3. Mr. Everett, Secretary of State, added his opinion the following year: "Merchant vessels in port are subject to the police law of the port." 4. Mr. Marcy, subsequently holding the office, made at least four pronouncements relative to port authority, one of which suggests limitations, not named. "(1) As a general rule, the jurisdiction of a nation is exclusive and absolute within its own territories, of which harbors and littoral waters are as clearly a part as the land. Restrictions may be imposed upon it by treaties and a few have been yielded by common consent, and thus have come to be regarded as rules of international law."" "(2) Where there has been no concession by treaty or otherwise a government possesses jurisdiction over merchant vessels in its waters.' (3) Referring to a court decision (which this paper discusses in a later section), a communication including the following, was sent to a consul at Hong Kong: Throughout the elaborate decision of the court in the case of the schooner Exchange, it is assumed that the jurisdiction of the country extends over a foreign merchant vessel in its harbors. There are several other cases, which announces and sustain the same principle, as to the jurisdiction of a country over a foreign merchant or private vessel in its harbor, * * and the doctrine is approved by elementary writers. * * * * "There is in my mind no doubt that the State and Federal courts of this country could, if they chose to do so, and would, on any proper occasion, exercise jurisdiction over any foreign merchant vessel and its company in any of our ports, even in regard to transactions which might take place within our territory between the members of that company, and they would not yield to the claim of a foreign consul to surrender that jurisdiction as a matter of right.'" (4) Only a few days later, Mr. Marcy had occasion to elaborate this somewhat: 'While each country can unquestionably exercise jurisdiction in its own ports over the private or merchant vessels of the other, it is presumed there is a mutual disposition on both sides not to exert it in a way which will interfere with the proper discipline of the ships of either nation." 10 An emphatic opinion was given in 1876: "A merchant vessel, except under some treaty st pulation, has no exemption from the territorial jurisdiction of the harbor in which she is lying." " Many of the statements here quoted have been occasioned by the commission of crimes on board merchant ships in foreign ports, and are taken from ensuing correspondence on the subject. Their validity for cases involving the same questions of authority, however, is none the less, even though there may be no criminal point under discussion but only jurisdictional doubt. 5. Mr. Bayard, Secretary of State, wrote thus in 1885: "It may be safely affirmed that when a merchant vessel of one country visits the ports of another for the purposes of trade, it owes temporary allegiance and is amenable to the jurisdiction of that country, and is subject to the laws which govern the port it visits so long as it remains, unless it is otherwise provided by treaty. "Any exemption or immunity from local jurisdiction must be derived from the consent of that country." 12 6. The Attorney General, Mr. Cushing, rendered an opinion in 1856 when a crime had been committed at sea and the ship was compelled to go into port and the criminals forcibly withdrawn from the ship by local authorities. Mr. Moore's interpretation of the Attorney General's opinion is this: "The local port authority has jurisdiction of acts committed on board of a foreign merchant ship while in port, provided those acts affect the peace of To Mr. Ingersoll, Feb. 17, 1853, MS. Inst. Gt. Britain, XVI. 192. Digest, vol. 2, p. 273. Mr. Marcy to Mr. Clay, Aug. 31, 1855, MS. Inst. Peru XV. 175. Digest, v. 2, p. 275. Quoted in Moore's Quoted in Moore's To Mr. Dobbin, Secretary of Navy, April 21, 1856, 45 MS. Dom. Let. 212. Quoted in Moore's Digest, v. 2, p. 276. Apr. 14, 1856, 21 Disp. to Consuls, 567. Quoted in Moore's Digest, vol. 2, p. 288. 10 Mr. Marcy, Secretary of State to Mr. Crampton, Apr. 19, 1856. MSS. Notes, Great Britain. Quoted in Wharton, Francis. A digest of the international law of the United States, Wash., G. P. O. 1886, vol. 1, pp. 131-132. 11 15 Op., 178, Taft, 1876. Quoted in Wharton's Digest, vol. 1, p. 129. 12 Mr. Bayard to Mr. Hall, minister to Central America, Mar. 12, 1885, For. Rel. 1885, 82, 83. Quoted in Moore's Digest, vol. II, p. 278-9. the port, but not otherwise; and its jurisdiction does not extend to acts internal to the ship, or occurring on the high seas. "The local authority has a right to enter on board a foreign merchantman in port for the purpose of inquiry universally but for the purpose of arrest only in matters within its ascertained jurisdiction."' 