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Chapter I of a ship, even if punishment by death were claimed as part of the disciplinary rules of the ship by its own law.
Appeals to local authorities for assistance.
[31 Rev. Rep. 712.]
The same principle would probably be applied to a case of undue corporal punishment. But again the tendency of the mind would be to admit the justice of reasonable corporal punishment in extreme cases. The suggestion therefore becomes inevitable, though it is probably unsound logically, that the English Courts, in cases where the facts do not speak for themselves, would adopt the standard of the English law under analogous cases‡.
This rule would also extend to the passengers in cases of breach of passenger discipline, at least on board ships where the same principle obtains as in English law. The captain's jurisdiction over the passengers results from agreement on the part of the passenger to submit to the reasonable orders of the captain, and to punishment for disobedience. And indeed there does not seem much reason why this should not be the law.
Finally, we come to the question of appeals to the local executive, or to the local Courts, for assistance. That such appeals may be made is the logical consequence of the assertion of supremacy of the law of the harbour. An appeal by a sailor to be relieved from, or to be saved from, punishment, would in all probability be treated as a similar appeal by a foreigner within the protection of the law; and the taking of legitimate steps to enforce the protection of the law, or the judgment of the Court, could not be looked upon as a violation of the rights of the flag. An appeal by a master who finds himself unable to enforce his own law of discipline raises questions of difficulty. In quelling a disturbance on board ship the local police would undoubtedly interfere, as it would fall within their regular duties to preserve
The following English decision bears upon the question and illustrates the opposite case, where the law of the harbour sanctioned a punishment in excess of that allowed by the law of the flag.
In Aitken v. Bedwell a seaman was guilty of mutinous conduct on board an English ship in the port of Odessa. The captain sent on shore for assistance and the scaman was given in charge of some Russian soldiers. He was then flogged, the captain ordering the punishment. In an action against the captain it was contended on his behalt that what had occurred on board was a breach of Russian law, and that what had happened on land was done with the authority of the Russian Government.
Lord Tenterden left the following question to the jury- "If you think that the defendant merely preferred his complaint, and left the constituted authorities to act as they thought fit, the defendant is entitled to your verdict. If, on the other hand, you think he did more, and was active in promoting and causing the punishment to be inflicted, then he is answerable in this form of action." There was a verdict for the plaintiff, with £ 25 damages,
the peace of the harbour. The direct intervention of the local Chapter I police however would necessarily be governed by the same rules as their intervention in ordinary cases. And so, if the local Courts were appealed to to punish a breach of discipline, the enquiry would inevitably be limited to ascertaining whether any breach of the local law had been committed.
THE JURISDICTION OF THE CONSUL.
There is however another authority, the Consul, who is invested with jurisdiction to settle difficulties which arise on shipboard. His powers are sometimes settled by convention: but he has certain powers independent of express arrangement which are inherent to his office, which dates from the time when ships first sailed the sea.
I do not propose to go into the matter at any length, but only to touch upon that part of it which bears on the present question. The Consul, in virtue of his power to settle disputes The Consul which arise on board ship, is the tribunal of the flag, established of the flag in foreign by consent of the foreign country at the port, to which masters and sailors can* resort for the settlement of their differences.
Unless there is something special in the convention, it is clear that the presence of the Consul at a port does not in any way alter the relation of the law of the flag to the law of the harbour, and that this question remains therefore unaffected. In order to illustrate the manner in which the powers of the Consul are dealt with in conventions, it will be instructive to set out the 8th. article from the one concluded between France and the United States in 1853
The respective Consuls-general, Vice-consuls, or Consular Agents, shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of differences which may arise, either at sea or in port, between the captain, officers, and crew without exception, particularly in reference to the adjustment of wages, and the execution of contracts. The local authorities shall not,on any pretext, interfere in these differences, but shall lend forcible aid to the Consuls when they may ask it, to arrest and imprison all persons composing the crew whom they may deem it necessary to confine. Those persons shall be arrested at the sole request of the Consuls, addressed in writing to the local authority, and supported by an official extract from the register of the ship, or the list of the crew, and shall be held during the whole time of their stay in port at the disposal of the Consul.
*There is an interesting group of cases dealing with the question when the Consul's jurisdiction is compulsory; these however do not concern the point under discussion.
Their release shall be granted at the mere request of the Consuls made in writing. The expenses of the arrest and detention of these persons shall be paid by the Consuls.
A great deal is settled by this article, but not everything: and it will be seen by reference to the opinion of Mr. Cushing the Constitution-United States Attorney General in the case of the " Atalanta", that the interpretation of " internal order" is still far from precise.
al Law", p. 407.
