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THE LACK OF UNIFORMITY IN THE LAW AND PRACTICE OF STATES WITH REGARD TO MERCHANT VESSELS
THERE is at present considerable discussion regarding questions with respect to "the freedom of the seas." These questions, so often vaguely referred to, should presumably be understood to relate to the exercise of belligerent rights on the sea and to embrace such matters as a possible codification of international law touching this subject, proper compliance with rules heretofore generally accepted if not always strictly observed, the desirability of amendments to such rules, and the formulation of principles to meet new problems that have grown out of the recent conflict. In the light of events in connection with the war the present situation with regard to the disposition of such questions through international agreement unhappily appears more difficult than that which confronted the delegates who assembled in conference at London in 1908 on the invitation of the British Government to reach an understanding among the nations represented relative to the rules of international law concerning the laws of naval warfare, and formulated the so-called London Declaration signed February 26, 1909.
On the other hand, when normal commercial relations are restored with the advent of peace, attention will probably be drawn more strongly than heretofore to certain conditions which are obviously detrimental to the promotion of safety of travel at sea and detrimental generally to the harmonious international relations necessary to the development of commerce, such conditions being consequent upon an unfortunate lack of uniformity among states with regard to certain branches of maritime law governing the responsibility of shipowners, laws pertaining to safety of navigation, and laws relating to the general question of jurisdiction over merchant vessels in foreign ports.
It is the purpose of this article briefly to call attention to certain matters touching this subject of the want of harmony in the municipal laws of maritime nations, namely: (1) efforts made in recent years
largely on the initiative of the British Government looking to the remedy of existing difficulties through international agreements; (2) the law and practice of the United States bearing on some phases of the general subject under consideration; and (3) certain important questions lately raised in American and British courts as to jurisdiction over vessels operated under governmental control.
On the invitation of the Government of Belgium an international conference on maritime law was held at Brussels in 1905, for the purpose of promoting uniformity in relation to certain questions of maritime law. Representatives of Belgium, The Kongo, Spain, France, Italy, Japan, Norway, The Netherlands, Roumania, Russia, Sweden, and the United States signed a protocol providing for the submission to their respective governments of projets of conventions on collision and salvage respectively. An adjourned meeting of this conference met on October 16 of the same year at Brussels, and the delegates present signed a protocol not materially different from that drafted at the previous meeting. This latter protocol likewise provided for the submission to the governments represented of two drafts of conventions relating to collision and salvage. These proposed conventions had their origin in drafts of conventions approved by the International Maritime Committee at a conference held in Hamburg in 1902. A third session of the conference met at Brussels September 28, 1909. It was attended by delegates from the United States, Germany, Argentine Republic, Austria-Hungary, Belgium, Brazil, Chile, Cuba, Denmark, Spain, France, Great Britain, Greece, Italy, Japan, Mexico, Nicaragua, Norway, Netherlands, Portugal, Roumania, Russia and Sweden. conference adjourned on October 8 and reconvened September 12, 1910. Two conventions relating to collisions and salvage were approved by the conference and referred to the several governments. The conference also considered drafts of two conventions relating respectively to the limitation of shipowners' liability and maritime liens, but no final action was taken with regard to such proposed conventions. The convention with regard to salvage has been ratified by
the Government of the United States.1 The convention with regard to collisions has not been ratified by this Government and has not come before the Senate for consideration.
At a conference held at London on the invitation of the Government of Great Britain in 1914 representatives of Germany, AustriaHungary, Belgium, Denmark, Spain, United States, France, Great Britain, Italy, Norway, Netherlands, Russia and Sweden signed the International Convention on the Safety of Life at Sea. This agreement contains comprehensive provisions relating to precautions against dangers to navigation, the construction of vessels, and appliances for life saving and fire protection. The outbreak of the war rendered nugatory, for the time being at least, the work of this conference.
