the courts to interfere in disputes between the masters and crews CHAP. of foreign vessels as to wages and service contracts.1 XII jurisdiction The jurisdiction assumed by national courts in these cases is Basis of partly due to the fact that by long custom there has grown up a body of maritime common law to be applied with even justice whatever the nationality of the parties to the case. In the presence of this common law of the sea, states have been willing to recognize the exercise of a reciprocal jurisdiction in cases not otherwise properly before the court. It is on this point that a question, otherwise one of private law only, becomes one of public international law. The content of this common law traces its origin back to the early Rhodian law, to the Amalfitan table, to the ordinances of the Hanseatic League, and to other early codes of international private law. "Whatever may have been its origin," said the court in the case of the Scotia,2 "whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world." Efforts have been made from time to time to secure the adoption of a general international convention of statutory force. In 1888 the Institute of International Law formulated a series of eight rules. In 1889 a maritime conference held at Washington recommended to the states represented the adoption by each state individually of a common body of rules for preventing collisions at sea. A later International Maritime Conference, which met at Brussels in 1910, indorsed a draft convention concerning collisions for separate national adoption. At the same time a separate draft convention concerning salvage was offered in like manner for individual enactment.5 on foreign Foreign merchant ships, not being exempt except by comity Asylum from the jurisdiction of the state in whose ports they drop anchor, merchant may not be made an asylum for fugitive criminals or political refugees. It has been questioned, however, whether a foreign See above, p. 196. 14 Wallace, 170 (1871). Evans, Cases, 5. Resolutions, 83. For the text of the draft, see Am. Journal, IV (1910), Supp. 115. For comment, ibid., IV, 412. By contrast with the international conventions adopted upon related subjects of common interest, the method of individual enactment of draft codes may be compared with similar action by the States of the United States, e.g., in the adoption of a uniform Negotiable Instruments Act. ships CHAP. XII d. Jurisdiction over public vessels merchant ship is so far under the jurisdiction of the state as to give the local authorities the right to enter upon the vessel and arrest a passenger who, as a political refugee, has taken passage upon the vessel in the port of a third state. Calvo relates the case of one Sotelo, a political refugee who took passage in 1840 on board a French vessel at one Spanish port and was arrested upon the arrival of the vessel at a second Spanish port. Diplomatic correspondence between the two countries established the complete right of Spain to execute its laws within its territorial jurisdiction without disrespect to the foreign flag.1 In the case of Gomez (Gámez), a political refugee from Nicaragua who took passage on board a United States steamship in the harbor of Guatemala in 1885, and whose arrest was sought by the local authorities when the vessel stopped en route at a port of Nicaragua, the Department of State refused to support the action of the captain in declining to deliver the passenger. "It is clear," said Secretary Bayard, "that Mr. Gomez voluntarily entered the jurisdiction of a country whose laws he had violated. Under the circumstances it was plainly the duty of the captain of the Honduras to deliver him up to the local authorities upon their request." 2 In contrast to the ruling in the Gomez case, Secretary Blaine contested in 1890 the right of the Government of Guatemala to demand the surrender of Barrundia, a political refugee who had taken passage on board a Pacific Mail steamer at a Mexican port, and who was temporarily within the jurisdiction of Guatemala when the vessel called at a port en route. In a later case involving a political refugee from Honduras named Bonilla, Secretary Gresham, while admitting the right of the local authorities to demand the surrender of a passenger, instructed the American minister to protest against the act of the commander of the port in firing upon the vessel because the captain refused to surrender the refugee.* In practice if not in legal theory, the jurisdiction of a state over its public vessels, whether on the high seas or in foreign ports, stands upon a different footing from the jurisdiction of the state over privately owned vessels flying its flag. Public vessels, whether men-of-war or naval auxiliaries, are immediately identified with the personality of the state. The fiction of "exterritoriality" Droit International, 4th ed., I, 569; quoted by Snow, Cases, 147. See Moore, Digest, II, § 307, where the defense offered by the American XII is borne out in the actual position they enjoy, as well as in legal CHAP. theory. Both on the high seas and in foreign ports they are "floating portions" of the territory of their state. They may not, as neutrals, be visited, searched, or detained by belligerent warships in the enforcement of the law of contraband and blockade. When in foreign territorial waters they are completely exempt from local jurisdiction, in respect not only to the internal discipline of the ship but even to crimes committed on board ship by persons not members of the crew, or committed in the port itself by one who has taken refuge on board. In the latter case the commander may agree to surrender the offenders; but should he refuse to do so the foreign state must secure redress, if any, through diplomatic channels. By reason of their territorial character, public vessels in foreign ports have frequently been made an asylum for political refugees, particularly in times of revolutionary disturbances in Central and South American countries. States have the right to refuse permission to foreign war-ships to enter their ports; but having admitted them they must, even in cases of misconduct on their part, resort to diplomatic, rather than local judicial, procedure against them. of public from civil The question whether public ships in foreign ports are subject Exemption to civil suit in rem has been passed upon by British and American vessels courts in several important cases. In the case of the French suit man-of-war Exchange, a vessel owned by an American citizen had been seized by Napoleon in 1810 and commissioned as a public vessel of France. In a suit brought by the original owners against the vessel upon its arrival in the port of Philadelphia, the Supreme Court, after a lengthy review of the law which has become classic, held that the public character of the vessel exempted it from the jurisdiction of the American courts.2 The decision is paralleled by that of the British High Court of Admiralty in the case of the Constitution, in which the court refused to issue a warrant, served by a British steam-tug, for payment of salvage for the rescue of the ship when stranded on the English coast. Greater difficulty was experienced by the British courts in reaching the conclusion that public vessels, other than war-ships, should be exempt from 1 Schooner Exchange v. McFaddon, 7 Cranch, 116 (1812). Scott, Cases, 300; Evans, 232. 