International Law. A Treatise Volume I Part 42

276; Fiore, II. Nos. 732-736; Perels, -- 17; Taylor, -- 266; Bonfils, No.

519.]

(3) So-called Right of Pursuit. It is a universally recognised customary rule that men-of-war of a littoral State can pursue into the Open Sea, seize, and bring back into a port for trial any foreign merchantman that has violated the law whilst in the territorial waters of the State in question. But such pursuit into the Open Sea is permissible only if commenced while the merchantman is still in the said territorial waters or has only just escaped thence, and the pursuit must stop as soon as the merchantman pa.s.ses into the maritime belt of a foreign State.[543]

[Footnote 543: See Hall, -- 80.]

(4) Abuse of Flag. It is another universally recognised rule that men-of-war of every State may seize and bring to a port of their own for punishment any foreign vessel sailing under the flag of such State without authority.[544] Accordingly, Great Britain has, by section 69 of the Merchant Shipping Act, 1894, enacted:--"If a person uses the British flag and a.s.sumes the British national character on board a ship owned in whole or in part by any persons not qualified to own a British ship, for the purpose of making the ship appear a British ship, the ship shall be subject to forfeiture under this Act, unless the a.s.sumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right."

[Footnote 544: The four exceptions mentioned in the text above are based on universally recognised customary rules of the Law of Nations. It is, of course, possible for several States to enter into treaty agreements according to which their men-of-war acquire certain powers over each other's merchantmen on the Open Sea. According to such agreements, which are, however, not universal, the following additional exceptions may be enumerated:--

(1) In the interest of the suppression of the slave trade, the signatory Powers of the General Act of the Brussels Conference of 1890 to which all the larger maritime Powers belong, have, by articles 20-65, stipulated that their men-of-war shall have the power, in certain parts of the Open Sea where slave traffic still continues, to stop every suspect vessel under 500 tons.

(2) In the interest of the Fisheries in the North Sea, special cruisers of the littoral Powers control all fishing vessels and b.u.mboats. See below, ---- 282 and 283.

(3) In the interest of Transatlantic telegraph cables, men-of-war of the signatory Powers of the treaty for the protection of such cables have certain powers over merchantmen. (See below, -- 287.)]

[Sidenote: How Verification of Flag is effected.]

-- 267. A man-of-war which meets a suspicious merchantman not showing her colours and wishes to verify the same, hoists her own flag and fires a blank cartridge. This is a signal for the other vessel to hoist her flag in reply. If she takes no notice of the signal, the man-of-war fires a shot across her bows. If the suspicious vessel, in spite of this warning, still declines to hoist her flag, the suspicion becomes so grave that the man-of-war may compel her to bring to for the purpose of visiting her and thereby verifying her nationality.

[Sidenote: How Visit is effected.]

-- 268. The intention to visit may be communicated to a merchantman either by hailing or by the "informing gun"--that is, by firing either one or two blank cartridges. If the vessel takes no notice of this communication, a shot may be fired across her bows as a signal to bring to, and, if this also has no effect, force may be resorted to. After the vessel has been brought to, either an officer is sent on board for the purpose of inspecting her papers, or her master is ordered to bring his ship papers for inspection on board the man-of-war. If the inspection proves the papers to be in order, a memorandum of the visit is made in the log-book, and the vessel is allowed to proceed on her course.

[Sidenote: How Search is effected.]

-- 269. Search is naturally a measure which visit must always precede. It is because the visit has given no satisfaction that search is inst.i.tuted. Search is effected by an officer and some of the crew of the man-of-war, the master and crew of the vessel to be searched not being compelled to render any a.s.sistance whatever except to open locked cupboards and the like. The search must take place in an orderly way, and no damage must be done to the cargo. If the search proves everything to be in order, the searchers have carefully to replace everything removed, a memorandum of the search is to be made in the log-book, and the searched vessel is to be allowed to proceed on her course.

[Sidenote: How Arrest is effected.]

-- 270. Arrest of a vessel takes place either after visit and search have shown her liable thereto, or after she has committed some act which alone already justifies her seizure. Arrest is effected through the commander of the arresting man-of-war appointing one of her officers and a part of her crew to take charge of the arrested vessel. Such officer is responsible for the vessel and her cargo, which latter must be kept safe and intact. The arrested vessel, either accompanied by the arresting vessel or not, must be brought to such harbour as is determined by the cause of the arrest. Thus, neutral or enemy ships seized in time of war are always[545] to be brought into a harbour of the flag State of the captor. And the same is the case in time of peace, when a vessel is seized because her flag cannot be verified, or because she was sailing under no flag at all. On the other hand, when a fishing vessel or a b.u.mboat is arrested in the North Sea, she is always to be brought into a harbour of her flag State and handed over to the authorities there.[546]

[Footnote 545: Except in the case of distress or unseaworthiness; see below, vol. II. -- 193.]

