Slike strani
PDF
ePub

TERRITORIAL WATERS.—Some further explanation of the rule of the “three mile limit" by Mr. Hall may be here added :

“Of the marginal seas, and enclosed waters, which were regarded at the beginning of the present century as being susceptible of appropriation, the case of the first is the simplest. In claiming its marginal seas as property a state is able to satisfy the condition of valid appropriation, because a narrow belt of water along a coast can be effectively commanded from the coast itself either by guns or by means of a coast-guard. In fact also such a belt is always appropriated, because states reserve to their own subjects the enjoyment of its fisheries, or, in other words, take from it the natural products which it is capable of yielding. It may be added that, unless the right to exercise control were admitted, no sufficient security would exist for the lives and property of the subjects of the state upon land ; they would be exposed without recog. nised means of redress to the intended or accidental effects of violence directed against themselves or other persons of whose nationality, in the absence of a right to pursue and capture, it would often be impossible to get proof, and whose state consequently could not be made responsible for their deeds. Accordingly, on the assumption that any part of the sea is susceptible of appropriation, no serious question can arise as to the existence of property in marginal waters. Their precise extent however is not so certain. Generally their limit is fixed at a marine league from the shore ; but this distance was defined by the supposed range of a gun of position, and the effect of the recent increase in the power of artillery has not yet been taken into consideration, either as supplying a new measure of the space over which control may be efficiently exercised, or as enlarging that within which acts of violence way be dangerous to persons and property on shore. It may be doubted, in view of the very diverse opinions which have been held until lately as to the extent to which marginal seas may be appropriated, of the lateness of the time at which much more extensive claims have been fully abandoned, and of the absence of cases in which the breadth of territorial water has come into international question, whether the three mile limit has ever been unequivocally settled ; but, in any case, as it has been determined, if determined at all, upon an assumption which has ceased to hold good, it would be pedantry to adhere to the rule in its present form ; and perhaps it may be said without impropriety that a state has the right to extend its territorial waters from time to time at its will with the increased range of guns ; though it would undoubtedly be more satisfactory that an arrangement upon the subject should be come to by common agreement.” (Hall's International Law, $ 41.)

“Bluntschli thinks that, considering the range of modern artillery, the threemile zone is too narrow. Phillimore and Fiore express the same opinion, but think that an alteration can only be made by treaty. It appears to have been suggested by the American government to that of England in 1864 that territorial waters should be considered to extend to a distance of five miles from shore." (Id.)

$36. “The Laws of Any State." The laws of the States will comprise the following classes :(i.) Imperial Acts relating to the Constitution and government of the colonies

when they become States : (ii.) Imperial Acts relating to matters of ordinary legislation expressly applic

able to the colonies when they become States : (iii.) The Common law so far as applicable and not modified by colonial or

State legislation : (iv.) Laws of the realm of England maile applicable to some colonies by the

general terms of the Act of 9 George IV. c. 83, and not since repealed or

amended by colonial legislation : (v.) Acts relating to constitutional matters as well as to matters of orılinary

legislation passed by the colonial or State legislatures in the exercise of

Statutory authority conferred by Imperial law. All these laws will remain in full force and effect until they become inconsistent with-(1) The Commonwealth of Australia Constitution Act, or (2) some Act amending the Constitution, or (3) laws to be made thereunder by the Parliament of the Commonwealth. By the Constitution of the colonies their legislatures have power to make laws in and for those colonies respectively in all cases whatsoever. When those colonies become States their large powers will by degrees be considerably cut down, although they will be compensated for the loss of direct authority by their representation in the Federal Parliament. The jurisdiction of that Parliament will over-lap and in time will considerably contract the realm of State jurisdiction. As the federal legislation within the area of enumerated powers acquires activity and increases in volume, the State laws within that area will be gradually displaced by federal laws, but until they are so displaced through repugnancy they will retain their original vitality and be binding on the people of their respective States.

S 37. “The Laws of the Commonwealth.'
This is a more suitable and comprehensive expression than the one which appears at
the beginning of this clause, viz., “this Act and all laws made by the Parliament of the
Commonwealth.” The laws of the Commonwealth will consist of the following classes :-

(1.) The Commonwealth of Australia Constitution Act.
(11.) Alterations of the Constitution pursuant to the provisions of Chapter VIII.
(111.) Laws made by the Parliament of the Commonwealth under the Consti

tution. It will be noticed that the second group of laws as above classified will not be laws made by the Parliament; they may be laws proposed either by one or both of the Federal Chambers, subject to certain conditions, and afterwards approved by the qualified electors of the Commonwealth and assented to by the Governor-General or by the Queen. $38. “British Ships."

