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Chapter I

Territorial waters.

[Forsyth's Cases in Constitu

p. 399.]

Two Italian ships (both merchant vessels, or one a merchant ship and the other a man of war) are lying in an English harbour. A seaman deserts from the merchant ship. How far may the captain of the other vessel assist in his recapture? The answer would seem to be: if he is escaping in one of the ship's boats he may be lawfully recaptured without the intervention of the local authorities, for he is still within the sphere of the jurisdiction of his flag; and what is true of one ship must also be true of two or more ships and their boats under the same flag. If, however, he is swimming on shore his capture would fall within the province of the Consul, with the assistance of the local authorities. But if he committed an offence while swimming on shore, it would be for the local authorities to deal with him. The conditions might however be again varied if the sailor were escaping after having committed a crime on board.

The foregoing principles have to be applied to territorial waters in accordance with the principles already established in respect of them. As these waters are still high seas, the law of the flag will obtain until it is excluded by the application of the national law to this area.


It has been said, on the authority of Law Officers of both England and the United States, that there is a further exception to the local jurisdiction, when foreign ships are driven into port through stress of weather. The question however needs some examination.

In the case of the "Industria", a Spanish schooner which had put into a port in Jamaica in distress with five slaves on tional Law", board, the Law Officers reported that "she could not be deemed to have thereby committed any offence against the laws of Great Britain", and that therefore " she was not liable to seizure and confiscation by the civil authorities of the Island." She might however, they continued, have been seized by a British cruizer under the slave-trade treaty with Spain, and carried before a Court of Mixed Commission for adjudication.

[ib p. 400.]

The " Creole" was an American ship, which put into port at the Bahamas with slaves on board, and the question was this time examined by the Attorney General of the country to which the ship belonged.

The opinion given was to the following effect :--

The principle is that if a vessel be driven by stress of weather, or forced by vis major, or, in short, be compelled by any overruling necessity, to take refuge in the ports of another, she is not considered as subject to the municipal law of that other, so far as concerns any penalty, prohibition, tax or incapacity that would otherwise be incurred by entering the ports: provided she do nothing further to violate the munici pal laws during her stay. The comity of nations.....has gone very far on this point..... When a ship is driven into port by stress of weather, and there unloads her cargo, she is not bound to pay duties or customs in that place, because she came there by force: nor is she liable to forfeiture neither are duties to be paid on goods forcibly driven into port ". This opinion was based on the territoriality of merchant


"Beyond all question, a ship on the high seas, beyond a marine league from shore is part of the territory of the nation to which she belongs. Why should her being blown &c. within a marine league, by tempests, &c. make a difference?"

Chapter I

With deference, too wide a doctrine seems to be here laid down. Undoubtedly, if, by the manner of her coming, the ship had neglected to observe some formalities required by the law of the port-as non-observance of quarantine regulations-stress of weather would be a good defence. But exemption to local laws, more especially revenue laws, requires, it is suggested, express legislation. There does not seem to be any such exemption in the [Ordinance English Customs Acts: and an example of express legislation in 1888, opposite sense is to be found in the law of Mauritius, which pressly enacts that

all wreck, being foreign goods brought or coming into the Colony, shall be subject to the same duties as if the same were imported into the Colony.


No. 38 of

art. 37.]

tection of

But although merchant ships are not, so far as their own nationals are concerned, part of the territory: and although the doctrine of the "territoriality of merchant ships" will not, as The "proHistoricus showed, bear a moment's analysis in time of war: yet, the flag", in time of peace, a general recognition of their nationality is ac- and the corded to them, which goes far to support the popular notion the sea". that, so far as other countries are concerned, merchant ships are part of the territory of their flag. The "protection of the flag" is

"freedom of

Chapter I the expression used to symbolise the right of ships and those on board, to pass unmolested on the high seas.


Slave-trade offences.

It would serve no useful purpose to search for some term which should connote with accuracy the status of merchant ships upon the high sea: "private property protected by the flag" is perhaps nearest to the mark. For, except as to actions in rem, the cause of which is treated as if it were an act of the ship itself, the main difficulty turns on the question how to reach persons on board ship: how far they are sheltered by the flag which protects the property on which they are how far the "freedom of the sea" may be claimed by the individual, as distinct from the nation which claims that freedom for its ships.

But there are exceptions even to the freedom of the sea. No nation claims to protect its subjects who are engaged in piracy. It is the great offence against the law of nations itself, in redressing which all nations take their part. The law is graphically summarized by an epithet and an aphorism: Pirates are hostes humani generis : against them there is no peace. Seizure and all the indignities of the sea are allowed: and the law, with extreme severity, holds justified visitation on suspicion of piracy, even though the innocent purpose be thereupon demonstrated.