The article of the
What is internal in this context? Plainly it seems to me everything which does not appertain, either by the law of nations or the municipal law, to the local jurisdiction. If the acts of disorder, if the "differences", be matters of local jurisdiction, then, as questions, they are jurisdiction external to the ship. Apply the test to this or any other case of the same principle and it reconciles all controversy. Where there is in what occurs on board the ship no infringement of the laws of France, or of the United States, there the local authority has no concern in the matter, save, in the terms of the article, to support the Consul, in maintaining the authority and executing the laws of his own Government.
The facts of the case were these:
The French authorities at Marseilles at the request of the United States Consul received and imprisoned on shore some of the crew of the United States ship "Atalanta ", charged with acts of insubordination and violence on the high seas. On the application of the Consul some were released, and some were again put on board the "Atalanta ", for conveyance to the United States for trial. With notice to the Consul, but in spite of his remonstrances, the French authorities then went on board and resumed possession of the men and imprisoned then on shore.
Quite apart from the question of interpreting the convention, this opinion of the Attorney General is important as he reviews Convention, the general question independently of the convention.
with United States exa
Mr. Cushing adopts the view of Ortolan that ships
"when they are in the territorial waters of a foreign State, are not exempt from the local police and jurisdiction, except as to facts happening on board which do not concern the tranquillity of the port, or persons foreign to the crew. For all other facts they remain subject to this police and this jurisdiction ".
The French law however, does not act on the opinion of the jurist in the opposite case, for it does not
"hesitate to prescribe that when crimes are committed on board a
Freach vessel in a foreign port, by one of the crew against another of Chapter I the same crew, the French Consul is to resist that application of the local authority to the case.
He came, however, to the conclusion that the local authority was entitled to assert itself in regard to crimes committed on board a merchant-man in the harbour: but he denied
that the local authority had any right to interfere with persons lawfully detained on board the ship by the laws of the country to which she belongs, as for a crime committed on the high seas among members of the crew, and not justiciable by the foreign jurisdiction. "
The offence was not committed in the foreign harbour, but Offence on the high seas. There can be little hesitation in accepting at sea: committed the conclusion of the learned Attorney General that the local authorities could have no inherent jurisdiction in such a case, but that the only action which could be taken by them was by request of the Consul and in virtue of the Convention.
The local Executive can only move when the local law is violated in this case, if the Consul had not moved, the only thing which had occurred was the fact that a sailor was lying in irons on board a ship in harbour, and with this the local executive could have nothing to do.
This does not deny the possible right of the Courts to in- possible terfere; and it is not improbable that if it were shown to the illegal Court that this detention was contrary to English law, (guided detention. by the rules of recognition of the law of the flag), some form of redress, whether by habeas corpus or other means, would be found. To the argument that the detention was justified by the law of the flag, and that the offence was committed on the high sea, the answer would probably be given: Do what your law allows you on the high seas. but conform to the law of the harbour when you come to port.
So the jurisdiction of the Consul drops out from the question, and we come back to the point from which we started. The learned Attorney General himself, while asserting a rule which applies only to offences committed outside of the harbour, admitted that if the acts of disorder do fall within the local jurisdiction, that jurisdiction is not ousted.
Thus, the questions where there is a convention are the same as where there is none: What is the meaning of "internal order"? What is the meaning of discipline? How is either term to be
they are dealt with by the loc law.
Chapter I defined in order that the occasions when the interference of the local authorities is justified may become clear and well-underQuestions cease to be stood? The opinion of Mr. Cushing supports the view that matters arising on board which are dealt with by the local law cease to be questions of internal order, because, on the hypothesis, they are treated as questions of order external to the vessel, as questions affecting the public order of the local community therefore they did not, in his view, fall within the exclusive privilege of the flag, and jurisdiction of the Consul, granted by the convention: nor can they fall within that privilege and that jurisdiction as allowed and recognised by public law.
Punishment must be sub
Yet this still leaves one point open: What is to be said ject to the with regard to the punishment of offences clearly within the purview of "internal order" or "discipline ", which, justified by the law of the flag, yet constitutes a breach of the law of the harbour? It is not clear whether the case is contemplated by the article of the convention quoted above: but it is submitted that the conclusion already arrived at is sound. For, if the local law may claim to be respected in questions of disorder, the logi cal inference is that it may claim the same respect in questions of repression and punishment of disorder.
This discussion may serve as an appropriate introduction to the examination of the English law on the subject ; for we must now proceed to the second branch of the enquiry, and ascertain what interpretation our own legislation puts upon the rule of international law which Mr. Cushing stated thus-" Each nation does by the general rule of public law.... concede to the Consuls of the other a certain authority of discipline, and to the ships of the other a certain privilege in its ports": in other words-What authority of discipline for British Consuls, what privileges in respect of British ships, the crews, and persons on board, in foreign ports, are claimed by British law?
ENGLISH LAW AS TO ENGLISH SHIPS IN FOREIGN
We must now examine the provisions of the Merchant Shipping Act which deal with English ships and seamen on the high sea and in foreign waters: together with certain kindred matters. The sections will be found in the Appendix to this chapter; they deal with the following subjects: