CHAP. XII Stores of intoxicating liquors is shown in the case of Wildenhus,' decided in 1886, in which the Belgian consul asked for a writ of habeas corpus on behalf of Wildenhus, who had committed murder on board a Belgian steamer in the port of Jersey City. The court held that the crime was of such a nature as by its very commission to "disturb tranquillity and public order on shore or in the port," so that it must be regarded as falling within the exceptional cases provided for in the treaty of 1880, in which the local authority might interfere.2 A novel ground for interference by the local government in the internal discipline of foreign ships in port was presented in 1920 by the Eighteenth Amendment of the United States Constitution, with its supplementary enforcement legislation, known as the Volstead Act. The amendment prohibited the manufacture, sale, transportation, importation, or exportation of intoxicating liquors within, into, or from the United States and all territory subject to its jurisdiction. The enforcement act contained more specific provisions to the same effect and prescribed that the act should be "liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." Following the passage of the law a number of steamship companies sued for an injunction to prevent the application of the law to supplies of liquor carried by their ships for the consumption of passengers and crew. In the case of Cunard Steamship Company v. Mellon the Supreme Court of the United States held, first, that the amendment "could be made to cover both domestic and foreign merchant ships when within the territorial waters of the United States"; secondly, that the amendment did intend such an effect. The jurisdiction of a nation within its own territory, said the court, is necessarily 6 1 Mali v. Keeper of the Common Jail, 120 U. S. 1 (1886). Evans, Cases, 89; Stowell and Munro, Cases, I, 253. * A constructive effort to secure greater uniformity in the practice of states in the matter of jurisdiction over merchant vessels in foreign ports was made by the Institute of International Law at its meeting in 1898, when a series of 66 Regulations concerning the legal status of ships and their crews in foreign ports' was adopted. Resolutions, 143. 3 The act was approved October 28, 1919, and bears the title of the National Prohibition Act. The amendment provides: "After one year from the ratification of this Article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited." 262 U. S., 100 (1923). Am. Journal, XVII (1923), 563. "By the word "could" the writer assumes that the court meant that such action would not be in contravention of international law, since the amendment must in any case be the final word in respect to the duties of public officers. XII exclusive and absolute, and any exception to such jurisdiction must CHAP. arise from the consent of the nation itself.1 No such exception was to be found in the terms of the amendment, and none could be "reasonably regarded as implied." The sole exception recognized by the law was that of "liquor in transit through the Panama Canal or on the Panama railroad." 3 against vessels Following this decision of the court the revenue officers of the United States were instructed to enforce the prohibition law to the extent of searching foreign vessels in port and in certain instances breaking the customs seals with which sea stores of intoxicating liquor had been guarded to insure that there would be no consumption of such liquors until the vessel should again be outside the three-mile limit. The breaking of the seals of the steamship Baltic in June, 1923, while calling forth protest from individual members of the British Parliament, was acquiesced in by the British Government as offering "no grounds for protest." Merchant vessels in foreign ports are not exempt from civil suit Civil suits Án rem brought by a citizen of the foreign state, nor are the officers foreign or crew of the vessel exempt from civil suit in personam or from in port criminal prosecution by the foreign government for acts in contravention of the laws of the state. But the jurisdiction of the foreign state does not, according to one precedent, extend so far as to interfere with personal and property rights on board the vessel as regulated by the law of the flag state. In the case of the Creole, submitted to arbitration by the United States and Great Britain in 1853, it was held by the arbitrator that the authorities of Nassau, in liberating a number of slaves who had revolted. against the officers of the ship and had put in at the port of Nassau, had acted "in violation of the established law of nations," and that the claimants were "justly entitled to compensation for their losses." The authority of the foreign consul to take cognizance of cases 1 The court cited at length the case of the Schooner Exchange v. McFaddon. See below, p. 201. In a dissenting opinion Justice Sutherland urged that while there was no question as to the power of Congress to do what the court held had been done, due regard for the principles of international comity, which exist between friendly nations, in my opinion, forbids the construction of the 18th Amendment and of the act which the present decision advances.'' For editorial comment upon the decision, see Am. Journal, XVII (1923). 'See statement of Prime Minister Baldwin in Parliament, June 25, 1923. For the proposed exemption of British vessels from such seizures on condition of the British Government's permitting the seizure within a twelve-mile limit of "rum-runners" flying the British flag, see below, pp. 255-256. Moore, International Arbitrations, IV, 4375; Digest, II, 358. CHAP. XII Concurrent jurisdiction of several states 2 arising between the captain and crew of the vessel is wholly dependent upon treaty provisions, so that in the absence of such provisions the Supreme Court of Hong Kong, in the case of Ellis v. Mitchell, held in 1874 that the American consul should not intervene to settle a dispute as to wages between a seaman and the master of the ship. The same principle was affirmed in the case Dainese v. Hale, in which the Supreme Court of the United States laid down the general rule that "it may now be considered as generally true, that, for any judicial powers which may be vested in the consuls accredited to any nation, we must look to the express provisions of the treaties entered into with that nation, and to the laws of the States which the consuls represent." It will be observed that, in consequence of the territorial and personal grounds upon which jurisdiction is assumed over the conduct of individual persons, the same act committed on board a vessel may be at once subject to the jurisdiction of a number of