world to complain because that ship is not a member of any such power. There are a number of instances of such interference in time of peace, which are permitted by the international factors of conduct. They are (A) policing the high seas, (B) piracy, (C) slave trade. Except in these cases the act of interference is usually adjusted between the states concerned.17 INTERFERENCE IN POLICING THE SEA. $297. Since navigation in the open sea may be engaged in only by the members of a state, and since ships of no state may be attacked by any state, it follows that the fact whether in any given case an attack upon a ship will be resented by an independent power depends on whether in fact the ship so attacked was a member of this state or not. Since ships carry certain documents showing their character,18 it is obviously a matter of common sense and practical convenience for the warships of any state to examine the documents, when occasion requires, and see if the ship in question has a title to navigate the sea. The validity of any seizure, therefore, of a ship on the high sea depends on a question of fact to be learned only by an examination of the ship in question. This is probably the most delicate question of fact arising in international relations. The very act of examination implies a suspicion which is naturally resented by the state of which the ship is a member. Independent states are very jealous of the flag,' the dignity and the jurisdiction of the state, and are particularly sensitive to any reflection upon state honor or integrity. A respectable member of a community would feel just as much outraged if a policeman should stop him on the street, accuse him of being a thief and refuse to release him until he could prove by neighbors his identity and good character. In practice in municipal life, with an absence of malice on the part of police officers, acts of this kind will rarely occur. In modern times piracy has practically disappeared. Furthermore, the ships of every state are registered and known. The registries are printed and accessible in foreign countries. The consequence is that ships meeting each other on the seas are generally able to recognize one another's identity merely on passing and by use of international code of signals. The case in practice, therefore, when it would be necessary to stop any 17 See $505, post, as to adjustment of $283, ante. state conflict. 18 As to identification of a ship, see 1 Abuse of flag, see 1 Oppenheim, Int. L., 2 ed. (1912) 336. $297 Interference Between Ships ship on the high sea on the suspicion of being there illegally, will be extremely rare, in fact it is believed no such case has occurred since the year 1850,2 except perhaps a few insignificant piratical expeditions in the East. A body of pirates may be so openly recognizable as such that the fact is apparent and an attack will follow. In such a case there is no cause to complain. The only difficulty is where a search is made by mistake on suspicion of piracy of a ship really belonging to another state. The remedy here is apology and indemnity to the private persons, if any, damaged by the act of stoppage. The principle seems to be that every state exercises the right of visit and search in time of peace at its peril and is liable for any mistake and cannot escape on any ground of error in judgment or discretion. The uniform practice is to make prompt apology where such mistakes have occurred. 21812, Aug. 31-A court martial was held in the Downs, on the Hon. Henry Blackwood, commander of His Majesty's ship "Warspite," upon a charge of having caused the death of a master of a merchant schooner in the Mediterranean, by ordering several guns to be fired into her. The merchant vessel had not obeyed the usual means taken to bring her to, but persisted in her course and made more sail. Captain Blackwood, considering it imperious on him to ascertain that she was not a privateer (for he knew that several were near), went in chase and fired at her, when, unfortunately, the master was killed. The mate of the schooner represented the circumstances to the Admiralty, and the court martial was accordingly held. No person belonging to the schooner appeared to substantiate the charge of murder, although they had received notice of the trial. The court martial not only acquitted Captain Blackwood, but adjudged his conduct to have been strictly correct, and that he could not have acted otherwise; Ann. Reg. 1812, 110, 111. "Marianna Flora," 11 Wheaton 1, (1826); 1 Cobbett Cases, 3 ed. (1909) The 264 et seq. 1838-The British packet "Express" on her way from Vera Cruz to Sacrificios, was stopped by a French ship of war, and her pilot taken on board the French ship. The French Government apologized for the occurrence, stating that the officer who had given the order was not aware that the packet was an English vessel. (Parl. Papers of 1839). 1855 The "El Dorado," a United States mail vessel, was stopped upon the high seas by a Spanish frigate, and was boarded by a Spanish officer and required to produce papers. It appeared that the cruiser was only ordered to visit or search foreign vessels when within the maritime jurisdiction of Spain. The apology was considered to be "technically satisfactory" by the United States Government; 2 Halleck, Int. L., 4 ed. (1908) 273n. 1831-The brig "Ann," an American ship of Boston, on a voyage from New Orleans to Madeira, was captured by a part of the Portuguese squadron and was, with her cargo, condemned by a Portuguese court at Lisbon. Upon the remonstrance of the United States, the claim of the owner for compensation was, on the 19th of January, 1832, admitted by Portugal, and part of the amount soon afterwards paid. See Allen v. Hammond, 11 Peters, 63 (1837). INTERFERENCE FOR SELF-PRESERVATION. §298. There are two cases where a public ship of a state will interfere with the public or private ships of another state for the purpose of self-preservation: (A) in time of war; (B) in time of peace. In time of war, the conflict is between public ships of the enemy, and neutrals will be interfered with to a certain extent, and the discussion of this case is relegated to a subsequent part of the treatise.3 An interference between public ships in time of peace will lead to war, unless the matter is adjusted. Such cases are extremely rare, and when they do occur, are matters of accident or disregard of order by subordinate officers, which are disposed of by apology and such other amends as the case calls for. The discussion, then, is narrowed to the case of interference by a public ship with a private ship of another state on the ground that the private ship is engaged in an enterprise hostile to the government of the seizing state, and there seems to be no contention but that in such case the seizure is proper. The private vessel is not engaged in a state act and is beyond the restraint of its own state. The question then is whether an individual can use the flag of his own state as a cloak to cover an expedition hostile to another state. The two principal instances which have occurred have been those of filibustering expeditions in aid of insurgents.* 3 See $955 et seq., post. 4 1857, June-The "Cagliari," a Sardinian passenger steamer, was seized, when on her voyage from Genoa to Tunis, by some of her passengers, who assumed control of the vessel and made for the Isle of Ponza, where they broke into the Neapolitan state prison and released some hundreds of prisoners, by whose assistance they compelled the officers of the "Cagliari" to land them at Sapri, where they commenced a revolutionary movement which was speedily overcome by the Neapolitan troops. The captain of the "Cagliari" after landing the revolutionists, steered for Naples to report, but when some distance off Capri she was captured by Neapolitan cruisers and taken into Naples, where her crew, amongst whom were two English engineers, were imprisoned. The Sardinian Government contending that the assistance to the Neapolitan rebels by the captain and crew of the "Cagliari" was forced upon them against their will, demanded the restitution of the vessel and liberation of her crew. The Neapolitan Government refused to restore. The British Government, however, supported Sardinia; Naples yielded, and the British engineers were granted cash compensation for their sufferings, and the "Cagliari " and her crew given up to the British consul and by him conveyed to Genoa. The claims of Sardinia were ignored and the Neapolitan prize court subsequently decided that the capture of the "Cagliari" on the high seas was valid because she had been engaged in acts of combined hostility and piracy. This case differs from the "Virginius" because when the ship was seized she had ceased to participate in any unlaw $299 Interference Between Ships If the expedition has escaped the jurisdiction of its own state, proceeded upon the open sea, and then discovered its true purpose, there seems to be no reason why the state concerned should not interfere before it reaches its destination. The interfering state acts at its peril, just as in the case of a seizure on ground of piracy, and if it turns out that there was no ground for the seizure, there is a plain case of invasion of the jurisdiction of another state, which calls for adjustment. INTERFERENCE IN BLACK SLAVE TRADE. $299. Since every state has exclusive jurisdiction over its own ships on the high sea, it follows that no other state may inquire into or take cognizance of the fact that any person is held as a slave on board such a vessel. The only power which may act in the matter is the independent state whose member is so confined. Black slaves ful proceeding against the government of Naples, and it seems as if the action of the Sardinian government was not to be sustained on any ground at all; Walker, Man. Int. L., (1895) 88. 