§ 256. Although the Open Sea is free and not the territory of any State, it may nevertheless in its whole extent become the theatre of war, since the region of war is not only the territories of the belligerents, but likewise the Open Sea, provided that one of the belligerents at least is a Power with a maritime flag.[503] Men-of-war of the belligerents may fight a battle in any part of the Open Sea where they meet, and they may capture all enemy merchantmen they meet on the Open Sea. And, further, the jurisdiction and police of the belligerents become through the outbreak of war in so far extended over vessels of other States, that belligerent men-of-war may now visit, search, and capture neutral merchantmen for breach of blockade, contraband, and the like.

However, certain parts of the Open Sea can become neutralised and thereby be excluded from the region of war. Thus, the Black Sea became neutralised in 1856 through article 11 of the Peace Treaty of Paris stipulating:—"La Mer Noire est neutralisée: ouverte à la marine marchande de toutes les nations, ses eaux et ses ports sont formellement et à perpétuité interdites au pavillon de guerre, soit des puissances riveraines, soit de tout autre puissance." Yet this neutralisation of the Black Sea was abolished[504] in 1871 by article 1 of the Treaty of London, and no other part of the Open Sea is at present neutralised.

§ 257. The freedom of the Open Sea involves perfect freedom of navigation for vessels of all nations, whether men-of-war, other public vessels, or merchantmen. It involves, further, absence of compulsory maritime ceremonials on the Open Sea. According to the Law of Nations, no rights whatever of salute exist between vessels meeting on the Open Sea. All so-called maritime ceremonials on the Open Sea[505] are a matter either of courtesy and usage or of special conventions and Municipal Laws of those States under whose flags vessels sail. There is in especial no right of any State to require a salute from foreign merchantmen for its men-of-war.[506]

The freedom of the Open Sea involves likewise freedom of inoffensive passage[507] through the maritime belt for merchantmen of all nations, and also for men-of-war of all nations in so far as the part concerned of the maritime belt forms a part of the highways for international traffic. Without such freedom of passage, navigation on the Open Sea by vessels of all nations would be a physical impossibility.

§ 258. Since no State can exercise protection over vessels that do not sail under its flag, and since every vessel must, in the interest of the order and safety of the Open Sea, sail under the flag of a State, the question has been raised whether not only maritime States but also such States as are not littoral States of the Sea have a claim to a maritime flag. There ought to be no doubt[508] that the freedom of the Open Sea involves a claim of any State to a maritime flag. At present no non-littoral State actually has a maritime flag, and all vessels belonging to subjects of such non-littoral States sail under the flag of a maritime State. But any day might bring a change. The question as to the claim to a maritime flag on the part of a non-littoral State was discussed in Switzerland. When, in 1864, Swiss merchants in Trieste, Smyrna, Hamburg, and St. Petersburg applied to the Swiss Bundesrath for permission to have their vessels sailing under the Swiss flag, the Bundesrath was ready to comply with the request, but the Swiss Parliament, the Bundesversammlung, refused the necessary consent. In 1889 and 1891 new applications of the same kind were made, but Switzerland again refused to have a maritime flag.[509] She had no doubt that she had a claim to such flag, but was aware of the difficulties arising from the fact that, having no seaports of her own, vessels sailing under her flag would in many points have to depend upon the goodwill of the maritime Powers.[510]

Such States as have a maritime flag as a rule have a war flag different from their commercial flag; some States, however, have one and the same flag for both their navy and their mercantile marine. But it must be mentioned that a State can by an international convention be restricted to a mercantile flag only, such State being prevented from having a navy. This is the position of Montenegro[511] according to article 29 of the Treaty of Berlin of 1878.

§ 259. Grotius and many writers who follow[512] him establish two facts as the reason for the freedom of the Open Sea. They maintain, first, that a part of the Open Sea could not effectively be occupied by a Navy and could therefore not be brought under the actual sway of any State. And they assert, secondly, that Nature does not give a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and, therefore, sufficient for all.[513] The last argument has nowadays hardly any value, especially for those who have freed themselves from the fanciful rules of the so-called Law of Nature. And the first argument is now without basis in face of the development of the modern navies, since the number of public vessels which the different States possess at present would enable many a State to occupy effectively one part or another of the Open Sea. The real reason for the freedom of the Open Sea is represented in the motive which led to the attack against maritime sovereignty, and in the purpose for which such attack was made—namely, the freedom of communication, and especially commerce, between the States which are severed by the Sea. The Sea being an international highway which connects distant lands, it is the common conviction that it should not be under the sway of any State whatever. It is in the interest of free intercourse[514] between the States that the principle of the freedom of the Open Sea has become universally recognised and will always be upheld.[515]