[Footnote 546: See below, ---- 282 and 283.]

[Sidenote: Shipwreck and Distress on the Open Sea.]

-- 271. It is at present the universal conviction on the part of the States that goods and persons shipwrecked on the Open Sea do not thereby lose the protection of the flag State of the shipwrecked vessel. No State is allowed to recognise appropriation of abandoned vessels and other derelicts on the Open Sea by those of its subjects who take possession thereof. But every State can by its Munic.i.p.al Laws enact that those of its subjects who take possession of abandoned vessels and of shipwrecked goods need not restore them to their owners without salvage,[547] whether the act of taking possession occurred on the actual Open Sea or within territorial waters and on sh.o.r.e of the respective State.

[Footnote 547: The Conference of the Maritime Committee held at Brussels in September 1910 also produced a draft convention concerning salvage, which the British Government likewise intends to ratify provided Parliament pa.s.ses the "Maritime Conventions Bill," see above, -- 265, p.

333, note 2, and Supplement to the _American Journal of International Law_, IV. (1910), p. 126. According to the practice of the Admiralty Court--see the case of the _Johann Friederich_, 1 W. Robinson, 35--salvage on the Open Sea is, just like collisions, a matter of _communis juris_ upon which the Courts of all maritime States are competent to adjudicate. See Phillimore, IV. -- 815; and Dicey, "Conflict of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the Merchant Shipping Act, 1894.]

As regards vessels in distress on the Open Sea, some writers[548]

maintain that men-of-war must render a.s.sistance even to foreign vessels in distress. But it is impossible to say that there is a customary or conventional rule of the Law of Nations in existence which imposes upon all States the duty of instructing their men-of-war to render a.s.sistance to foreign vessels in distress, although many States order by Munic.i.p.al Regulations their men-of-war to render such a.s.sistance, and although morally every vessel is bound to render a.s.sistance to another vessel in distress.[549]

[Footnote 548: See, for instance, Perels, -- 25, and Fiore, II. No. 732.]

[Footnote 549: According to article 11 of the draft convention concerning salvage produced by the Conference of the Maritime Committee at Brussels in September 1910--see above, note 1--"every master shall be obliged, as far as he can do so without serious danger to his vessel, his crew, or his pa.s.sengers, to lend a.s.sistance to any person, even an enemy, found at sea in danger of perishing. The owner of the vessel shall not be liable for violations of the foregoing provision."]

V

PIRACY

Hall, ---- 81-82--Westlake, I. pp. 177-182--Lawrence, -- 102--Phillimore, I. ---- 356-361--Twiss, I. ---- 177 and 193--Halleck, I. pp. 444-450--Taylor, ---- 188-189--Walker, -- 21--Westlake, I. pp.

177-182--Wheaton, ---- 122-124--Moore, II. ---- 311-315--Bluntschli, ---- 343-350--Heffter, -- 104--Gareis in Holtzendorff, II. pp.

571-581--Gareis, -- 58--Liszt, -- 26--Ullmann, -- 104--Bonfils, Nos.

592-594--Despagnet, Nos. 431-433--Merignhac, II. pp.

506-511--Pradier-Fodere, V. Nos. 2491-2515--Rivier, I. pp.

248-251--Calvo, I. ---- 485-512--Fiore, I. Nos. 494-495, and Code, Nos. 295-300--Perels, ---- 16-17--Testa, pp. 90-97--Ortolan, "Diplomatie de la mer" (1856), I. pp. 231-253--Stiel, "Der Thatbestand der Piraterie" (1905).

[Sidenote: Conception of Piracy.]

-- 272. Piracy, in its original and strict meaning, is every unauthorised act of violence committed by a private vessel on the Open Sea against another vessel with intent to plunder (_animo furandi_). The majority of writers confine piracy to such acts, which indeed are the normal cases of piracy. But there are cases possible which are not covered by this narrow definition, and yet they are practically treated as though they were cases of piracy. Thus, if the members of the crew revolt and convert the ship and the goods thereon to their own use, they are considered to be pirates, although they have not committed an act of violence against another ship. Thus, secondly, if unauthorised acts of violence, such as murder of persons on board the attacked vessel or destruction of goods thereon, are committed on the Open Sea without intent to plunder, such acts are practically considered to be piratical.

Under these circ.u.mstances several writers,[550] correctly, I think, oppose the usual definition of piracy as an act of violence committed by a private vessel against another with intent to plunder. But no unanimity exists among these very writers concerning a fit definition of piracy, and the matter is therefore very controversial. If a definition is desired which really covers all such acts as are practically treated as piratical, piracy must be defined as _every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or pa.s.sengers against their own vessel_.[551]

[Footnote 550: Hall, -- 81; Lawrence, -- 102; Bluntschli, -- 343; Liszt, -- 26; Calvo, -- 485.]

