which may be made against the ship. The conseqnence of the exemption, so far as the ship is concerned is, by s. 5, that she is not

S. 5.

liable to be arrested or detained by any arresting authority either for 54.& 55 the purpose of founding jurisdiction in any Court of Admiralty, or of Vict. c. 31, enforcing the payment of any damages, fine, debt, or other claim or sum, or enforcing any forfeiture, whether arising from the misconduct of the master or any of the crew or otherwise.

The provision more particularly affecting the subject in hand is s. 4, which regulates the arrest of persons on board when the exempted mail ship is in a port in the United Kingdom.

54 & 55 Vict. c. 31, s. 4.

process on board ex

Arrest and (1) Where this section applies to a convention with a Provisions execution of foreign State, and an exempted mail ship to which this sec- of the Act as tion applies is in a port in the United Kingdom no person to arrest of empted mail shall be arrested without warrant on board such ship, and be- persons on ships. fore any process civil or criminal authorising the arrest of any person who is on board such ship is executed against that person the following provisions of this section shall be observed; that is to say, -

(a) written notice of the intention to arrest a person who is, or is suspected to be, on board the ship, stating the hour at which, if necessary, the ship will be searched, shall, if it is a ship of a foreign State and there is at the port a consulate of that State, be left at the consulate addressed to the consular officer :

(b) it shall be the duty of the master upon demand, if the said person is on board his ship, to enable the proper officer to arrest him:

(c) if the officer is unable to arrest the said person he may, but if it is a foreign ship only after the expiration of such time after notice was left at the consulate as is specified in the convention, search the ship for such person, and if he is found may arrest him.

Thus in Mauritius, by Ordinance No. 1 of 1886, it was provided that the steamers of the " Messageries Maritimes ", which carried the regular mail service of the Colony, should, in the ports and waters of the Colony, "be considered and treated as vessels of war, and be entitled to all the rights, privileges, and immunities of vessels of war," and should not “ for any cause be diverted from their special duties, or be liable to seizure or detention by order of any Court or Judge ".

The Ordinance was a temporary one, and by proclamation ceased to be in force on 1st. May, 1890.

board.

Chapter I

(2) The ship may be delayed for the purposes of this section for the time specified in the convention, but not for any longer time.

(3) If the master of a ship refuses to permit a search of the ship in accordance with this section, any officer of Customs may detain the ship, and such master shall be liable to a fine of £ 500.

(4) This section shall apply to the arrest of the master in like manner as in the case of any other person.

The Act may be applied to the Colonies.

A convention had been entered into in 1890 between Great Britain and France, article V of which deals with the same

subject.

Provisions When the packets employed by the French postal administration of Art. V. of and by the British postal administration are national vessel owned by Mail Ships the State, or vessels belonging to companies subsidized for the execution Convention between of postal service, such packets cannot be diverted from their destination, France and nor be liable to seizure, embargo, or " Arrêt de Prince".

Great Bri

tain.

Merchant vessels.

Passengers on such packets, who may not desire to go on shore during the vessel's stay in a port of either State, cannot be on any account taken from on board.

Nevertheless, the local authorities may claim the expulsion from on board of persons wanted in pursuance of a regular warrant for any crimes or offences who may have taken refuge or embarked in mail boats, and, in case of necessity, searches may be carried out on board such vessels by the competent authorities. The individuals in question shall then be handed over to them.

It is, however, agreed that the authorities cannot proceed on board. unless they have previously given notice, at least one hour before the search, to the consulate or vice-consulate, in order that the Consul or Vice-consul, or his delegate, may be present at the searches in question. The letter giving notice shall be addressed to the Consul or Viceconsul, and shall state the exact hour, and if the agent neglect either to appear in person, or to be represented, the proceedings shall go on in their absence.

The execution of such measures shall not delay the departure of the vessel for more than an hour after the time of departure fixed in the time-tables of the company, which must be duly communicated by the respective companies to the authorities of each port of call.

The present article shall not apply to packets entrusted with a mail service and belonging to companies subsidized by either State, until a bond has been entered into, once for all, by the said companies to satisfy, after due hearing and definite decision, the legal consqeuences of any liability incurred either by the captains of their packets or by the companies themselves.

The aforesaid bond must be guaranteed by a security within the jurisdiction of the tribunals of the country in which the bond may have been entered into.

We proceed now to deal with merchant ships. It would seem to follow that, sovereignty within the realm and its waters being absolute, just as foreigners coming within the realm are subject to that sovereignty, so foreign ships coming within the realm are, together with all on board, also subject to that sovereignty.

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