13 7. Mr. Webster, earlier in our history, at the time when the Creole, an American vessel, had been carried into the English port of Nassau by persons who had assumed unlawful command after committing murder, corresponded with Lord Ashburton giving utterance to noteworthy opinions not wholly according with other sentiments quoted here. The charge was made that while in the port of Nassau, the colonial authorities had attempted interference with the condition of persons on board, making the effort to free them in accordance with British law even though they might be slaves under the law of the country whence they came. In this particular instance the charge was not proved conclusively, but as other similar complaints had been made by American vessels seeking shelter in the ports of the Bahama Islands. Mr. Webster, then our Secretary of State, seized the opportunity to discourse at length on the international law pertinent to the subject. It was his contention that the local laws of British territory whereby slavery could not exist should not be operative on American vessels in their ports, when they carried persons legally slaves at home. He felt the grievance more acutely because the offense was committed against vessels seeking only temporary shelter. He wrote thus: 66 But, my Lord, the rule of law, and the comity and practice of nations, go much further than these cases of necessity, and allow even to a merchant vessel, coming into any open port of another country voluntarily, for the purpese of lawful trade, to bring with her and keep over her, to a very considerable extent, the jurisdiction and authority of the laws of her own country, excluding to this extent, by consequences, the jurisdiction of the local law. A ship, says the public'sts, though at anchor in a foreign harbor, preserves its jurisdiction and its laws. It is natural to consider the vessels of a nation as parts of its territory, though at sea, as the State retains its jurisdiction over them; and, according to the commonly received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dom nion." 99 14 He differentiates quite clearly between the types of authority which exist in port, and the separate agencies to exercise it: "It is true that the jurisdiction of an nation over a vessel beloging to it. while lying in the port of another, is not necessarily wholly exclusive. We do not so consider or so assert it. For any unlawful acts done by her while thus lyng in port, and for all contracts entered into while there, by her master or owners, she and they must, doubtless, be answerabie to the laws of the place. Nor, if her master or crew, while on board in such port, break the peace of the community by the commission of crimes, can exemption by claimed for them. But, nevertheless, the law of nations, as I have stated it, and the statutes of governments founded on that law, as I have referred to them, show that enlightened nations, in modern times, do clearly hold that the jurisdiction and laws of a nation accompany her ships not only over the high seas, but into ports and harbors, or wherever else they may be water-borne, for the general purpose of governing and regulating the rights, duties, and obligations of those on board thereof, and that, to the extent of the exercise of this jurisdiction, they are considered as parts of the territory of the nation herself." " 15 He further elucidates his conception of the principles that ought to govern international relations: "Your Lordship will please to bear in mind that the proposition which I am endeavoring to support is, that, by the comity of the law of nations and the practice of modern times, merchant vessels entering open ports of other nations. for the purpose of trade, are presumed to be allowed to bring with them, and to retain, for their protection and government, the jurisdiction and laws of their own country. All this, I repeat, is presumed to be allowed; because the ports are open, because trade is invited, and because, under these circumstances, such permission or allowance is according to general usage. It is not 13 See Moore's Digest, vol. 2, p. 292. Cushing, At. Gen., 1856, 8 Op. 73. 14 Works of Daniel Webster, 14th ed., Boston, 1866, vol. 6, p. 306. 15 Op. cit., p. 307. * * denied that all this may be refused; and this suggests a distinction, the disregard of which may, perhaps, account for most of the difficulties arising in cases of this sort; that is to say, the distinction between what a State may do, if it pleases, and what it is presumed to do, or not to do, in the absence of any positive declaration of its will. A State might declare * that, on the arrival of a foreign vessel in its ports, all shipping articles, and all indentures of apprenticeship between her crew and her owners or masters, should cease to be binding. These, and many other things equally irrational and absurd, a sovereign State has doubtless the power to do; but they are not to be presumed. * * * "It is true that it is competent to the British Parliament [or the Congress of the United States], by express statute provision, to declare that no foreign jurisdiction of any kind should exist in or over a vessel after its arrival voluntarily in her ports. And so she might close all her ports to the ships of all nations. ** * Her power to make such laws is unquestionable; but, in the absence of direct and positive enactments to that effect, the presumption is that the opposites of these things exist. While her ports are open to foreign trade, it is to be presumed that she expects foreign ships to enter them, bringing with them the jurisdiction of their own government, and the protection of its laws, to the same extent that her ships and the ships of other commercial states carry with them the jurisdiction of their respective governments into the open ports of the world." 16" (B) Writings of international law experts.--1. The Institute of International Law, an "exclusively scientific association without official character," whose object is "to aid the growth of international law," " adopted certain regulations concerning the status of ships and their crews in foreign ports. Considerable discussion preceded their formulation, but in 1898 there resulted a number of such regulations. The most pertinent are quoted here. "ART. 2. The said ports, harbors * * are not only under the right of sovereignty of the States whose territory they border, but are also part of the territory of these States. * * * "ART. 5. The State as sovereign has the right: "To regulate the conditions of entrance and of sojourn to which those who frequent the part of the coast mentioned in article 1 must conform.' " 18 SEC. II.