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Powers of arrest and imprisonment for desertion or absence Chapter I without leave out of the United Kingdom (ss. 223, 224].

Analysis of

Merchant

Apprehension of deserters, within the dominions, from foreign sections of ships, where due facilities are given by the foreign country for Shipping the apprehension of deserters from British ships (s. 238].

Constitution and powers of Naval Courts to hear complaints from seamen, and to make enquiries as to wrecks [ss. 480-485!. Jurisdiction of Courts in the dominions in [s. 685] case of offences s. 686].

a. By British subjects on board British ships on the high seas or in any foreign harbour :

b. By British subjects on board any foreign ship to which they do not belong :

seas.

c. By foreigners on board any British ship on the high

All offences against property or person committed either ashore or afloat out of the dominions by any sailor who is, or within 3 months has been, employed in any British ship, are to treated as if they had been committed within the jurisdiction of the Admiralty [s. 687].

Conveyance of offenders and witnesses to the United Kingdom or a Colony, in the case of offences committed by British seamen on the high sea or out of the dominions (s. 689].

Act, 1894.

criminal law

ships;

The first point to be noticed in these sections is the exten- Extension of sion of the criminal law to persons on board ship. As we shall on board presently see, all offences dealt with by the Criminal Law Conso- English lidation Acts of 1861 are, by those Acts themselves, made punishable when committed within the jurisdiction of the Admiralty ; but until those Acts are considered it will not be possible to do more than glance at the provisions of these sections. In the first place s. 686 with deals "any offence", and is not limited to the general criminal law, but extends to all statutory offences. In the second place it applies specifically to foreigners; but, in accordance with the recognised principle, the place of commission of the offence is limited to British ships on the high sea. The jurisdiction to try the offences is given to Courts in the Colonies as well as in the United Kingdom.

Section 687 provides that offences in foreign ports are to be in foreign treated as offences within the jurisdiction of the Admiralty when harbours. committed by persons, whom the marginal note describes as

Chapter I"British seamen ", : but whom the text of the section defines as seamen employed in British ships "at the time the offence is committed, or three months previously ". This section, though to a certain extent it covers the same ground as s. 686, does in fact take a wider scope, as it applies to offences committed ashore or afloat by persons who are no longer under the protection of the flag.

Jurisdiction over sailors months

for 3

the ship.

Each of these sections raises an interesting question. First: the second case dealt with by s. 686, is practically a surrender of jurisdiction over British subjects serving on board foreign ships, or, to adopt the language of the section, over British subjects on board foreign ships to which they belong it recognises the agreement of the sailor to serve under the flag.

This is not said in express terms; but one of the problems to be at some time solved, is, whether the fact of service under a foreign flag is sufficient to oust the operation of any other criminal law applicable to British subjects on the high seas, should the offence fall within that law. It will be remarked that, in so far as it affects British subjects not serving on board, this provision negatives the absolute supremacy of the law of the flag at sea, concerning which there will be much discussion hereafter: it negatives it too when the foreign ship is in harbour in a third State: so far as the law of the third State is concerned, it does not negative it, but becomes concurrent with it. The exception of British subjects serving on board from this general provision, must therefore be some vestige still remaining of the old law of the sea, which for convenience may be rested, as above stated, on the agreement to serve.

But in s. 687, there is another departure from general principles in the claim to maintain the jurisdiction acquired over after leaving sailors by their service, not merely when they are on shore, but also for three months after they have left the ship. This claim is irrespective of nationality. In the first case, the sailor at the time the offence was committed would either have been on shore by leave, or as a deserter: leave or desertion too might cover special cases coming within the 3-months rule. So long as the claim to jurisdiction is only put forward as concurrent with, and not exclusive of, the jurisdiction of the harbour, it is probable that the law of the sea may find a warrant for this extra-territorial legislation. But the jurisdiction extends to cases not covered either

by leave or desertion; the justification may possibly have to le Chapter I sought in the archives of the old Sea Courts, should it ever be challenged before the Court of Crown Cases Reserved, more especially in the case of foreigners serving on board British ships. It will be remembered that this was the question left undecided by the Court in R. v. Anderson.

We are dealing now only with the claim to jurisdiction made by English law, and not with its justification; and there is a practical question which results from the combined operation of ss. 686 and 687. Does the surrender of jurisdiction, under the former section, over British subjects on board foreign ships to which they belong, extend to a period of 3 months after they had left the ship? The answer to the question depends on further question: Is it true to say that the law of England recognises claims to jurisdiction by foreign countries identical in principle with the claims which it itself makes in foreign countries? Signs are not wanting that such is the law: but it cannot be asserted in too positive a manner.