. The rights, duties, and liabilities of British ships whilst at home or abroad have been settled by a long series of legal decisions interpreting and enforcing the common law, as well as by the codified provisions of the Merchant Shipping Act, 1894, some parts of which are in force throughout the British empire. One of the fundamental principles of British shipping law is that British merchant ships sailing upon the high seas are considered parts of the territory of the British empire and come within the rule of extraterritoriality. It is a principle of the Common Law and of the law of nations that a ship on the high seas is a part of the territory of the State to which she belongs, and therefore an English ship is deemed to be a part of England. (Per Blackburn, J., Marshall v. Murgatroyd, L. R. 6 Q. B. 31.) Kliiber

says “that upon the ocean every ship is considered extra-territorial in regard to all foreign nations. A merchant vessel ought to be considered as a floating colony of its State.” (Droit des Gens, part 2, Tit. 1, c. 2, § 299.)

Hall and other writers on international law describe Klüber's theory as a fiction, but they all agree that a ship at sea should be subject to the jurisdiction of the State under whose flag she sails ; that such a doctrine is most reasonable and advantageous ; and that if ships were amenable to no tribunal the sea would become a place where every crime might be committed with impunity. (Twiss' Law of Nations in Time of War, p. 172.)

A merchant vessel in non-territorial waters is therefore subject to the sovereignty of that country only to which she belongs, and all acts done on board her whilst on such waters'are cognizable only by the courts of her own State unless they be acts of piracy. This rule extends to cases in which, after a crime has been committed by or upon a native of a country other than that to which the ship belongs, she enters a port of that State with the criminal on board. (Hall's International Law, p. 186.) In foreign territorial waters, however, a merchant vessel is under the territorial jurisdiction, and its officers and crew are subject to the local laws prevailing in such waters.

CRIMINAL JURISDICTION ON THE HIGH SEAS. – All persons on board a ship are within the jurisdiction of the natio : whose flag the ship flies, in the same manner as if they were within the territory of that nation. The criminal jurisdiction of the Admiralty ef England extends over British ships, not only on the high seas, but also on rivers below the bridges where the tide ebbs and flows and where great ships go, though at a spot where the municipal authorities of a foreign country might exercise concurrent jurisdiction if invoked. (Per Blackburn, J., in Reg. v. Anderson (1886] L.R. I C.C. 161-4.) There will be jurisdiction at common law if a British ship be on the high seas, infra primos pontes, or in a tidal river where great ships come and go. (Reg. v. Armstrong (1875) 13 Cox, C.C. 185.) The offence need not be consummated or wholly completed on board such ship to give jurisdiction (id.) A larceny of bonds was committed by some person unknown on board a British ocean- n-going merchant ship lying in an open river, moored to the quay at Rotterdam, in Holland, at a distance of 18 miles from the sea, but within the ebb and flow of the tide. A person who afterwards was found in England in possession of the stolen property was there convicted of receiving the bonds. (Reg. v. Carr (1882] 10 Q.B.D. 76.) The surviving crew of an English yacht, cast away in a storm on the high seas, who were obliged to take to an open boat, and who were, they alleged, constrained by hunger to kill and eat a boy, one of their number, were tried in England and found guilty of murder. (Reg. v. Dudley [1894] 14 Q.B.D. 273.) A hulk retaining the general appointments of a ship registered as a British ship, though only used as a floating warehouse, is a British ship. (Reg. v. Armstrong, 13 Cox, C.C. 185.)

JURISDICTION OF COLONIAL Courts. — The jurisdiction to try persons for offences committed on the high seas, within the jurisdiction of the Admiralty, was in 1819 conferred on colonial courts by the Act 12 and 13 Vic. c. 96, sec. I. This provides that colonial courts should have the same jurisdiction for trying such offences, and should be empowered to take all such proceedings for bringing persons charged therewith to trial, and for and auxiliary to and consequent upon the trial, as by the law of the colony might have been taken if the offence had been committed upon any waters within the limits of the colony.

