Claim of Vessels to a certain Flag. § 261. The Law of Nations does not include any sail under rules regarding the claim of vessels to sail under a certain maritime flag, but imposes the duty upon every State having a maritime flag to stipulate by its own Municipal Laws the conditions to be fulfilled by those vessels which wish to sail under its flag. In the interest of order on the Open Sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the Open Sea is freedom for such vessels only as sail under the flag of a State. But a State is absolutely independent in framing the rules concerning the claim of vessels to its flag. It can in especial authorise such vessels to sail under its flag as are the property of foreign subjects; but such foreign vessels sailing under its flag fall thereby under its jurisdiction. The different States have made different rules concerning the sailing of vessels under their flags. Some, as Great Britain 2 and Germany, allow only such vessels to sail under their flags as are the exclusive property of their citizens or of corporations established on their territory. Others, as Argentina, admit vessels which are the property of foreigners. Others again, as France, admit vessels which are in part the property of French citizens. But no State can allow such vessel to sail under its flag as already sails under the flag of another State. Just as a vessel not sailing under the flag of a State, so a vessel sailing under the flags of two different States does not enjoy any protection whatever. Nor is protection enjoyed by such vessel as sails under the flag of a State which, like Switzerland, has no 1 See Calvo, I. §§ 393-423, where the respective Municipal Laws of most countries are quoted. 2 See section I of the Merchant Shipping Act, 1894 (27 & 28 Vict. c. 60). maritime flag. Vessels belonging to persons who are subjects of States without a maritime flag must obtain authority to sail under some other State's flag, if they wish to enjoy protection on the Open Sea. And any vessel, although the property of foreigners, which sails without authority under the flag of a State, may be captured by the men-of-war of such State, prosecuted, punished, and confiscated. § 262. All States with a maritime flag are by the Ship Law of Nations obliged to make private vessels sail- Papers. ing under their flags carry on board so-called ship papers, which serve the purpose of identification on the Open Sea. But neither the number nor the kind of such papers is prescribed by International Law, and the Municipal Laws of the different States differ much on this subject. But, on the other hand, they agree as to the following papers : (1) An official voucher authorising the vessel to sail under its flag. This voucher consists of a Certificate of Registry, in case the flag State possesses, like Great Britain and Germany for instance, a register of its mercantile marine; in other cases the voucher consists of a "Passport," "Sea-letter," "Sea-brief," or of some other document serving the purpose of showing the vessel's nationality. (2) The Muster Roll. This is a list of all the members of the crew, their nationality, and the like. (3) The Log Book. This is a full record of the voyage, with all nautical details. (4) The Manifest of Cargo. This is a list of the cargo of a vessel, with details concerning the number and the mark of each package, the names of the shippers and the consignees, and the like. 1 See Holland, Manual of Naval Prize Law, 178-194, where the papers required by the different Names of Terri torial Sea. (5) The Bills of Lading. These are duplicates of the documents which the master of the vessel hands over to the shipper of the goods at shipment. (6) The Charter Party, if the vessel is chartered. This is the contract between the owner of the ship, who lets it wholly or in part, and the charterer, the person who hires it. § 263. Every State must register the names of all private vessels sailing under its flag, and it must make them bear their names visibly, so that every vessel may be identified from a distance. No vessel must be allowed to change her name without permission and fresh registration.1 § 264. It is a customary rule of the Law of Quality of Nations that men-of-war and other public vessels of Vessels on any State are, whilst on the Open Sea as well as in foreign territorial waters, in every point considered as though they were floating parts of their home States.2 Private vessels are only considered as though they were floating portions of the flag State in so far as they remain whilst on the Open Sea in principle under the exclusive jurisdiction of the flag State. Thus the birth of a child, a will or business contract made, a crime committed on board ship, and the like, are considered as happening on the territory and therefore under the territorial supremacy of the flag 3 State.. But although they appear in this respect as though they were, private vessels are in fact not floating portions of the flag State. For in time of war belligerent men-of-war can visit, search, and capture neutral private vessels on abroad remain under the personal supremacy of their home State, nothing can prevent a State from legislating as regards such of its citizens as sail on the Open Sea on board a foreign vessel. 1 As regards Great Britain, see sect. 47 of the Merchant Shipping Act, 1894. 2 See above, § 172, and below, $$ 447-451. 9 Since, however, individuals the Open Sea for breach of blockade, contraband, and the like, and in time of peace men-of-war of all nations have certain powers1 over merchantmen of all nations. Traffic on Sea. § 265. No rules of the Law of Nations exist for Safety of the purpose of preventing collisions, saving lives the Open after collisions, and the like, but every State possessing a maritime flag has legislated for the conduct on the Open Sea of vessels sailing under its flag concerning signalling, piloting, courses, collisions, and the like. Although every State can legislate on these matters independently of other States, more and more corresponding rules have been put into force by all the States during the second half of the nineteenth century, following the lead given by Great Britain through section 25 of the Merchant Shipping Act Amendment Act of 1862, the "Regulations for preventing Collisions at Sea" which accompany this Act, and, further, Sections 16 to 20 of the Merchant Shipping Act, 1873.2 And the "Commercial Code of Signals for the Use of all Nations," published by Great Britain in 1857, has been adopted by all maritime States. In 1889 the so-called Maritime Conference took place at Washington, at which eighteen maritime States were represented and which recommended a body of rules for preventing collisions at sea to be adopted by the single States, and a revision of the Code of Signals. These regulations were revised in 1890 by a British Committee appointed by the Board of Trade, and, 1 See below, § 266. The question of the territoriality of vessels is ably discussed by Hall, §§ 76 79. 2 See 25 & 26 Vict. c. 63; 36 & 37 Vict. c. 83. The matter is now dealt with by Sections4 18-421 of the Merchant Shipping Act, 1894 3 See Martens, N.R.G., 2nd ser. 4 See Martens, N.R.G., 2nd ser. XXII. p. 113. after some direct negotiations between the Governments, most maritime States have made corresponding regulations by their Municipal Laws.1 And a new and revised edition of "The International Code of Signals" was published by the British Board of Trade, in conformity with arrangements with other maritime Powers, in 1900, and is now in general use.2 § 266. Although the freedom of the Open Sea and the fact that vessels on the Open Sea remain Merchant under the jurisdiction of the flag State exclude as a rule the exercise of any State's authority over foreign vessels, there are certain exceptions in the interest of all maritime nations. These exceptions are the following: Powers of Men-of war over men of all Nations. (1) Blockade and Contraband. In time of war belligerents can blockade not only enemy ports and territorial coast waters, but also parts of the Open Sea adjoining those ports and waters, and neutral merchantmen attempting to break such a blockade can be confiscated. And, further, in time of war belligerent men-of-war can visit, search, and eventually seize neutral merchantmen for contraband, and the like. (2) Verification of Flag. It is a universally recognised customary rule of International Law that men-of-war of all nations have, to maintain the safety of the Open Sea against piracy, the power to require suspicious private vessels on the Open Sea to show their flag. But such vessels must be 1 Latest British Regulations, 1896. 2 The matter of collision at sea is exhaustively treated by Prien, Der Zusammenstoss von Schiffen nach den Gesetzen des Erdballs (2nd ed. 1899). or 3 So-called "Droit d'enquête" This power of men-of-war has given occasion to much dispute and discussion, but in fact nobody denies that in case of grave suspicion this power does exist. (See Twiss, I. § 193; Hall, § 81, p. 276; Fiore, II. Nos. 732-736; Perels, § 17; Taylor, § 266; Bonfils, No. 519.) |