[cf. p. 8.]

master

rant.

The second point of importance is the power of arrest with- Arrest by out warrant given to the master by s. 223, in cases of desertion or without warabsence without leave. When the arrest is within the dominions, the local police are directed to give assistance if required: but when it is out of the dominions, the arrest is expressly made subject to the local law. The section assumes, however, that a warrant will be granted by the local Courts, if the law does not permit the arrest to be made without warrant.

The power to take the offender on board ship instead of before a Court, is made dependent on the wish of the seaman, and it is to be presumed that this assent would be a complete answer to any action taken in the local Court based on want of jurisdiction: it would also probably cover the prior arrest. There is a point however which seems at first sight difficult-how far the directions to the Court given by s. 224, would be accepted by a foreign Court. It seems not improbable that the solution would be that they would be held, in so far as they affected the seaman, to be part of the original agreement between him and the master, and as such would be acted on by the Court.

The arrest of deserters by the local authorities in foreign countries is encouraged by the reciprocal action contemplated

Chapter I by s. 238 with regard to foreign deserters in any place without the dominions. Conventions are not contemplated as being essential; the condition of the issue of the necessary Order in Council, with regard to any country, is that it should appear that due facilities are or will be given by that country for recovering and apprehending deserters from British ships.*

Jurisdiction of Naval Courts.

Thirdly the jurisdiction given to the Naval Courts raises questions of some nicety. There is first the assumption of the right to hold judicial proceedings in a foreign country, and this not necessarily on board ship: and, in addition, there is the power to administer an oath, summon parties and witnesses, and compel their attendance and the production of documents": and also the right to punish persons who obstruct the hearing of the

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case.

The first assumption is of questionable validity: the second has been found in civil matters to be, in the case of some countries, an express violation of the local law, and sometimes attended with unpleasant consequences - a question to be referred to at greater length presently.

Apart from these two points, however, the main point involved may depend for its settlement on the broad question whether a law expressed to be extra-terrritorial in its operation, is not limited to British subjects in the absence of special reference to foreigners. It is probable that the rules which govern such legislation would be held to apply to the sections dealing with Naval Courts; in which case there would be difficulties in summoning other than British witnesses, and a foreigner obstructing the hearing of the Court could not be punished. The point is important, as if either the witness to be summoned, or the obstructer to be punished, were a foreign sailor within 3 months of his leaving the ship, the question already hinted at, whether jurisdiction over foreigners is rightly claimed would arise. If there is no difficulty raised as to the holding of the Court, the local authorities might possibly be looked to to assist in the summoning of witnesses. This, however, is only put forward on a suggestion, in the absence of any information as to the practice.

Finally there is the jurisdiction given to the British Consul

* There is a Convention between Great Britain and Portugal for the mutual apprehension of deserters, dated 24 July, 1842. Provisions for carrying it into effect were made by 12 & 13 Viet. c, 25.

by s. 689: a jurisdiction, it must be remembered, which is inde- Chapter I pendent of convention.

Jurisdiction

British

The offences with which he has to deal are these referred to of the in s. 687 : first, all offences generally against person or property Consul. committed either afloat or ashore in any foreign port; as before, this extends to offences by sailors 3 months after they have left a British ship and secondly, all offences on the high seas by seamen on board British ships.

No jurisdiction is given to the Consul to try the case, but he is to take the necessary steps in aid of the British Court before which the case will be tried: first, to enquire into the facts upon oath-which is subject to the remarks already made: and secondly, he is to take any action in his power to place the offender under restraint, and to send him for safe custody for trial to the United Kingdom or a Colony. The necessary details as to the duty of masters of British ships to take the offender on board are settled by the sub-sections, and need not detain us. From what has been already said, the questions involved in these consular duties will be seen to be: whether, in the absence of a convention a Consul can exercise a jurisdiction over sailors, some of whom may be foreigners, in respect of offences, which, though they are offences against English law, may also be offences against the local law: even if this is so, whether the power can be extended to sailors who have left the ship and are therefore no longer under the protection of the flag: and, in both cases, whether he can deliberately withdraw the offenders, without extradition, from the jurisdiction of the local Courts.

It cannot be denied that the enquiry into what appears, on the face of it, a simple question, What is the position of a ship in a foreign habour?- leads to no very conclusive answer. The absence of decision on the one side, with regard to foreign ships in British harbours: and on the other, the lack of any authoritative. statement that the English law as to English ships in foreign harbours conforms to what is called the law of nations, leave many debateable questions unsettled, and it must be sufficient, in the absence of further guidance, merely to have indicated them. The statement of a concrete case showing the practical limitations of the application of the law of the flag, may not be without interest.

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