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BRITISH SHIPS ON THE HIGH SEA

Chapter I

principles of

Speaking broadly, so far as ships and persons on board General them are concerned, there are three general principles governing law applicathe application of law to them.

First the common law applies on board :

Secondly there is a body of legislation specially applicable to ships at sea, part of which is the merchant shipping law, and the remainder the extension of the general criminal law to the high sea, or to places within the jurisdiction of the Admiral :

Thirdly statutes do not apply on board, unless

(a) they fall within the previous principle: or

(b) they are extra-territorial, applying beyond the realm
without limit: or

(c) they apply in terms, or are specially extended to them. I believe this to be the law. The third principle however is given with much hesitation, for it is at variance with an opinion. sometimes enunciated, and requires much consideration.

Ships, it is said, are part of the territory of the country to which they belong : i.e. in which they are registered: more properly, of the country whose flag they are entitled to fly.

ble on board

ship.

This is what has been called the "floating island" theory, [Part I, already noticed in so far as the nationality of persons born on P. 45.] board ship is concerned. The leading case on the point is R. v. [L. R: Anderson and it is necessary to give a brief analysis of the de- 161.] cision.

An American citizen, serving on beard a British ship, caused the death of another American citizen, serving on board the same ship, under circumstances amounting to manslaughter, the ship at the time being in the river Garonne, on her way up to Bordeaux, which is go miles from the open sea. The river was within the boundaries of the French Empire: and the ship was about 45 miles up the river, but at a place below bridges, and where the tide ebbed and flowed, and great ships went. The river was half a mile wide, and the ship was 300 yards from the nearest shore.

I C. C. R.

The following principles were laid down by the Court of Principles Crown Cases Reserved :

i. All seamen, whatever their nationality, serving on board British ships, are amenable to the provisions of British law.

ii. The ship was within the Admiralty jurisdiction of Eng

laid down in R. v.

Anderson.

Chapter I land, which extends over British vessels when they are sailing on the high sea, and also when they are in the rivers of a foreign country, at a place where the tide ebbs and flows, and where great ships go.

[now M, S. Act, 1894

s. 087.j

These

iii. The offence having been committed within the Admiralty jurisdiction, the Central Criminal Court would have stood in the same position as if it had been committed within its jurisdiction on land.

iz. Under these circumstances, it was unnecessary to consider the effect of s. 267 of the Merchant Shipping Act, 1854, which gave jurisdiction over the crew of British vessels in foreign ports.

2. If the case had turned exclusively on that section, it would have been necessary to consider whether legislation for a person on board ship admittedly within French territory, more especially having regard to its extension to foreign sailors three months after they had left the ship, was within the power of Parliament or whether such a provision would not have to be construed" according to the principles of international law", and so confined "to a British subject, or persons subject to British protection".

On the mere statement of these principles certain considerations arise :-

As to i. This clearly must be stated in more general terms, considered. and cannot be limited to seamen.

principles

1894,

As to ii. The Admiralty jurisdiction in places where the tide ebbs and flows in foreign rivers, cannot oust, but must be concurrent with, the jurisdiction of the Courts of the foreign country, unless under the circumstances of any given case that jurisdiction is renounced.

As to iii. The Central Criminal Court convicted on some definite law and the principle must be equally applicable to some more modern offence than murder: e. g. an offence against the Post Office Acts.

As to iv. If, for the reason given, it was not necessary to [M. S. Act, consider the difficulties which arose under this section of the. Merchant Shipping Act, and the question of international law involved in it, neither would it be necessary in any case to consider the more simple sectiont of that Act which gives general jurisdiction over all persons on board a ship on the high sea.

s. 686 :-jurisdiction in case of

offences on board ship.]

As to . It is clear that this special section of the Act does

raise a difficult question of international law, and jurisdiction of Chapter I Parliament: but the same question must also arise in connection. with the jurisdiction of the Admiral itself; for, whether that depends on statute or not, it is nevertheless a claim of jurisdiction over persons, subjects or others, under the flag, but admittedly within foreign territory.

The manslaughter having been committed on board, the fact that a wider jurisdiction was claimed by the section of the Act, was irrelevant to the issue. The fact that the Court dealt with the argument seems to show that the principles iv. and v., were not specially directed to the provision which affects foreign sailors.

All these points form the centres of discussion in the following chapters.

a

R. v. Anderson decided in 1868, was followed in 1882 by R. v. Carr. The facts were these: certain bonds were stolen from British ship lying afloat, but moored to the quay, in the river at Rotterdam, 16 or 18 miles from the sea, below bridges, and within the ebb and flow of the tide. The bonds were afterwards wrongfully received in England by the prisoners with a knowledge that they had been thus stolen.

The Court of Crown Cases Reserved declined to accept the limitation of i. to seamen, and did not touch upon the question as it was affected by statute. It may be doubted, with all respect, whether the decisions may be taken as entitled to greater weight than their position in the development of the subject gives them—a development which has been very slow, if we are to judge it by the fact that the question whether the application of the law (whatever that law may be) on board ship is limited to seamen, was still regarded as an arguable point in 1882.

[L. R: 1 C.