IV JURISDICTION ON THE OPEN SEA

Vattel, II. § 80—Hall, § 45—Westlake, I. pp. 166-176—Lawrence, § 100—Halleck, p. 438—Taylor, §§ 262-267—Walker, § 20—Wheaton, § 106—Moore, II. §§ 309-310—Bluntschli, §§ 317-352—Heffter, §§ 78-80—Stoerk in Holtzendorff, II. pp. 518-550—Liszt, § 26—Bonfils, Nos. 578-580, 597-613—Despagnet, Nos. 422-430—Mérignhac, II. pp. 505-511—Pradier-Fodéré, V. Nos. 2376-2470—Rivier, I. § 18—Nys, II. pp. 139-165—Calvo, I. §§ 385-473—Fiore, II. Nos. 730-742, and Code, Nos. 1001-1027—Martens, II. §§ 55-56—Perels, § 12—Testa, pp. 98-112—Ortolan, "Diplomatie de la mer" (1856), II. 254-326—Hall, "Foreign Powers and Jurisdiction of the British Crown" (1894), §§ 106-109.

§ 260. Jurisdiction on the Open Sea is in the main connected with the maritime flag under which vessels sail. This is the consequence of the fact stated above[516] that a certain legal order is created on the Open Sea through the co-operation of rules of the Law of Nations with rules of the Municipal Laws of such States as possess a maritime flag. But two points must be emphasised. The one is that this jurisdiction is not jurisdiction over the Open Sea as such, but only over vessels, persons, and goods on the Open Sea. And the other is that jurisdiction on the Open Sea is, although mainly, not exclusively connected with the flag under which vessels sail, because men-of-war of all nations have, as will be seen,[517] certain powers over merchantmen of all nations. The points which must therefore be here discussed singly are—the claim of vessels to sail under a certain flag, ship-papers, the names of vessels, the connection of vessels with the territory of the flag State, the safety of traffic on the Open Sea, the powers of men-of-war over merchantmen of all nations, and, lastly, shipwreck.

§ 261. The Law of Nations does not include any rules regarding the claim of vessels to sail under a certain maritime flag, but imposes the duty upon every State having a maritime flag to stipulate by its own Municipal Laws the conditions to be fulfilled by those vessels which wish to sail under its flag. In the interest of order on the Open Sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the Open Sea is freedom for such vessels only as sail under the flag of a State. But a State is absolutely independent in framing the rules concerning the claim of vessels to its flag. It can in especial authorise such vessels to sail under its flag as are the property of foreign subjects; but such foreign vessels sailing under its flag fall thereby under its jurisdiction. The different States have made different rules concerning the sailing of vessels under their flags.[518] Some, as Great Britain[519] and Germany, allow only such vessels to sail under their flags as are the exclusive property of their citizens or of corporations established on their territory. Others, as Argentina, admit vessels which are the property of foreigners. Others again, as France, admit vessels which are in part the property of French citizens.[520]

But no State can allow such vessel to sail under its flag as already sails under the flag of another State. Just as a vessel not sailing under the flag of a State, so a vessel sailing under the flags of two different States does not enjoy any protection whatever. Nor is protection enjoyed by such vessel as sails under the flag of a State which, like Switzerland, has no maritime flag. Vessels belonging to persons who are subjects of States without a maritime flag must obtain authority to sail under some other State's flag, if they wish to enjoy protection on the Open Sea. And any vessel, although the property of foreigners, which sails without authority under the flag of a State, may be captured by the men-of-war of such State, prosecuted, punished, and confiscated.[521]

§ 262. All States with a maritime flag are by the Law of Nations obliged to make private vessels sailing under their flags carry on board so-called ship papers, which serve the purpose of identification on the Open Sea. But neither the number nor the kind of such papers is prescribed by International Law, and the Municipal Laws of the different States differ much on this subject.[522] But, on the other hand, they agree as to the following papers:—

(1) An official voucher authorising the vessel to sail under its flag. This voucher consists of a Certificate of Registry, in case the flag State possesses, like Great Britain and Germany for instance, a register of its mercantile marine; in other cases the voucher consists of a "Passport," "Sea-letter," "Sea-brief," or of some other document serving the purpose of showing the vessel's nationality.

(2) The Muster Roll. This is a list of all the members of the crew, their nationality, and the like.

(3) The Log Book. This is a full record of the voyage, with all nautical details.

(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with details concerning the number and the mark of each package, the names of the shippers and the consignees, and the like.

(5) The Bills of Lading. These are duplicates of the documents which the master of the vessel hands over to the shipper of the goods at shipment.

(6) The Charter Party, if the vessel is chartered. This is the contract between the owner of the ship, who lets it wholly or in part, and the charterer, the person who hires it.