-Merchant Marine * * * "ART. 25. Foreign merchant ships in a port shall be subject, as a general rule and except for the formal derogations sanctioned by the following articles, to the police and inspection regulations and to all the regulations in force in the port in which they are received." 19 2. Charles Cheney Hyde states his conclusions thus: 66 'The exercise by a State of jurisdiction over its ports and bays becomes a matter of international concern in so far as it is applied to foreign merchant vessels. Over such ships and their occupants the territorial sovereign may assert jurisdiction. ** * "A foreign merchant vessel and its occupants are, upon entering port, subject to the operation of the civil as well as criminal laws of the State. Thus the ship may be obliged to conform to local regulations, prohibiting, for example arrival at certain seasons with a deck cargo. The master, in the hiring of seamen or in contracting for the carriage of freight to foreign countries, may find himself reasonably subjected to strict limitations imposed by local statute. * * ** "No undertaking lawfully entered into abroad and contemplating performance in that domain, as by the carriage of goods thereto, will be deemed to be entitled to respect if it defies the will of the sovereign thereof. The applicability of this principle to vessels engaged in foreign commerce must be obvious.” 20 18 Op. cit., pp. 308-309-310. 17 Quoting from the constitution of the institute. 18 Resolutions of the Institute of International Law dealing with the law of nations. Collected and translated under the supervision of and edited by James Brown Scott, director. New York, 1916, pp. 144-145. French text, Annuaire, vol. 17, p. 273. 19 Ibid., p. 150. 20 Hyde, Charles Cheney. International Law, chiefly as interpreted and applied by the United States, Boston, 1922, vol. 1, pp. 393-395–396. 3. Henry Wheaton avers that merchant vessels in foreign ports must obey the laws of the country to which the port belongs. * 21 "The maritime territory of every State extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to the same State. ** * Within these limits its rights of property and territorial jurisdiction are absolute and exclude those of every other nation."" 4. William Edward Hall shows that two schools of thought exist relative to control of merchant ships in foreign ports. By the practice of many States they enjoy a varying amount of immunity from local jurisdiction, since the crew of such a ship, according to some "is an organized body of men governed internally in conformity with the laws of their State, enrolled under its control. and subordinated to an officer who is recognized by the public authority; although therefore the vessel which they occupy is not altogether a public vessel, yet it carries about a sort of atmosphere of the National Government which still surrounds it when in the waters of another State." 19 22 As some writers say, ships are floating portions of the country upon which they depend, or as the doctrine is sometimes expressed, they are a continuation or prolongation of territory." 23 It is granted, however, that vessels entering ports of a foreign state are subject to local jurisdiction on all points in which the interests of the country are touched." 25 5. Mr. Chamberlain, of the United States Department of Commerce, in a discussion of a draft convention concerning communications and transit, proposed at a conference under the League of Nations, emphasizes the fact that almost > any measures deemed necessary or expedient may be taken so long as equality of treatment is extended to all nations. 66 Maritime ports are under sovereignty or authority of individual states, 'which by their national legislation have at times imposed and still can and in some instances do impose on the use of their ports limitations which, in effect. diminish the use of the high seas as the common highway of nations." 28 6. Charles Noble Gregory, another American writer, has formulated in a law journal article the substance of a paper given before the International Law Association at Antwerp in 1903. In it he gives an exposition of what he conceives the law of nations decrees concerning merchant ships in foreign waters, citing in addition certain court decisions (to be incorporated in the next section of this paper). * ** * Jurisdiction over merchant ships in ports and harbors is fully conceded to local authorities "as matter of right, with a practice of not exerting it unless interests beyond those of the ship and her company are involved *** * by comity it came to be understood among civilized nations that matters affecting only the vessel and her crew, and not involving the peace or dignity of the country or tranquillity of the port, should be left to the authorities of the nation to which the vessel belonged. * * * "Almost all the cases involving jurisdiction over foreign merchant vessels have arisen with reference to ports and harbors, and the local law is commonly treated as having a far more assured hold in such waters than in the littoral sea." 99 27 After presenting his compilation of various published opinions, Dean Gregory summarizes the article in the following conclusions: "It is submitted that the result of the authorities is "1. That a foreign government ship in territorial waters is not exactly 'extraterritorial', but simply 'inviolable' by local authority, that the extraterritoriality applies only to her foreign screw and equipments, and this only by general comity. (P. 354.) "3. That as to vessels belonging to private owners in foreign territorial waters, jurisdiction attaches whether those waters are inclosed or littoral, 21 Wheaton, Henry. Elements of international law, 4th Eng. ed., by J. Beresford Atlay, London, 1904, pp. 275–276. 