C. R. 161.]

L. R. 10 Q. B. D. 76.]

But underlying the decision in R. v. Anderson, was the fun- The " floatdamental idea that a ship is a "floating island ".

"I retain the opinion I expressed at the trial. I told the jury that the ship being a British ship was, under the circumstances, a floating island where British law prevailed: that the prisoner, though an alien, enjoyed the protection of British law, and was as much subject to its sanctions, as if he had been in the Isle of Wight". (Byles, J.)

There are a vast number of cases which decide that when a ship is sailing on the high seas, and bearing the flag of a particular nation, the ship forms a part of that nation's country, and all persons on board

ing island theory:

Chapter I of her may be considered as within the jurisdiction of that nation whose flag is flying on the ship, in the same manner as if they were within the territory of that nation." (Blackburn J.)

If the ship is territory, using the term as a fact and not as a metaphor, it hardly seems necessary to dwell on the "protection of the flag", for the flag would then be no more than the indication of territory. The law of the high sea would certainly be simplified, and might be stated thus: the jurisdiction of the Admiral was created, and afterwards transferred to the Central Criminal Court, in order to reach certain floating portions of the territory beyond the jurisdiction of the Courts, which ends with the limits of the counties.

The consequences of the floating island theory have not been worked out with sufficient completeness to warrant its acceptance without further examination. Not only would the common law apply on board, but also all statutes automatically. Yet this is certain, that if the ship goes above bridge, she would suddenly lose her national character, pass within the sole jurisdiction of the foreign country, and the common law and the statutes cease to apply, save in so far as discipline on board is concerned.

Again,even though ships are said to be territory, civil process cannot be served on board: for the civil principle corresponding to the county limit of criminal jurisdiction, is that the King's writ does not run beyond the sea. Neither can extradition warrants be executed on board.

It seems more than probable that the rule as to the civil writ, as to the county limit of criminal jurisdiction, and as to the territoriality of Acts of Parliament, are all variations or applications of the same principle, which is expressed more generally as the territoriality of the sovereignty. Out of the jurisdiction of the Courts, but within the normal jurisdiction of Parliament is an anomaly but one which must exist if ships are territory: for both the civil and the criminal rule of jurisdiction are inelastic.

But it is very doubtful whether the floating island theory has ever been advanced except in respect of the application of the criminal, or quasi-criminal, law. Cockburn C. J. gave it very qualified approval in R. v. Keyn, limiting himself to the words T. R. 2 Ex; it has been likened ". And in the same case, Lindley J. treated

D. at p. 161.

it as merely a metaphorical expression, giving reasons why it Chapter I was not true strictly, and explaining the application of the common law on board ship by the very simple reason, that "otherwise the persons on board would be subject to no law at all ". Yet, unless a ship is territory, Marshall v. Murgatroid was [L. R. 6 wrongly decided.*

NOTE.

Q. B. 31.]

It will be convenient to set out at this point Lindley J's summary Lindley J's of reasons why merchant ships cannot be considered territory. summary of

reasons

This contention renders it necessary to investigate the doctrine against the that a merchant ship is part of the territory of the country whose flag" territorialshe bears. ity of

merchant

It is obvious that she is not so in point of fact; and it is easy to ships": show that the doctrine holds good to a very limited extent indeed. First, R. V. Keyn. it is admitted that a foreign merchant ship, which enters the ports, har- [L. R. 2 Ex. .bours, or rivers of England, becomes subject to English law, her so- D. at p. 93.] called territoriality does not in that case exclude the operation of English law: Cunningham's case.

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Secondly, it is conceded that, even in time of peace, the territorial- [28 L.J: M. ity of a foreign merchant ship, within three miles of the coast of any c. 66: State, does not exempt that ship or its crew from the operation of those cf. Part I, laws of that State which relate to its revenue or fisheries.

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Thirdly, in time of war the so-called territoriality of a ship of one of the belligerents does not subject it to invasion or capture within three miles of a neutral coast.

"Fourthly, in time of war so-called territoriality of a neutral merchant ship does not exempt it from invasion in search of contriband of

war.

p. 14.]

"Fifthly, in time of war this country has invariably denied that the NOTE on territoriality of a neutral merchant ship protected enemy's goods on "territorialboard; and although England has agreed with some nations that in ity of merfuture free ships shall make free goods (unless contraband of war), En- chant ships" gland resolutely maintains the old doctrine against all other nations.

"In all these cases the territoriality of the ship becomes an unmeaning phrase, and care must be taken not to be misled by it, and not to allow the general assertion that a ship is part of the territory whose flag she bears to pass unchallenged, and to be made the basis of a legal argument.

When, indeed, a ship is out at sea in waters which are not the territorial waters of any State, it is right that those on board her should be subject to the laws of the country whose flags she bears; for otherwise they would be subject to no law at all. To this extent a ship may be said to be part of the territory of the country of her flag (see Manning, Law of Nations, pp. 117-255); but so to speak of her is to employ a metaphor, and this must never be lost sight of."

* I do not know of any other case in which the question whether statutes apply automatically on board ship has been discussed: it has therefore been necessary to treat it as the leading case, although the judgment was of the shortest. Its date is 1870, that is, two years af er R. v. Anderson. Blackburn J. give a judgment in both cases.

contd.

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