Page images

s'ingérer dans ces faits, à moins que son ship for a time, it seems that the articles secours ne soit réclamé: ces faits restent donc were abandoned, and he was living on shore sous la police et sous la jurisdiction de l'état and had been so for months at the time of auquel appartient le navire." Then the whole the commission of the offence. So that essence of the matter seems to be, whether dictum goes against you.] this man forms part of the crew of a British In The Queen v. Lewis (4), the prisoner ship.]

was a Frenchman by birth and a natural[BLACKBURN, J.-We must construe the ized citizen of the United States, and statute by the light of the international shipped on board an American ship at New law. British statutes are to be construed York. The deceased was a German by birth, to include aliens only as to those whom and shipped on board the same ship. On the British legislature has jurisdiction over, the high seas the prisoner inflicted blows unless there are strong words to the contrary. which caused the death of the deceased at Is there anything opposed to the interna- Liverpool, and the conviction was quashed tional law in either country legislating as on the ground that the prisoner was a to a crew of foreigners under the national foreigner, and that this country could not flag who are entitled to claim the protection legislate for foreigners in such a case. of the law of the country, and are there- (BLACKBURN, J.-It was rather on the fore subject to its enactments!

ground that the ship was a foreign ship. There are reported cases touching this LUSH, J.—Had this section (18 & 19 Vict. question. In The King v. Depardo (2) c. 91. 8. 21.) any further object than to the prisoner, a Spaniard, but serving in the prescribe the offence and mode of trial? If crew of an Indiaman, was indicted and not, then it would apply only to British convicted of the manslaughter of an English- subjects and known offences, and not man, another of her crew, in the Canton extend the ambit of the former provisions. River, China, where the river was about a Would it have been an offence before the third of a mile in width within the tideway 17 & 18 Vict. c. 104? I cannot think it and about eighty miles from the sea,

but would extend to the .case of a foreigner the prisoner was discharged after argu- who had committed an offence within three ment before the Judges. In The King v. months after leaving the ship and had then De Mattos (3) the prisoner was a Spaniard returned to this country. Byles, J.-At who had entered into articles as one of common law is not this ship a floating the crew of an English ship bound for the British island, and those on it entitled to Indian seas on a trading voyage of three the protection of this country ?] years and back to England. At Zanzibar, It is submitted not when it floats into a an island under an Arab king, the captain foreign jurisdiction, and that there is no conleft the crew and set up as a trader, and current jurisdiction in such a case. without the consent of the rest of the crew, (BLACKBURN, J. referred to The United engaged the Spaniard as interpreter. The States v. Holmes (5), where it was held ship left England in 1834, arrived at Zan- that to be within the act of the 30th of zibar in May, 1835, and then went two or April, 1790, as to an offence committed on three short voyages and returned and an- the high seas, it made no difference whether chored near Zanzibar in December, 1835. the offender were a citizen of the United The crew being on shore, the Spaniard States or not, if it be committed on board killed one of them. The Spaniard was of a foreign vessel by a citizen of the brought to England, and tried in London, United States or on board of a vessel of and the prisoner was acquitted on the the United States by a foreigner, for the ground that he was not a subject of Her offender is to be considered pro hac vice Majesty.

as belonging to the nation under whose (BLACKBURN, J.—But Vaughan, J. there flag he sailed; nor does it matter that the says that though the prisoner was on board

(4) 1 Dears. & B. 182; s.c. 26 Law J. Rep. (N.s.) (2) Russ. & R. 134 ; 8. c. 1 Taunt. 26, M.C. 104. (3) 7 Car. & P. 458.

(5) 5 Wheat. 412.

offence was committed not on board any diction and torts committed on such waters vessel, but on the high seas.]

are cognizable by the Admiralty] [BYLES, J. referred to 1 Kent's Com. 406, The King v. Allen (11) will be relied on 10th ed., in the note. In Thomas v. Lane (6), on the other side. In that case the prisoner in the case of libel for a maritime port, it was a sailor in an English ship, and was was admitted that the Admiralty had no found guilty of larceny when lying off jurisdiction over torts, except those that were Whampoa, in China, when the vessel was maritime or committed on the high seas or twenty or thirty miles from the sea. There on waters within the ebb and flow of the tide, was no evidence whether the tide flowed and that the Courts of common law denied where the ship lay, but the conviction was the jurisdiction if the waters are within the held good there, because the place was one body of the county. It was held, however, where great ships go. to be a clear point that the exception ap- Poland (Beasley with him), for the Crown. plied to tide waters in foreign countries, and - It is submitted that if this case depended that the Admiralty jurisdiction attached upon the construction to be put on the to torts on such waters, but the libel must Merchant Shipping Act, the prisoner Anderaver that the trespass was on a tide water son was temporarily a British subject at in a foreign port, and it cannot be taken by the time he committed the offence charged, intendment. It was expressly held in the because he was entitled to British protection. cases of The United States v. Ross (7) and Lord Hale (12), in commenting on the The United States v. Pirates (8), that a statute 21 Hen. 8. c. 11, whereby it was vessel in an open roadstead within a marine enacted that “if any person do rob, &c. league of the shore was upon the high sea any of the king's subjects within this under the 8th section of the act of the realm,” says, that “ although the statute 30th of April, 1790, cap. 9, so