[Footnote 551: The conception of Piracy is discussed in the case of the Republic of Bolivia _v._ The Indemnity Mutual Marine a.s.surance Co., L.R.

(1909), 1 K.B., 785.]

Already, before a Law of Nations in the modern sense of the term was in existence, a pirate was considered an outlaw, a "hostis humani generis."

According to the Law of Nations the act of piracy makes the pirate lose the protection of his home State, and thereby his national character; and his vessel, although she may formerly have possessed a claim to sail under a certain State's flag, loses such claim. Piracy is a so-called "international crime";[552] the pirate is considered the enemy of every State, and can be brought to justice anywhere.

[Footnote 552: See above, -- 151.]

[Sidenote: Private Ships as Subjects of Piracy.]

-- 273. Private vessels only[553] can commit piracy. A man-of-war or other public ship, as long as she remains such, is never a pirate. If she commits unjustified acts of violence, redress must be asked from her flag State, which has to punish the commander and to pay damages where required. But if a man-of-war or other public ship of a State revolts and cruises the sea for her own purposes, she ceases to be a public ship, and acts of violence now committed by her are indeed piratical acts. A _privateer_ is not a pirate as long as her acts of violence are confined to enemy vessels, because such acts are authorised by the belligerent in whose services she is acting. And it matters not that the privateer is originally a neutral vessel.[554] But if a neutral vessel were to take Letters of Marque from both belligerents, she would be considered a pirate.

[Footnote 553: Piracy committed by the mutinous crew will be treated below, -- 274.]

[Footnote 554: See details regarding this controversial point in Hall, -- 81. See also below, vol. II. ---- 83 and 330.]

Doubtful is the case where a privateer in a civil war has received her Letters of Marque from the insurgents, and, further, the case where during a civil war men-of-war join the insurgents before the latter have been recognised as a belligerent Power. It is evident that the legitimate Government will treat such ships as pirates; but third Powers ought not to do so, as long as these vessels do not commit any act of violence against ships of these third Powers. Thus, in 1873, when an insurrection broke out in Spain, Spanish men-of-war stationed at Carthagena fell into the hands of the insurgents, and the Spanish Government proclaimed these vessels pirates, England, France, and Germany instructed the commanders of their men-of-war in the Mediterranean not to interfere as long as these insurgent vessels[555]

abstained from acts of violence against the lives and property of their subjects.[556] On the other hand, when in 1877 a revolutionary outbreak occurred at Callao in Peru and the ironclad _Huascar_, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal without payment from one of these, and forcibly took two Peruvian officials from on board another where they were pa.s.sengers, she was justly considered a pirate and attacked by the British Admiral de Horsey, who was in command of the British squadron in the Pacific.[557]

[Footnote 555: See Calvo, I. ---- 497-501; Hall, -- 82; Westlake, I. pp.

179-182.]

[Footnote 556: But in the American case of the _Ambrose Light_ (25 Federal 408; see also Moore, II. -- 332, p. 1098) the Court did not agree with this. The _Ambrose Light_ was a brigantine which, when on April 24, 1885, she was sighted by Commander Clark of the U.S.S. _Alliance_ in the Caribbean Sea, was flying a strange flag showing a red cross on a white ground, but she afterwards hoisted the Columbian flag; when seized she was found to carry sixty armed soldiers, one cannon, and a considerable quant.i.ty of ammunition. She bore a commission from Columbian insurgents, and was designed to a.s.sist in the blockade of the port of Carthagena by the rebels. Commander Clark considered the vessel to be a pirate and sent her in for condemnation. The Court held that in absence of any recognition of the Columbian insurgents as a belligerent Power the _Ambrose Light_ had been lawfully seized as a pirate. The vessel was, however, nevertheless released because the American Secretary of State had recognised by implication a state of war between the insurgents and the legitimate Columbian Government.]

[Footnote 557: As regards the case of the Argentinian vessel _Portena_ and the Spanish vessel _Montezuma_, afterwards called _Cespedes_, see Calvo, I. ---- 502 and 503.]

The case must also be mentioned of a privateer or man-of-war which after the conclusion of peace or the termination of war by subjugation and the like continues to commit hostile acts. If such vessel is not cognisant of the fact that the war has come to an end she cannot be considered as a pirate. Thus the Confederate cruiser _Shenandoah_, which in 1865, for some months after the end of the American Civil War, attacked American vessels, was not considered a pirate[558] by the British Government when her commander gave her up to the port authorities at Liverpool in November 1865, because he a.s.serted that he had not known till August of the termination of the war, and that he had abstained from hostilities as soon as he had obtained this information.

[Footnote 558: See Lawrence, -- 102.]