2 The case, as authority for the complete jurisdiction of a state over foreign vessels in port, except in so far as voluntary relaxations have been consented to in practice, is cited at length in Cunard Steamship Co. v. Mellon, above, p. 194. 'L. R. 4 P. D., 39 (1879). Scott, Cases, 310, n. 22. CHAP. XII Difficulties attending such exemption local jurisdiction. In the case of the Parlement Belge1 the Court of Appeals reversed the judgment of the High Court of Admiralty and held that a publicly owned vessel of the state of Belgium, used as a mail-packet as well as for general commercial purposes, was exempt from suit in rem for damages arising out of a collision. The court held that even though an action in rem were an action against the property only, suit could not be brought; but it went on to show that in an action in rem the owner of the property is indirectly impleaded and that "to implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence." The case of the Parlement Belge is of particular importance owing to the modern practice of states in taking over privately owned vessels into the public service as naval auxiliaries, and chiefly owing to the more recent practice of the United States and other states in owning and operating a fleet of merchant vessels engaged in ordinary trade. In the case of the Porto Alexandre,2 involving the salvaging of a trading vessel owned by the state of Portugal, the British court called attention to the fact that, now that "the fashion of nationalization is in the air" and states are trading with public ships, "if these national ships wander about without liabilities, many trading affairs will become difficult.” Nevertheless, the court felt that, owing to the precedent of the Parlement Belge, the remedy was not with the courts. The American courts have on several occasions held foreign public ships immune from suit in rem, even though used for mere commercial purposes. On the other hand, in a recent decision of a federal district court, it was held that the steamship Pesaro, owned by the king of Italy but manned by civilian officers and crew under the direction of a government department, and engaged in ordinary commercial trade, was not immune from process in rem brought against the ship to enforce a claim for damages to a cargo of olive-oil carried by it. As in the case of jurisdiction over private vessels in foreign ports, the practice of the nations regarding public vessels of the above character is so lacking in uniformity that a constructive rule of law is urgently needed.* 3 1 1L. R. 5 P. D., 197 (1880). Evans, Cases, 242. 236 Times L. R., 66 (1919). Evans, Cases, 253; Am. Journal, XIV (1920), 273 277 Fed. Rep., 473 (1921). See also the Attualita, 238 Fed. Rep., 909. Contra, the Roseric, 254 Fed. Rep., 154. See Report of Subcommittee No. 2 of the Committee for the Advancement of International Law, Proceedings, Am. Society of Int. Law, 1922, p. 62. XII on foreign The exemption from the territorial jurisdiction of a state CHAP. accorded to foreign war-ships lying in its harbors has, as in the case of legations, led to the granting of asylum upon them to Asylum fugitives from justice. This practice, however, is not so direct warships a limitation upon the sovereignty of the state; and while asylum is no longer granted to ordinary criminals, it is still granted quite frequently to political refugees. In 1820, in an opinion in the case of one John Brown,1 a British subject who had escaped from prison and taken refuge upon a British war-ship in the harbor of Lima, Sir William Scott asserted that he knew of "no such right of protection belonging to the British flag," and thought such a pretension unfounded in point of principle and injurious to the rights of other countries. In 1849, however, the British Government made a distinction between fugitives from the sentence of a court of law and political fugitives, claiming a right of asylum for the latter. This distinction obtained the sanction of general practice. In view, however, of the serious objection attending it, the United States has on its part discouraged the granting of asylum by its war-ships. In the Regulations of the United States Navy issued in 1913 it is laid down that "the right of asylum for political or other refugees has no foundation in international law." While it is recognized in the Regulations that usage sanctions the granting of asylum in countries subject to frequent revolutions, it is directed that even in such cases asylum should be granted only in extreme cases, as to refugees from mob violence. It should be noted that, in the above instances in which asylum is granted, there is no "right of asylum" on the part of the refugee. The right, if any exists, inheres in the state which authorizes its legations or public vessels to grant asylum, and the correlative duty in the case is that which devolves upon the local government to acquiesce in the derogation from its territorial jurisdiction. 4 The suppression of robbery on the high seas has never been Snow, Cases, 144. See opinion of Lord Palmerston, quoted by Snow, Cases, 146, n. 'At its meeting in 1898 the Institute of International Law gave its qualified approval to the distinction, by incorporating in the regulations adopted the provision (Art. 19) calling upon the commander of a ship "if he shall receive political refugees on board" to make certain that they were such, and to see to it that no advantage was taken of the asylum to further the political cause of the fugitive. Resolutions, pp. 144, 148. U. S. Navy Regulations and Naval Instructions, 1913, Art. R-1649. |