as to

speaks of the king's subjects, it extends to give jurisdiction to the Courts of the United aliens robbed ; for though they are not the States. The high seas in that act mean king's natural-born subjects, they are the any waters on the sea-coast which are king's subjects when in England by local without the boundaries of low-water mark. allegiance." The King v. Depardo (2) does And yet, again, it was held in the case of not apply to this case, as the prisoner there The United States v. Robinson (9) that an was not only a foreigner, but he was also offence committed in a bay entirely land- an alien enemy, who, therefore, could not locked and inclosed by reefs was not com- owe allegiance, and that point was expressly mitted on the high seas.

The cases are so made. Moreover, no judgment was ever conflicting that it seems impossible to given in that case, though it would appear arrive at any definite conclusion on the that the prisoner was discharged. The Queen subject. It seems to be conceded that the v. Lewis (4) is also distinguishable in this, Admiralty has an established jurisdiction that the offence was there committed on board to award damages for torts or personal of a foreign vessel upon the high seas. In wrongs done on the high seas; and that The King v. De Mattos (3) the prisoner, waters within the ebb and flow of the tide, a Spaniard, had left the ship, and no longer and which lie within the body of a county, formed part of her crew, and therefore are not in England within the Admiralty was not an English subject at the time of jurisdiction-4 Inst. 134, 2 Brown, Civil the offence being committed ; and; further, and Adm. Law, 14, The Nicholaas Wilzen the offence was committed on land out of (10); but that in the United States all England. Vaughan, J. in that case says, tide-waters, though within the body of a that to claim the prisoner's allegiance you county, are within the Admiralty juris- must at least shew that he was under

British protection. (6) 2 Sumn. I.

In the present case the prisoner was (7) 1 Gall. 624.

in a British ship, and part of her crew; (8) 5 Wheaton, 184. (9) 4 Mason, 307.

(11) 1 R. & M. C.C. 494. (10) 3 Hagg. 369.

(12) 1 Hale P.C. 542.

therefore, the question arises whether, in Wheaton agrees with the rule as laid when a British vessel gets within three down by M. Ortolan (13). In the present miles of foreign land or into foreign case,


peace of the port was not disturbed, rivers, do the persons on board cease to be nor was the assistance of the local authority under British protection? And this depends invoked. Take the case of a barbarous upon whether such a place is within the country, as China, which disclaims jurisjurisdiction of the Admiralty, notwith- diction, and the ship up a river in China ; standing it be not high seas. So long as the if the tribunals of the country of the ship ship be on the high seas, there can be no are not to have jurisdiction, the offence doubt that she is within the Admiralty must go unpunished. The King v. Allen jurisdiction; then does that jurisdiction (11) shews that a place may be within the cease when she floats into foreign rivers ? jurisdiction of the Admiralty, though not In Wheaton's International Law (2nd edit., on the high seas ; and in The King v. by Lawrence), page 202, it is stated that Jemott (14) it was held it was piracy, over the law of France in respect to offences which the Admiralty had jurisdiction, to and torts committed on board foreign commit a robbery in a creek, harbour or merchant vessels in French ports establishes port, &c., in foreign countries. In The a two-fold distinction between, 1, acts of United States v. Wiltzberger(15), manslaughmere interior discipline of the vessel, or ter was committed by the defendant, the even crimes and offences committed by a master of an American ship, on a seaman person forming part of its officers and crew belonging to the ship in the river Tigris, against another person belonging to the in China, off Whampoa, about 100 yards same, where the peace of the port is not from the shore, in 4! fathoms water below thereby disturbed; 2, crimes and offences low-water mark, 35 miles above the mouth conimitted on board the vessel against of the river, where the tide ebbed and persons not forming part of its officers and flowed. The river at Whampoa was about crew, or by any other than a person belong- half a mile in breadth ; and it was held that ing to the same, or those committed by such a place was not “high seas” within the the officers and crew upon each other, if the meaning of the act of Congress; but the ground peace of the port is thereby disturbed. In of that decision was, that the act excluded respect to acts of the first class, the French all rivers and other waters but high seas, tribunals decline taking jurisdiction. The