22 Hall, William Edward. A treatise on international law. 6th ed. Atlay, London. New York, and Toronto, 1909, pp. 199-200. 23 Ibid., p. 244. 24 Ibid., p. 248. Information Bulletin No. 202. Edited by J. B. 25 Chamberlain, Eugene Tyler. The Geneva Conference and ocean shipping. Trade waters. Jurisdiction over foreign ships in territorial Michigan Law Review, Vol. II, no. 5, February, 1904, pp. 348, 349, 352, 353. very much at the discretion of the local state, but with a constant practice in local authorities to refuse jurisdiction if the ship and its company are alone affected. * "6. That local law enacted by any state may by its terms be made applicable to such foreign vessels and their crews coming within the territory, and will then be enforced against them by the local courts." 28 29 7. Charteris, a British lecturer on international law, summarizes the two rival systems of territorial criminal jurisdiction-the British and French-referring incidentally to civil jurisdiction, and cites a few international precedents.2 "The rival systems are the British, to which, it is understood the United States adheres save in cases covered by express convention, and the French, which counts numerous adherents among the less important maritime powers, as well as the Institute of International Law." Both systems have this in common that they deny to foreign merchantmen exterritorial privileges, but they differ alike in basis and in essential character. The British system, on the one hand, asserts in theory the complete subjection of the ship to the territorial jurisdiction-tempered in England as regards civil jurisdiction by certain limitations in matters not vitally concerning the littoral state, of which, however, the latter is the sole judge * * * "The French system, as formulated in the celebrated Avis du Conseil d'État of November 20, 1806, while maintaining the same fundamental rule of subjection to the local jurisdiction, expressly renounces French jurisdiction over matters of internal discipline, and over crimes and offenses committed on board by members of the crew, yet retains in reserve the right of the littoral state to intervene * * * where the peace and good order of the port is actually compromised." " 31 Charteris refers to certain conflicts of law which have occurred in days of slavery when vessels carrying slaves entered ports where such bondage was illegal. It was "established by the arbitral award of the Emperor of Russia, May 17, 1875, in the case of the Marie Luz, that a State in which slavery was expressly forbidden was entitled to enforce its prohibition and set free slaves carried on a foreign vessel within the limits of its territory." The Peruvian vessel Marie Luz, carrying coolies from Macao to Peru, put into Yokohama because of bad weather. One escaped, took refuge on a British ship, and was given to Japanese authorities. Because of this incident and charges that captain had ill treated the passengers, the Japanese courts were invited to pronounce on the validity of the contracts made in Macao. These contracts were declared void and coolies were freed, since the public law of Japan did not tolerate slavery. Lex loci contractus was obliged to yield to lex fori. Moreover the coolies were repatriated at Japanese expense. Naturally a conflict with the Peruvian Government ensued, and this was settled by the arbitral award of the Russian emperor.' 33 A similar occurrence was found in our own country. When a British ship entered a port of South Carolina where slavery still was maintained, local law preventing free negroes to be abroad in city, "if there were any free negroes among her sailors, though British subjects, they were taken from the ship by officers of the port and locked up until the vessel cleared outwards, when they were returned. That the intervention of the local authorities effected no permanent alteration in the status of the negroes makes no difference to the general principle." " 8. Henry G. Crocker in a treatise on "The extent of the marginal sea " has presented an admirable collection of the views of representative publicists on this important subject, and their discussions include many pertinent 28 Op. cit.. p. 355. 20 Charteris, A. H., The legal position of merchantmen in foreign ports and national waters: The British Yearbook of International Law, 1920-21, pp. 45-96. 30 The French system has been adopted in Portugal, Mexico, and Brazil by legislation (Clunet's Journal, 1876, p. 423), in Italy, Belgium, and Greece by administrative decree (Ibid., p. 414). and in the United States by treaty, e. g., consular conventions with France, Feb. 23, 1853, sec. 8 (as regards internal discipline), and with Germany, Dec. 11, 1871. sec. 13 (United States Treaties in Force, 1894, pp. 268. 283). 31 Ibid., p. 45-46. 32 Op. cit., p. 85-86. 33 Op. cit., p. 85. See also Annuaire de l'Institut de Droit International, 1877, p. 353. 34 Charteris, p. 86. 36 Washington, G. P. O., 1919. |