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This is in substance the quarantine law of the United King- Chapter I dom at the present day. In striking contrast with the old law the exercise of so much of the jurisdiction as is extra-territorial 's strictly confined to three miles from the coast, but applies to foreign as well as to British ships.
cation of the
The limitation of the sphere of operation of these provisions The applito three miles from the coast will lead almost inevitably to the modern law suggestion that this legislation does not exceed the normal rules to the terriof jurisdiction, and therefore is not properly classed with the waters. Hovering Acts.
The law as to the territorial waters has already been touch- [see Part I Chapter III, ed upon, and will be dealt with more fully in a subsequent chap- and Part II ter, but it is necessary here both to repeat and to anticipate some- Chapter V.] what. The assumption of jurisdiction over the territorial waters by the Act of 1878 was specially limited to the criminal law. For all other matters the law remains precisely as it was at the time it was discussed by Cockburn C.J.: that is to say, that jurisdiction does not exist over these waters, but may be assumed and created by Parliament; and that as to the distance seaward, there is no agreement as to how far it should extend, but it does in fact, and may in theory, extend to such a reasonable distance as Parliament considers necessary. Legislation which at the time extended seaward to three miles was treated by the Chief Justice as identical in principle with legislation which extended further, the justification for the one as for the other being the necessity arising in any given case for protection, and the right thereupon arising of passing protective laws. It is therefore submitted that in this respect also, the modern Public Health Acts resemble the Hovering Acts in principle, and stand justified by the same doctrine.
THE PRINCIPLE OF SELF-DEFENCE IN LAW.
This examination of the common law doctrine of pursuit and of the two statutes exhausts all the authority and illustration which the law of England furnishes us with of a most important doctrine.* But it is suggested that in them there is to be
* The first Hovering Act was the one already referred to, 9 Geo. II. c. 35; and it will not be out of place to note the care with which the revenue was protected from this species of "wicked practice ". Hovering on land was dealt with as well as "hovering at sea": s. 18 providing that persons lurking, waiting or loitering within five miles from the sea-coast, or from any navigable river ", when there was reason
Chapter I found sufficient justification for the following proposition :—A State has the right to take all necessary and reasonable meaSummary of rule as to sures for the protection of its territory and rights, and the prevention of any breach of its laws
Further suggested limitation of the rule.
that for ordinary purposes a zone of moderate width, in practice varying between three and six miles, is recognised as the reasonable and necessary limit in which such measures should be operative: but that for certain special purposes a wider limit is sanctioned-as for the protec‐ tion of fishing: and for the protection of revenue and commerce, in which case a breadth of four leagues is not deemed to be unreasonable.
To this extent the law of peace trespasses on the law of war. In defence of its non-belligerent rights a State assumes to visit, molest, and detain, the offending ships of a friendly State. Such an assumption cannot but provoke adverse criticism; but I think that there is sufficient authority for saying that this right has now passed within the scope of that recognition which lies at the root of the law of nations. In two of the hypothetical cases referred to, rescue of political prisoners and seizure of a vessel going to sea without her clearance, there are clements which might at any moment turn the case into the exercise of a belligerent and not of a peaceful right but until that moment comes the right claimed must be judged from the point of view of peace, not war: and these cases have been examined from that point of view. The limits within which the law must operate to entitle it to recognition have been indicated: but a broader limiting principle may, it is submitted be laid down. A right claimed as a legal right, which is admittedly based on war-right, must be limited by the same fundamental principle as has been adopted by Statesmen to suspect that they were intending to assist in running prohibited or uncustomed goods, were liable to be whipped and kept to hard labour for a period not exceeding one month.
By s. 22, when a ship coming from a foreign port with tea or spirits on board was found hovering within the limits of any port, or within two leagues from the shore, or having been within a port did not proceed on her voyage, wind and weather permitting, the cargo was forfeited. By s. 23, if foreign goods were taken in unduly, or put out of any vessel within four leagues of the coast, without payment of custums duty, they were forfeited, with treble value, and the vessels into which they were unshipped, if not exceeding 100 tons, were also forfeited.
From a historical point of view, the most interesting Hovering Act was 56 Geo. III, c. 23, passed in 1816 to prevent the escape of Napoleon from St. Helena. By s. 4 foreign vessels "hovering within eight leagues of the coast of St. Helena " were declared liable to forfeiture if they did not depart when ordered. This Act was the result of an understanding between the allied Powers, which was embodied in a Treaty by which the custody of their prisoner was entrusted to the British Government. The United States adhered to the arrangement in a Treaty of Commerce concluded with Great Britain at the same period.
point of view
when discussing action which might lead to war. That princi- Chapter I ple was laid down by Mr. Webster in the correspondence between The right of the United States and Great Britain, in the case of the " Caro- self-defence line"-In order to justify a seizure in violation of the freedom of the sea, there must be "a necessity of self-defence, instant, of diplo overwhelming, leaving no choice of means, and no moment for deliberation --an act justified by the necessity of self-defence must be limited by that necessity and kept clearly within it ". This principle has ever since been accepted by Statesmen, Judges, and Jurists, as the only possible basis on which the seizure of ships in time of peace can be justified, and it may be taken as the test whether any principle of law which sanctions this extreme measure is permissible. The principles which have been suggested as governing the right of hot pursuit seem to conform to the letter to the rule laid down by Mr. Webster; the "overwhelming necessity of self-defence" is represented by the impossibility of otherwise obtaining retribution; for the absence of retribution in any given case inevitably leads to the commission of further offences; and in the case of legislation, the impossibility of otherwise preventing offences being committed. Whatever may be said of the somewhat vague provisions of the old quarantine law, I believe that the law of England falls well within this principle.