and the decision turned on the meaning to French law declares that the rights of the be given to the particular expression “high power to which the vessel belongs should seas," as intended in that act. The Adbe respected, and that the local authority miralty jurisdiction, however, extends not should not interfere unless its aid is de- only to the high seas, but over all rivers manded. These acts, therefore, remain where, and as far as, the tide ebbs and under the police and jurisdiction of the Aows. 1 Kent's Com., 10th edit. 405, agrees state to which the vessel belongs. In respect with this. to those of the second class, the local juris- (BLACKBURN, J.-It must be not only diction is asserted by those tribunals. The where the tide ebbs and flows, but also grounds upon which the jurisdiction is where great ships go.] declined in one case and asserted in the In The United States v. Hamilton (16), other are stated in a decision of the Council on an indictment for larceny on the high of State pronounced in 1806, and this seas, where it appeared that the larceny decision arose from a conflict of jurisdiction was committed on board an American ship between the local authorities of France and while she lay in an inclosed dock in the the American Consuls in the French ports of Antwerp and Marseilles in two cases of (13) Les Règles Internationales et Diplomatie offences committed by one of an American de la Mer, tom. 1. cap. xiii. p. 270, 4th ed. 1864. crew upon another of the crew in American

(14) O.B. 28th Feb. 1812, U.S.; Arch. C. Pl. ships in those respective ports, as to which 595, 16th ed. the American Consuls claimed jurisdiction, (15) 5 Wheaton, 76. and their claim was allowed. This passage (16) 1 Mason, 152.

port of Havre, in France, into which dock havens and rivers below the first bridges. the water was admitted only at the will of The Americans give a liberal interpretation the owners, it was held that in no sense to the term 'high seas,' as they include their could such a place be taken to be the high seas. inland lakes-see the note, page 408. In Story, J., says, “The Admiralty has never The Propeller Genessee Chief v. Fitzhugh held that the waters of havens, where the and others (17), a collision on Lake Ontario, tide ebbs and flows, are properly the high about forty miles below Niagara, was held seas, unless those waters are without low- to be within the jurisdiction of the Court water mark.” The common law has at- as coming within the scope of Admiralty tempted a still more narrow construction jurisdiction. There the tide did not extend; of the terms.

but it was said that if it were public naviThen as to the statute. The provisions gable water, on which commerce was carried of the Merchant Shipping Act, alluded to, on between different states and nations, there are merely intended to provide a proper was nothing in the absence of tide to prevenue for the trial of indictments, and the vent its being within the Admiralty jurisjurisdiction is not intended to be enlarged. diction. In Waring v. Clarke (18) a collision The statute of Hen. 8. was a statute of pro- in the Mississippi, near the Bay of Goulah, cedure merely. In Kent's Commentaries, was held within the jurisdiction, but in reference is made to the judgment in the that case the tide flowed. This case is cominsurance case of De Lovis v. Boit, where it mented on in 2 Parson's Maritime Law, 511, is said that “it was maintained that in and the ground of it is urged to be that very early periods the Admiralty jurisdic- of necessity, and it is doubted whether it tion in civil cases extended to all maritime would be extended. ... If any such necessity causes and contracts, and in criminal cases or reason exists as to the punishment of to all torts and offences, as well in ports crime committed in a river of China or and havens within the ebb and flow of Africa it must be because no other tribunal the tide as upon the high seas; and that the to which our country would be willing to English Admiralty was formed upon the confine the case would be likely to take same common model, and was co-extensive cognizance of it.” It is important that the in point of jurisdiction with the maritime country whose flag is flying over the ship Courts of the other commercial powers of should have jurisdiction, whether there may Europe. It was shewn by an exposition of or may not be concurrent jurisdiction in the ancient cases that Lord Coke was mis- the tribunals of another country. taken in his attempt to confine the ancient [LUSH, J. referred to the Irish case menjurisdiction of the Admiralty to the high tioned in 1 Russ. on Crimes, 4th ed. p. 154, seas, and to exclude it from the narrow and The Queen v. Mannion (19).] tide waters and from ports and havens. Therefore it is unnecessary to construe the The Court agreed with the Admiralty civi- Merchant Shipping Act so extensively as lians that the statutes 13 Ric. 2, 15 Ric. 2, to bring a foreigner within the term “any and 2 Hen. 4. did not curtail this ancient person.” Upon the cases and upon principle, and original jurisdiction of the Admiralty, it is submitted that an English vessel does and that, consistently with those statutes, not lose its national character by floating the Admiralty might exercise jurisdiction within three miles of a foreign coast, or over torts and injuries upon the high seas into large rivers where great ships go. The and in ports within the ebb and flow of the prisoner here had entered into a contract tide, and in great streams below the first to serve and was serving as a seaman and bridges. ... On the sea-shore or coast, high one of the crew of a British ship, and was and low water-mark determine what was entitled to the protection of its flag. parcel of the sea and what was the line of division between the Admiralty and the BOVILL, C.J.— There is no doubt the place Courts of law, and it was held that it ought was within the territory of France, and that to be so considered, by parity of reasoning, where the tide ebbs and flows in ports and