LATER IMPERIAL LEGISLATION.–By the Merchant Shipping Act, 1867 (30 and 31 Vic. c. 124, s. 11.) it was enacted that if any British subject commits any offence on board any British ship, or on board any foreign ship to which he does not belong, any court of justice in her Majesty's dominions which would have cognizance of such offence, if committed on board a British ship, within the limits of the ordinary jurisdiction of such court, shall have jurisdiction to hear and determine the case, as if the offence had been so committed.

The Merchant Shipping Act, 1894, sec. 686, re-enacts in substance the provisions of previous legislation giving jurisdiction, in the case of any offence committed by a British subject on board any British ship on the high seas, or in any foreign port or harbour, or by a person not a British subject on board any British ship on the high seas, to any court in her Majesty's dominions within the jurisdiction of which that person is found. Sec. 687 further provides that all offences against property or person committed at any place, either ashore or afloat, out of Her Majesty's dominions by any master, seaman or apprentice who at the time of the offence is, or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature and liable to the same punishment as if committed within the jurisdiction of the Admiralty of England.

FOREIGNERS ON British Ships. -A foreigner who, whilst on board a British ship upon the high seas, commits an offence against British law, is amenable to such law, and it makes no difference whether he has gone on board voluntarily or has been taken and detained there against his will. (Reg. v. Lopez ; Reg. v. Sattler, 27 L.J. M.C. 48.)

A foreigner was convicted of manslaughter on board a British ship in the river Garonne, in France, 35 miles from the sea, but within the ebb and flow of the tide. (Reg. v. Anderson, L. R. 1. C.C. 161.) A foreigner on board a British ship is entitled to the same protection as if he were on English soil. (Reg. v. Leslie, 8 Cox, C.C., 269 ; 29 L.J. M.C. 97.)

JURISDICTION OVER FOREIGN Ships. -A German vessel, under the command and immediate direction of a German subject, collided with a British steamer navigating the English Channel at a point within two miles and a half from Dover Beach, with the result that the British ship sank and a British subject on board was drowned. The captain of the German ship was tried and found guilty of manslaughter at the Central Criminal Court. It was held by the majority of the Court of Criminal Appeal, that the Central Criminal Court had no jurisdiction to try the caso. (Reg. v. Keyn, The Franconia, 2 Ex. D. 63 ; 46 L.J., M.C. 17.) But now by the Territorial Waters Jurisdiction Act, 1878 (41 and 42 Vic. c. 73 s. 2) an offence committed by any person, whether a British subject or not, on the open sea, within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly. By s. 7 of this Act “ Territorial waters of Her Majesty's dominions' means any part of the open sea within one marine league of the coast measured from low water mark.

OWNERSHIP OF British Ships.—Under the provisions of the Merchant Shipping Act, 1894, no person can own a British ship except a natural born or naturalized subject of the Queen, or a denizen by letters of Denization, or a corporate body established under and subject to the law of some part of the British dominions. Every such ship must be registered, and every transfer must be by registered bill of sale. If a ship belonging to British subjects be not registered she is not recognized as a British ship, and is then not entitled to the benefit or protection enjoyed by British ships, or to sail under the British flag, or to assume the British national character.

British MERCHANT SHIPS AND COLONIAL Laws.-It will now be convenient to consider some of the obligations and liabilities of British merchant ships in the Territorial waters, under the law as it existed before, and under the law as it will be after the establishment of the Commonwealth. The jurisdiction of colonial legislatures over British ships whilst within the colonial ports, harbours, rivers and adjacent territorial waters, extends to such subjects as the following :- The governance and preservation of ports, the regulation of shipping and navigation, the mooring of vessels, the management of wharves and piers, the organization of marine boards and of courts of marine inquiry, pilots and pilotage, lights and signals, prevention of accidents on ships, inspection of ships, equipment and survey of ships, carriage of dangerous goods, storage of cargoes, misconduct of passengers, misconduct of crew, health and safety of passengers, landing of passengers, investigations respecting casualties, and inquiries into complaints of incompetency and misconduct on the part of mariners.