Beyond the limits as here laid down is the freedom of the sea. "Upon the ocean in time of peace all possess an entire equality it is the common highway of all, appropriated to the use of all and no one can vindicate to himself a superior or exclusive prerogative thereof." (Story J. the Marianna Flora).
But, if either England or any other country, should delibe- ton 37. rately ignore this principle, should pass a law protecting an industry, which was not of such a nature as legitimately to demand it, by chase and capture upon the high sea: or an industry entitled to such protection, but should enforce the penalties at an The penalty unreasonable distance, or in an unreasonable manner, and should for violation of the prinpersist in its action, the remedy for the State whose ships are ciples of seized, and whose subjects are imprisoned, is perhaps diplomatic is war. correspondence leading to financial compensation, but in the absence of this, is war.
THE LAW OF THE SEA.
But there is yet another question to be considered. Does it
Chapter I follow from what has been already said, that, save as we find it written in the common law and statutes of different nations, the law of the sea is lawlessness?
It is important to determine how far acts committed on the high sea are governed by law. Since there is, as between individuals, no international law of right and wrong, it is clear that as in the case of specific legislation, so in the case of the law applicable generally on board ship, each nation must, and may, act on principles which are peculiar to it. The question therefore cannot be considered except by the light of some given system of law. The law of England does not entirely ignore the law of other countries, and it is probable that what I have termed " The Law of the Sea" is as complete under the English as under any other system of jurisprudence; the question will therefore be considered simply as it is dealt with by the law of England.
So far as offences against person or property are concerned, Subjects in- statutory law is powerless to deal completely with the matter, as duties cannot be imposed on foreigners on board foreign ships: therefore protection of subjects at sea is of necessity incomplete.
given by English Courts.
But the redress which the English Courts give is not limited to statutory remedies. In allowing actions to be brought for wrongs committed abroad, our Courts recognise the existence of rights and duties outside the law which it is their special province to administer. It is true that, in giving redress according to the maxim locus regit actum, they have attached a condition that the act should also be wrongful by English law; but this does not alter the fact that our Courts do recognise the wrongfulness of acts committed outside the area of their territorial jurisdiction by a standard different from their own. How far can it be said that this principle is applicable to wrongs committed on the high sea?
CIVIL REDRESS FOR TORTS COMMITTED AT SEA.
First, take the case of damage to person or property on a board British ship on the high sea, both injurer and injured being on British ship, board. Quite apart from any special provision of the Merchant Shipping Act which might be applicable to the case, the whole of the common law applies on board British ships. The first and most elementary case is therefore completely provided for.
both parties being on
Secondly, take the case of damage to person or property on
a foreign ship on the high sea, both injurer and injured, as before, Chapter I being on board. As the presumption is that foreign ships are, Case 2. as British ships are, governed by the law of their flag-the extent Damage on to which it governs them being a question of evidence-the na- foreign ship, ture of the act would fall to be governed by that law. When a both parties being on civil action is brought in the English Courts, the case will be de- board. termined in the same way as an ordinary case of tort committed out of the jurisdiction: the law of the flag will be first looked to ‡cf. p. 14. in accordance with the maxim locus regit actum, and the English law will then be looked to in order to satisfy the rule that the act must also be wrongful by English law. The wrongfulness of the act being thus settled, an action will lie at the suit of either a British subject or a foreigner.
There is of course, in both this and in all other cases, a con- All the cases subject to dition precedent that the defendant be within the jurisdiction of procedure as the Court or, if he be abroad, that he has been duly served with to jurisdicprocess according to the rules of service out of the jurisdiction, and the Court so seized with the action.
The causes of action on the high sea which most naturally occur to one's mind are wrongful acts, resulting in injury to person or property. But it is clear that neither the two ele- Redress inmentary cases, nor the more complicated ones hereafter to be wrongful considered, can be limited to wrongful acts: the principle must words, be equally applicable to wrongful words. As to this, if authority were necessary, Bree v. Marescaux isa case in point, where a L. R. 7 Q. [L B. D. 435-1 slander had been uttered on board a British merchant ship at sea, and an action held to be maintainable.
So far as to actions for wrongs, where both parties are on Cases where board the same ship. But complications commence when the par- board diffeties are on board different ships, one British and the other foreign, rent ships. It becomes necessary here to examine with great care the Enquiry as difficult question as to the place in which an act is properly said act is in law to be committed in the instance, and putting the case broadly, committed. on the ship where it actually takes place, or on the ship where
the consequences ensue ?
to where an
The question in its criminal aspect, arose for consideration in the Franconia case, though only some of the Judges discussed it. "It becomes necessary to consider the second point raised by the [per CockCrown, namely, that though the negligence of which the accused was burn C.J.: guilty occurred on board a foreign ship, yet the death having taken place Ex. D. at on board a British ship, the offence was committed within the jurisdic- P. 232.]
L. R. 2