Ratifications of but few countries, among which the United States. is not included, have been deposited with the British Government. The Senate of the United States, in a Resolution dated December 16, 1914, gave consent to ratification of the convention with a proviso in which it is declared in part that "the United States reserves the right to impose upon all vessels in the waters of the United States such higher standards of safety and such provisions for the health, protection and comfort of passengers, seamen and immigrants as the United States shall exact for vessels of the United States." If other governments should take the view that the so-called reservation contained in the resolution of the Senate is equivalent to an amendment of the treaty or a reservation of a right of the Government of the United States to disregard the provisions of the treaty at will, it would seem that such nations might object to the acceptance of such a ratification. And this Government would appear to be in a position to deposit its ratification only if it may properly be considered that the reservation made by the Senate in connection with its consent to the ratification of the convention is in effect a surplusage which does not affect the treaty directly and at most only violates the treaty in spirit,
1 International Convention for the Unification of Certain Rules of Law with Respect to Assistance and Salvage at Sea, ratification of which was deposited with the Belgian Government January 25, 1913. See Act to carry this treaty into effect (37 Stat. L. 242).
or the convention should be sent back to the Senate and an unconditional consent should be given by that body to ratification of the
In the interest of safety of life at sea the several signatory powers presented in the treaty, through their plenipotentiaries in conference, cera standards with respect to the equipment and operation of ves8016 The Government of the United States having agreed to these standards, it seems odd for this Government to make a declaration to the effect that it will adhere to them but that it reserves the right to change them and to impose on all vessels in its waters, foreign as well as American vessels, such higher standards of safety as it may deem appropriate.
However, it can perhaps be plausibly argued that, whatever action might be taken in the future in accordance with the possible purposes indicated in the Senate's reservation with respect to the Convention for the Safety of Life at Sea, such action would not necessarily be violative of the treaty, though it might be objectionable to foreign nations whose vessels it would affect.
A fair construction of the treaty seems to be that it imposes upon each of the contracting nations obligations to exact of its own vessels the requirements of the convention with respect to their equipment and operation, but not obligations to see to it that these requirements are met by the vessels of other contracting nations.
It would, therefore, seem that, although foreign nations might question the right of this Government to substitute in its judgment standards as to the equipment of American vessels in place of those specified by the treaty, if it should impose on its own vessels not only the standards required by the treaty but also certain higher standards, other nations would not be in a position to complain of a violation of the treaty on the part of this Government.
Should this Government attempt to impose on vessels of other nations standards other than those prescribed by the treaty, such action would doubtless be regarded by those nations as objectionable, but a complaint of treaty violation could probably be met with the reply that the only obligations which the treaty imposes on this Government are those requiring it to see to it that its vessels are operated
and equipped in accordance with the rules prescribed by the treaty, and that if this Government sees fit to prescribe certain rules for vessels of other countries, its action in such a matter is one with which the treaty is not concerned, so long as the regulations imposed on the foreign vessels are not such as to require these vessels to disregard the standards prescribed by the convention.
Unfortunately it seems possible that the work of the conference which framed this convention may become a nullity in consequence of the intervention of the war. But it may be that an understanding can be reached to prevent such a result.
It appears that the Government of Great Britain had under consideration shortly prior to the outbreak of the war the question of the advisability of endeavoring to effect an arrangement with other nations with regard to the question of jurisdiction over merchant vessels in foreign ports. Possibly this interesting subject may be taken up when the condition of international affairs will permit such action.
The Supreme Court of the United States and the lower federal courts have in numerous cases set forth the rules defining the law and practice of the United States relative to the exercise of criminal and civil jurisdiction by this government over foreign merchant vessels and persons on board of them in territorial waters of this country, and over American vessels and persons thereon in foreign waters. Reference to a few cases will serve to call attention to the general principles enunciated.
With regard to the exercise of jurisdiction in criminal matters by the courts of this country over foreign ships in American waters and over persons on board such vessels, the leading case may doubtless be considered to be that known as Wildenhus's Case, in which the Supreme Court of the United States sustained the jurisdiction of the courts of New Jersey where the crime of felonious homicide had been committed by a Belgian subject on the person of another Belgian subject on board of a Belgian vessel lying in the port of Jersey City, 2 120 U. S. 1.