Slave trade offences do not rank with piracy. They are dealt with by statute, and recognition of the statute is secured by convention. But trading in slaves is not an offence, nor indeed is there any other than piracy, against the law of nations, and sei_ zure or search of a vessel carrying slaves can only be justified [Dodson's under convention. (the Le Louis.) Admiralty,


The protection of the flag is a curious branch of the law of the high sea, which has led some nations into strange and somewhat illogical discussions.

Into the many cases in which the "protection of the flag", and its antithesis the "the right of search", have been discussed I do not propose to enter, for they would lead us too far from the main question under consideration: and they have been long and much discussed by writers on international law.

There is however one question which immediately suggests itself. How far can the freedom of the sea be used to turn ships. into asylums of refuge from the consequences of offences committed on shore? How far may the flag be used to protect the


from on

individual, by denying a right of entry on board to the executive Chapter I officers of the country where the offence was committed? And on the other side: How far may a country take measures to protect itself against an abuse of the privileges of the sea? The question is simplified to a certain extent by the law of extradition in the case of ordinary offenders. For, whether a ship be absolute territory or not, there can be little doubt that extradition could not be refused of an offender whose safety from arrest depended on the protection which the flag afforded him. The process might ship-board perhaps be somewhat cumbersome, but would probably be ultimately successful. The circumstances of the different cases would vary considerably, and some become complicated by other principles: as where the vessel carried the refugee into harbour in a third country. The nature of the question raised must however be borne in mind: it is extradition as from the ship, and not as from the country at which the ship has touched.

But there is for some cases another very effective remedy ; the State whose laws have been broken, is allowed to put the matter into the hands of its own officers, and so to compel obedience, or to enforce punishment. This remedy is generally known as the right of "hot pursuit ".


The law of the freedom of the sea, as it has been stated many times over by Statesmen and Judges, is this: "The right of visitation and search is a belligerent right, and no nation. which is not engaged in hostilities can have any pretence to exercise it upon the open sea. Any visitation, molestation, or detention of vessels bearing the flag of a friendly State by force, or by the exhibition of force, is in derogation of the sovereignty of that State." All these things the right of hot pursuit claims on behalf of the pursuing State.

Stated broadly, the principle is that when an offence has been committed within the jurisdiction, by a foreign as well as a British ship, and she gets away to sea, she may be pursued on the high sea, captured, and brought in to be dealt with according to law. We have here a direct exercise of force-usually by the Executive independent of any legislative warrant, though the principle may Elements of be embodied in legislation-upon the high sea. The condition is the law of that the pursuit should be started immediately, that it should be "hot pur


Chapter I"hot pursuit : " but this condition being satisfied, there appears to be no limit of space or time during which it may continue. The pursuit may be continued the high seas over, but presumably stopping when the escaping vessel enters the area over which a foreign nation exercises its legislative jurisdiction.

Offences against

But why is this" hot pursuit " justified? Why does is not violate the freedom of the sea? The answer must be found in the nature of the offence. And for this reason: it is certain that the law, confined as it is to a purely territorial operation, may in ordinary cases be evaded by escape to a foreign country. It is certain too, that if an offender, though taken red-handed, escape on board a foreign ship, he cannot be pursued beyond low-water mark, however hotly the remedy, as indicated above, then lies in extradition. But the case can hardly be the same where the ship participates actively in the rescue. The difference then, if hot pursuit of ships is justified, must lie in the nature of the offence committed.

The two familiar examples of the application of the principle are offences against the revenue laws, or against the fishery laws, committed within the revenue or the fishery waters respectively. revenue and In these cases there is authority both in practice and judicial fishery laws. opinion, that hot pursuit outside those areas on to the high sea [11 Whea- would be justified, and the seizure upheld as consistent with the ton's Rep. 37-1 law of nations. (Story, J. the Mariana Flora).

Apart from the questions which the delimitation of these respective areas involves, these two cases, as it were, speak for themselves, and seem to indicate the essential features of the principle.

From the nature of the offences the ship would be used by the master for the commission of the offence, and pursuit and seizure are probably justified where the penalty is confiscation of the ship. For this an analogy is to be found (though indeed it may be no more than fanciful), in the case of hot pursuit of wild animals. The temporary property which is recognised in wild animals which have been confined is maintained during escape, if they are immediately pursued beyond the preserve. And it may be that where an offence has been committed for which the penalty is confiscation, the law regards the property of the State in the ship as having been so far created, that it may be preserved by immediate pursuit beyond the jurisdiction.

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