1873 -Cuban insurrection against Spain. The "Virginius," owned by insurrectionists and flying the American flag, was seized by Spain. The persons on board, Americans, Englishmen and Cubans, were condemned and executed as pirates. Seizure of vessel was regarded as justifiable, execution unjustifiable, as charge of piracy was groundless. Compensation paid Great Britain and United States of America. Said in 1 Oppenheim, Int. L., 2 ed. (1912) 187n3, not to be a case of necessity; 1 Cobbett Cases, 3 ed. (1909) 165 et seq.; Hall, Int. Law, 6 ed. (1909) 270; 2 Moore, Dig. of Int. L., (1906) 895903, 967, 968; Walker, Man. Int. L., (1895) 91. In this case it seems clear that Spain without doubt had power to seize the filibusterers immediately upon their entry within Cuban waters. Furthermore, that if there was any rule of international law forbidding the members of one state to go forth from the jurisdiction armed for the purpose of fomenting insurrection with another, then there was an obligation on the United States to keep the filibusterers within its jurisdiction, which obligation having been by inadvertence or otherwise, not fulfilled, and the filibusterers having slipped through, there was then a case of their being at large on the high seas and very much in the predicament of being liable to be seized. So far as the fact that the ship flew the United States flag is concerned, it seems clear that the Spanish vessel acted at its peril in making a seizure. If it should turn out, as in fact it did turn out, that it was a Spanish vessel, then there was no question involving the United States. Under the heading of "Self-defense on sea in time of peace," Westlake discusses the case of the "Virginius" and the seizure by the United States vessels of British fur sealers outside the three miles limit in Behring Sea, and the cases of fraudulent registration of vessels. The discussion is obscure; 1 Westlake, Int. L., 2 ed. (1910) 171. Fisheries in the Open Sea $300 were taken on the African coast by force or bought from native tribes, which were internationally helpless and unable to protect their members. Therefore, the slave trade as such was entirely outside the purview of international law; in other words, there was no method by which slavers could be exterminated unless by agreement between the maritime powers of the world whose members were engaged in the slave trade. It therefore became necessary to bring about some agreement by the various maritime powers because regulations operating to restrain such traffic involved an invasion. of the jurisdiction of each of such powers to which the regulations were made to apply. Great Britain took the lead in the negotiation of treaties under the provisions of which the war vessels of the contracting parties were authorized to hunt down slavers and, for the accomplishment of that end, to exercise the right of visit and search over merchant ships of the various states. This movement has been almost entirely successful, and now the black slave trade has almost disappeared from the world except on the west coast of Africa.3 FISHERIES IN THE OPEN SEA. 8 $300. Fisheries in the open sea are not the subject cf the jurisdiction of any state." Each state, however, has an interest in them. The interest, therefore, is common and no state may exclude another from any such fishing. This common interest has resulted in many fisheries being regulated by treaty in the interests of all, under the Dana's ed. (1866) 201; Woolsey, Int. L., 6 ed. (1897) 236 et seq.; Resolutions of the Institute of International Law, at meeting of 1891, Carnegie Ed., 93. 8 Hershey, Int. L., (1912) 226-230; 1 Halleck, Int. L., 4 ed. (1908) 263–270; 2 Moore, Dig. of Int. L., (1906) 914– 951; 1 Phillimore, Int. L., 3 ed. (18791888) 402 et seq.; Wheaton, Elements, Dana's ed. (1866) 197; Woolsey, Int. L., 6 ed. (1897) 237, 370 et seq. See Resolutions of the Institute of International Law, at meeting of 1891, Carnegie Ed., 93, and Resolutions of the Institute of International Law, at meeting of 1894, Carnegie Ed., 111. 1 Oppenheim, Int. L., 2 ed. (1912) 348-353. |