§ 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 extra-territoriality. 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.)

Klüber 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 nation 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 of

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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. 1 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-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 [1884] 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 1849 conferred on colonial courts by the Act 12 and 13 Vic. c. 96, sec. 1. 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.)

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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 case. (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 ENFORCE IMPERIAL SHIPPING LAWS.—By the Merchant Shipping Act, 1854 (17 and 18 Vic. c. 104) 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 certificates of offenders subject to the review of the Board of Trade. 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 242nd 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

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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 Trade, 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:
  • (b) 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

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ships whose port of destination is outside the Commonwealth will also not be subject to Commonwealth law.

The Parliament of the Commonwealth has, under sections 51 and 98 of the Constitution, power to make laws relating to navigation and shipping. That power is restricted to making laws applicable to the Commonwealth and operative within the three-mile limit all round the ocean boundary of the Commonwealth. In order to make a Commonwealth law applicable to and operative on ships going from one part of the Commonwealth to another, and in so doing passing over the high seas outside the three mile limit, it was necessary to extend the power given by section 98. This is done by clause 5 of the Act; without which the laws of the Commonwealth would only be operative within the three mile limit. By that clause the laws of the Commonwealth are in force on British ships on the high seas outside the three mile limits if they are on a voyage which both begins and ends within the Commonwealth. (Mr. R. E. O'Connor's speech in the Legislative Council of N.S.W., Parliamentary Debates, 1897, p. 3017. Mr. E. Barton's speech in the Legislative Council, N.S.W., idem., p. 3081.)

BRITISH SHIPS WITHIN THE COMMONWEALTH.—Clause 5 provides that the laws of the Commonwealth shall be in force on all British merchant ships whose first port of clearance and whose port of destination are within the Commonwealth. There are two classes of British ships which come within the meaning of this clause: (1) Intercolonial vessels exclusively engaged in the Australian trade; (2) ocean going vessels arriving on the Australian coast and temporarily staying and engaging in trade between the ports of the Commonwealth; in so doing beginning and completing new voyages. For the purposes of this clause, ships which come within the conditions specified will be considered as within the jurisdiction of the Commonwealth from the beginning to the end of their respective voyages, even though during the course of their voyages they travel across the high seas hundreds or even thousands of miles beyond the limits of the Commonwealth. The first port of clearance of a ship bound by the laws of the Commonwealth must be within the Commonwealth, and its port of destination must be within the Commonwealth. The combination of these two conditions is required; they mark the beginning and end of a continuous voyage. For example, a steamer starts from her headquarters—say Melbourne; thence she proceeds to Tasmania, thence to New Zealand, thence to Samoa, thence to Fiji, thence to New Caledonia, thence to Brisbane, thence to Sydney, thence to Melbourne. During the whole of this voyage the laws of the Commonwealth would be in force in such a vessel. In the course of her journey she would traverse regions far beyond the limits of the Commonwealth; yet by the application and extension of the principle of extra-territoriality—described by some jurists as a fiction, though a very useful one—the ship is deemed to be a part of the Commonwealth floating on the high seas.

If it be asked what kinds of Commonwealth laws could reasonably be brought into operation on board a Commonwealth ship sailing a thousand miles away from Australia, attention may be drawn to those laws relating to shipping and navigation which have hitherto been within the competency of the various Australian legislatures, but which under the Commonwealth will be vested in the Federal Parliament Attention may be also drawn to some of the other powers conferred on the Federal Parliament, such as those relating to trade and commerce, weights and measures, fisheries beyond territorial limits, the service and execution of civil and criminal process, and the enforcement of the judgments of the Courts of the States; also immigration and emigration, influx of criminals, external affairs, the relations of the Commonwealth with the isles of the Pacific, and the naval and military defences of the Commonwealth. It might be extremely advisable, and in fact absolutely necessary, that the laws of the Commonwealth, in reference to matters such as these, should follow a Commonwealth ship and operate upon it wherever it went.