§ 263. Every State must register the names of all private vessels sailing under its flag, and it must make them bear their names visibly, so that every vessel may be identified from a distance. No vessel must be allowed to change her name without permission and fresh registration.[523]

§ 264. It is a customary rule of the Law of Nations that men-of-war and other public vessels of any State are, whilst on the Open Sea as well as in foreign territorial waters, in every point considered as though they were floating parts of their home States.[524] Private vessels are only considered as though they were floating portions of the flag State in so far as they remain whilst on the Open Sea in principle under the exclusive jurisdiction of the flag State. Thus the birth of a child, a will or business contract made, a crime[525] committed on board ship, and the like, are considered as happening on the territory and therefore under the territorial supremacy of the flag[526] State. But although they appear in this respect as though they were, private vessels are in fact not floating portions of the flag State. For in time of war belligerent men-of-war can visit, search, and capture neutral private vessels on the Open Sea for breach of blockade, contraband, and the like, and in time of peace men-of-war of all nations have certain powers[527] over merchantmen of all nations.

§ 265. No rules of the Law of Nations exist as yet[528] for the purpose of preventing collisions, saving lives after collisions, and the like, but every State possessing a maritime flag has legislated for the conduct on the Open Sea of vessels sailing under its flag concerning signalling, piloting, courses, collisions, and the like. Although every State can legislate on these matters independently of other States, more and more corresponding rules have been put into force by all the States during the second half of the nineteenth century, following the lead given by Great Britain through section 25 of the Merchant Shipping Act Amendment Act of 1862, the "Regulations for preventing Collisions at Sea" which accompany this Act, and, further, Sections 16 to 20 of the Merchant Shipping Act, 1873.[529] And the "Commercial Code of Signals for the Use of all Nations," published by Great Britain in 1857, has been adopted by all maritime States. In 1889 a maritime Conference took place at Washington, at which eighteen maritime States were represented and which recommended a body of rules for preventing collisions at sea to be adopted by the single States,[530] and a revision of the Code of Signals. These regulations were revised in 1890 by a British Committee appointed by the Board of Trade,[531] and, after some direct negotiations between the Governments, most maritime States have made corresponding regulations by their Municipal Laws.[532] And a new and revised edition of "The International Code of Signals" was published by the British Board of Trade, in conformity with arrangements with other maritime Powers, in 1900, and is now in general use.[533]

The question of jurisdiction in actions for damages for collision at sea is not at all settled.[534] That the damaged innocent vessel can bring an action against the guilty ship in the Courts of the latter's flag State is beyond doubt since jurisdiction on the Open Sea follows the flag. If the rule that all vessels while on the Open Sea are considered under the sway of their flag State were one without exception, no other State would claim jurisdiction in cases of collision but the flag State of the guilty ship. Yet the practice of the maritime States[535] goes far beyond this, without, however, being uniform. Thus, for instance, France[536] claims jurisdiction if the damaged ship is French, although the guilty ship may be foreign, and also in the event of both ships being foreign in case both consent, or for urgent measures having a provisionary character, or in case France is a place of payment. Thus, further, Italy[537] claims jurisdiction even if both ships are foreign in case an Italian port is the port nearest to the collision, or in case the damaged ship was forced by the collision to remain in an Italian port. Great Britain goes farthest, for the Admiralty Court claims jurisdiction provided the guilty ship is in a British port at the time the action for damages is brought, even if the collision took place between two foreign ships anywhere on the High Seas.[538] And the Admiralty Court justifies this extended claim of jurisdiction[539] by maintaining that collision is a matter of communis juris, and can therefore be adjudicated upon by the Courts[540] of all maritime States.[541]

§ 266. Although the freedom of the Open Sea and the fact that vessels on the Open Sea remain under the jurisdiction of the flag State exclude as a rule the exercise of any State's authority over foreign vessels, there are certain exceptions in the interest of all maritime nations. These exceptions are the following:—

(2) Verification of Flag. It is a universally recognised customary rule of International Law that men-of-war of all nations have, to maintain the safety of the Open Sea against piracy, the power to require suspicious private vessels on the Open Sea to show their flag.[542] But such vessels must be suspicious, and, since a vessel may be a pirate although she shows a flag, she may eventually be stopped and visited for the purpose of inspecting her papers and thereby verifying the flag. It is, however, quite obvious that this power of men-of-war must not be abused, and that the home State is responsible for damages in case a man-of-war stops and visits a foreign merchantman without sufficient ground of suspicion. The right of every State to punish piracy on the Open Sea will be treated below, §§ 272-280.

(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 passes into the maritime belt of a foreign State.[543]

(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 assumes 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 assumption 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."