(17) 12 Howard's Supp. 443. havens; and that the Admiralty jurisdiction

(18) 5 Howard, 441. extends to all tide waters in ports and

(19) 2 Cox, C.C. 158. NEW SKRIFS, 38.—MAG. Cas.


the prisoner was subject to the laws of all those who put themselves under the France, which the local authorities of that laws of Great Britain by joining the crew realm might have enforced, if so minded; of a British ship, and we might include he also was one of a crew on board of a foreigners in such a case. But the law of British merchant vessel, and under the pro- England is sufficient without having retection of British law, and, being under its course to that statute. Here the vessel was protection, was amenable to its provisions. a British vessel, the offence was committed It is true that he was an American citizen, by a person then being one of her crew, but then he had embarked of his own con- and I think it makes no difference whether sent on board a British ship as part of that person, so being one of her crew, be a her crew. From various observations found foreigner or not. If the vessel at the time in the writings on this subject, it would of the commission of the offence were on seem that, although the prisoner might be the high seas, then the offence would have within the jurisdiction of the United States been without doubt within the jurisdiction of of America, as an American, so, also, he the Admiralty Court of England, and the Cenmight be within French jurisdiction, as tral Criminal Court by statute would have the offence was committed in France, and been the place of trial: then if so, how is he would yet be subject to English law as the case distinguished by the circumstances part of the crew of a British vessel in respect of the ship being in the River Garonne on of the jurisdiction preserved over the ship her way up to Bordeaux, about forty-five though being in a port of a foreign country. miles up the river from the open sea, the From the passage cited from M. Ortolan river at that place being about half-a-mile (Règles de Mer, dc. ) as to merchant vessels, wide, and within the flux and reflux of the the French nation do not assert their police tide, and the ship, at the time of the offence laws over crews of these vessels unless they being committed, being about 300 yards are invoked or in case of disturbance of from the nearest shore. The spot therefore the peace of the port. M. Ortolan gives two was in a navigable river, below the bridges instances of cases of American vessels. The where the tide flowed and ebbed, and where one was in the port of Antwerp, and the great ships hovered. There is no practical other in the port of Marseilles. The local difference between such a place and the authorities within whose local jurisdiction high seas in the common acceptation of an offence was committed by one of the the term; but at all events the cases cited crew on another of the same

by Mr. Poland from the American authoriboard the American vessels claimed ex- ties shew that such a place is within the clusive cognizance of the matters, but the jurisdiction of the Admiralty, just as much Americans claimed exclusive jurisdiction as the high seas are. For these reasons, though being in a foreign

a foreign port, and I think the conviction is right. this conflict between the consular autho- CHANNELL, B.-I also think the convicrities led to the establishment of the rule tion is right. The statute 17 & 18 Vict. as laid down by M. Ortolan. The Ameri- c. 104. has been referred to on behalf of cans, by Act of Congress of the 3rd of the prisoner, but I agree in the view taken March, 1825, c. 67. s. 5, made regulations of this case by Mr. Poland, and think that for their subjects on board American vessels it is not necessary to pray in aid the 267th in foreign ports, and we do the same. When section of that statute. I do not decide our vessels go into foreign ports they must that the case is not within that section, but respect the law of the place, but on the in my view that point does not arise. If it other hand, they must respect our laws. had arisen, I should have said that this We make such regulations as may prevent Court must execute the power created by disturbance in foreign ports. America has that act of parliament; but in construing set us a strong example to shew we have the statute, I agree that we are at liberty the right to make regulations as to our own to ascertain what the international law on ships. If it were necessary to decide this such a point may be, and that our concase upon the Merchant Shipping Act, struction should be in harmony with that 17 & 18 Vict. c. 104, I should not hesitate law if the words are capable of bearing to say that we have power to legislate for such a construction. The ground, however,



« PreviousContinue »