states: to the state whose flag the vessel flies, to the state within whose territorial waters the vessel happens to be, and to the state to which the individual owes allegiance. The jurisdiction of any one of these states can, of course, only be exercised singly, with due respect to the prior rights of the state within whose territory the individual happens to be at the time. In the case of Regina v. Anderson an American citizen was convicted by a criminal court of Great Britain for murder committed on board a British vessel in French waters. The court held that "although the prisoner was subject to the American jurisprudence as an American citizen, and to the law of France as having committed an offense within the territory of France, yet he must also be considered as subject to the jurisdiction of British law, which extends to the protection of British vessels, though in ports belonging to another country." A similar decision was rendered in United States v. Bennett, in 1877, a case in which the crime was committed on board an American vessel in French waters. 3 But while a state may exercise, or forego exercising, jurisdiction over offenses committed on board a merchant vessel in its territorial waters, it is not at liberty to try persons on board such foreign vessels for offenses committed on the high seas. Hence the British Government disavowed the action of the local authori 1 U. S. For. Rel., 1875, p. 600. 91 U. S., 13 (1875). 11 Cox C. C., 198 (1868). Scott, Cases, 351; Evans, 172. 3 Hughes, 466 (1877). XII ties at Calcutta in trying one Anderson for a crime committed CHAP. upon an American merchant vessel on the high seas. In an earlier case, occurring in 1856, the United States Department of State protested against the action of the local French authorities at Marseilles in retaining possession of persons who had committed mutiny on an American vessel, the Atalanta, on the high seas and who had been imprisoned by the local authorities at the request of tht consul.2 A unique illustration of the passage of a merchant vessel from the law of one state into that of another is furnished by the case of Regina v. Lesley, in which it was held that the master of a British vessel might, upon his arrival in Great Britain, be prosecuted for false imprisonment for the act of transporting banished Chileans, although the act of the defendant in contracting with the Chilean Government to transport them was justifiable in its inception, having been done within Chilean territorial waters.* 3 tion over collision high seas In two matters of slight intrinsic importance international law Jurisdic has worked out a system of concurrent jurisdiction which is of cases of considerable historical interest, and which presents an instructive on the analogy for the constructive development of international judicial institutions. In cases of collision on the high seas the courts of a number of the leading states undertake to assume jurisdiction in suits in rem brought by the injured party against the alleged guilty vessel of whatever nationality. The same custom holds where proceedings are instituted for salvage for the rescue of shipwrecked vessels. When the defendant vessel is sued in the courts of the state whose flag it flies, no question of jurisdiction can be raised. Practice is not uniform, however, in cases in which a vessel flies a foreign flag, or in which the parties are both citizens of the same foreign state. In the case of the Scotia, decided in 1872, the courts of the United States assumed jurisdiction in a suit brought by an American sailing-vessel against a British steamer for damages resulting from the loss of the vessel in a collision on the high seas. In the case of the Belgenland, decided in 1885, jurisdiction was exercised in a similar suit for damages brought by the captain of a Norwegian bark against a British 1 1 Wharton, Digest, I, 123. 'Scott, Cases, 354, n. 38, citing Snow. ' Bell's Crown Cases, 220 (1860). Scott, Cases, 349. The whole subject of jurisdiction over merchant vessels appears to be ready for constructive codification by means of a general convention of statutory force. 14 Wallace, 170 (1871). Evans, Cases, 5. 114 U. S., 355. Evans, Cases, 81. CHAP. XII Jurisdiction in suits for salvage steamer. In presenting its opinion the court cited an earlier British case, the Johann Friedrich,1 decided in 1839, in which the High Court of Admiralty entertained jurisdiction in a suit brought by the owner of a Danish ship against a Bremen ship. The basis upon which jurisdiction was assumed in these and other cases was the necessity of doing present justice to the injured party, who, if unable to sue in the nearest port, might have to go to the ends of the earth to seek his remedy.2 4 3 The jurisdiction exercised over foreign vessels in cases of salvage is based upon the same principle, that the question involved is one communis juris. In the case of the Two Friends the British Court of Admiralty, in 1799, entertained jurisdiction in a suit for salvage brought against an American ship which had been captured by the French and afterward rescued by the crew, who, however, were British subjects by birth. In explaining the basis of the jurisdiction taken, the court said that "salvage is a question of jus gentium," and it could "see no reason why one country should be afraid to trust to the equity of the courts of another on such a question of such a nature, so to be determined." In a similar suit for salvage brought in a port of the United States by a British ship against a French ship, the Supreme Court of the United States held that "where such controversies are communis juris, i.e., where they arise under the common law of nations, special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged." On the other hand, in the case of the Reliance, decided in 1848, the federal district court, while reiterating that salvage was "essentially a question of the jus gentium," held that the doctrine that jurisdiction may be assumed in cases involving foreigners was not "peremptory," and it refused to hear the case before it on the ground that the suit was brought by British libellants against goods destined to a British port under circumstances which could best be passed upon in a British port. It should be noted that the assumption of jurisdiction in cases of collision and of salvage is to be distinguished from the refusal of 11 W. Rob., 35. 2 While the subject falls more strictly under municipal law, the element of international comity in the mutual acceptance by national courts of jurisdiction in such cases brings the subject within the outer fringes of international law. 1 C. Rob., 271. Mason v. Le Blaireau, 2 Cranch, 240 (1804). 1 Abbott's Adm. Rep., 317. |