PROPOSED IMPERIAL AMENDMENT.—When the Commonwealth Bill was under the consideration of the Imperial Government in March, 1900, the Law Officers of the Crown

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proposed the omission of the words of Clause 5, “in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.” (See Historical Introduction, p. 229, supra.) It was suggested that there was no constitutional, or practical, necessity for the appearance of those words in the Bill. It seemed to be thought that all that was desired was a grant of power to the Commonwealth to control the coasting trade This power, it was pointed out, the Federal Parliament would have under section 736 of the Merchant Shipping Act, 1894, which is not confined in its operation to the coasting trade while in territorial waters. Moreover, the words, “first port of clearance” and “port of destination” in the clause in question were not free from ambiguity, and embarrassing questions might be raised as to the law applicable to a ship clearing from one Australian port for another after coming to Australia from a port in some other part of Her Majesty's dominions.

In reply to this objection the Australian Delegates drew attention to section 20 of the Federal Council Act, 1885 (see supra). It was observed that the provision of Clause 5 of the Draft Bill was much more restricted than that made by the Act of 1885. Under the present measure the provision was made to apply to cases in which a British ship begins and concludes her voyage within the limits of the Commonwealth. But section 20 of the Federal Council Act applied to every British ship which commenced her voyage in any one of the colonies concerned, and also to every British ship which concluded her voyage in any one of them. In the former case the Federal Council Law would apply to a British ship on the whole of her voyage from Australia to a port beyond the Commonwealth; in the latter case to a British ship on the whole of her voyage from any point beyond the Commonwealth to Australia. In the present measure, so wide an application was not for a moment desired to be given to any law of the Commonwealth; yet it was now sought to further restrict, in the hands of a much more competent legislature, a power which 15 years ago the Imperial Parliament did not consider too wide for a much inferior body: a body neither elective nor bi-cameral, and lacking both a responsible executive and a Treasury. Dealing with the suggestion that the matter was sufficiently provided for by section 736 of the Merchant Shipping Act, 1894, the Delegates argued that if that view were correct then the phrase objected to was at worst a redundancy and therefore harmless. Section 736 gave power to the Legislature of any English possession to make laws regulating its coasting trade under certain conditions. It was true that the term “British Possession,” whether as defined in the Act of 1869 or in the Interpretation Act of 1889, which preceded the present Merchant Shipping Act, would include such a Possession as the Commonwealth of Australia, which under the Interpretation Act would be deemed to be one British Possession including all parts under the Central Legislature. The expression “coasting trade” was not defined in any of the Acts cited; it may be taken to include the trade of vessels plying merely between the ports of a Possession within territorial limits. But the provision in the Commonwealth Bill, to which exception had been taken, would apply to such ships, on a voyage solely between two ports of the Commonwealth, even outside the three-mile territorial limit; the beneficial effect therefore would be, that a vessel on such a voyage would not be exposed to the anomaly of being subject to one set of laws at 2 3/4 miles from the coast, and to another set of laws at 3 1/4 miles from the coast. That this should be prevented was surely not too much to ask. Moreover, the provision in the Bill removed a further anomaly by protecting a vessel which passed from the territorial waters of one colony into those of another from being subjected to a change of laws in that very operation, and by applying to her the uniform laws of the Commonwealth during the whole of her passage between Commonwealth ports. While, then, the power was less than that conceded to the Federal Council, and never abused, it was larger than that conceded by the Merchant Shipping Act, but larger only for the most beneficial purposes. The reasonableness of the right claimed appeared the more clearly when it was considered that one of the most useful purposes of the Constitution was the facilitation of trade between the several colonies to

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an extent not hitherto possible, with a clear tendency towards obliterating in respect of commerce those arbitrary lines between colony and colony, which in the past have been productive of so much friction and hindrance. (House of Com. Pap., May 1900, p. 15.)

The Colonial Secretary, in answer to this contention, admitted that the words of section 20 of the Federal Council Act were very wide, perhaps unduly so, and if the powers thereby conferred had been freely exercised he thought grave difficulties would certainly have arisen. The analogy of the Federal Council Act was, however, in his opinion incomplete, inasmuch as it was contemplated that all British possessions in Australia might be represented in the Federal Council, “whereas the operation of this Bill is at present confined to five Australian colonies.” (See House Coms. Pap., May, 1900, p. 24.)

The Imperial Government, however, did not insist in the proposed omission of the words relating to British ships. Although those words were omitted in the first draft of proposed amendments submitted to the Delegates, they were restored in the Bill as actually introduced in the House of Commons. (See House Coms. Paps., May, 1900, p. 19.)