COLONIAL COURTS TO ESFORCE IMPERIAL SHIPPING LAWS. — By the Merchant Shipping Act, 1854 (17 and 18 Vic.c. 101) and by the amending Merchant Shipping Act, 1862 (25 and 26 Vic. c. 63) legislation was adopted in order to increase the efficiency of, and enlarge the supervision over, the mercantile marine of England. Higher qualifications for mates and masters were exacted, and means were adopted by which incompetency and misconduct might be promptly brought before the Board of Trade, by whom certificates to mates and masters were issued. It was further provided that the legislature of any British possession should be able to make laws for the appointment of a court or tribunal to inquire into charges of incompetency or misconduct on the part of masters and mates of ships, and to cancel or suspend the certiticates of offenders subject to the review of the Board of Tra de. In 1865 the Victorian Parliament passed the Passengers Harbour and Navigation Act, sec. 77 of which enacted that the Steam Navigation Board should be constituted a court or tribunal authorized to exercise such powers as are mentioned in or conferred by the 212nd section of the Merchant Shipping Act, 1854, and the 23rd section of the Merchant Shipping Act, 1862. Similar Boards were established by other colonial legislatures.

The extra-territorial jurisdiction of Australian courts of inquiry created by local legislation in the exercise of statutory power conferred by the above Imperial Acts was considered in the case of Re Victoria Steam Navigation Board, ex parte Allan, in which the Supreme Court held that the Victorian Board had no jurisdiction to deal with a master holding a certificate issued by the Board of Tradle, on a charge of negligence resulting in a collision off Cape Jaffa, South Australia ; that it could only inquire into misconduct which had taken place within the jurisdiction of the Board, viz., within the territorial waters of the colony in which the Board was constituted (3 A.L.T. 1,7 V.L.R. [L] 248, June, 1881). In consequence of this decision there was a demand for further Imperial legislation enlarging the authority of marine boards, and in August, 1882, the Act (45 and 46 Vic. c. 76) was passed, which is now re-enacted in sec. 478 of the Merchant Shipping Act, 1894 (57 and 58 Vic. c. 60). This section expressly empowers the legislature of any British possession to authorize any court or tribunal to make inquiries as to shipwrecks or other casualties affecting ships, or as to charges of incompetency or misconduct on the part of masters, mates or engineers of ships, in the following cases :

(a) Where a shipwreck or casualty occurs to a British ship on or near the

coasts of the British possession or to a British ship in the course of a

voyage to a port within the British possession : (6) Where a shipwreck or casualty occurs in any part of the world to a British

ship registered in the British possession: (C) Where some of the crew of a British ship which have been wrecked or to

which a casualty has occurred, and who are competent witnesses to the

facts, are found in the British possession : (d) Where the incompetency or misconduct has occurred on board a British

ship on or near the coasts of the British possession, or on board a British

ship in the course of a voyage to a port within the British possession : (e; Where the incompetency or misconduct has occurred on board a British ship

registered in the British possession : (f) When the master, mate, or engineer of a British ship who is charged with

incompetency or misconduct on board that British ship is found in the

British possession. A British ship during its voyage on the high seas from any British port to Australia was, before the establishment of the Commonwealth, and still is, subject solely to British Civil and Criminal Law. Upon its entry into the territorial waters, that is within the three mile limit of any colony, say Western Australia, it still remained subject to British Merchant Shipping Acts, but in addition thereto it became subject to the local laws of Western Australia, Civil and Criminal, including local navigation and shipping regulations, so far as those laws and regulations were not contrary to British Merchant Shipping Acts. On leaving the ports of Western Australia and passing beyond the three mile limit, the British ship ceased to be subject to West Australian laws, and became once more subject only to Imperial laws. Upon the same ship entering the territorial waters of South Australia it, in like manner, came under the local laws of South Australia, Civil and Criminal, including local navigation and shipping regulations, so far as those laws and regulations were not repugnant to the Merchant Shipping Acts. On clearing the ports of Adelaide and resuming its voyage on the high seas, the British ship again came and continued solely under British laws until it reached the Victorian waters, where it once more came under local laws as in the cases of the other colonies mentioned ; and so on from one Australian port to another.

Under the Constitution of the Commonwealth British ships will still be under Imperial shipping laws, and local shipping laws not contrary to Imperial laws, but, instead of encountering five or six different sets of local laws relating to navigation and shipping in five or six different Australian ports, they will — when the Federal Parliament has legislated on the subject - find one uniform federal law relating to navigation and shipping operating in every port within the limits of the Commonwealth. In journeying along the high seas between federal ports, and outside the three mile limit, British ships whose first port of clearance is outside the Commonwealth will not be subject to Commonwealth law, but will, as before, remain solely under British law; and British

« PrejšnjaNaprej »