Page 82 - Law of Peace, Volume ,

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the country." . . . And the English judges have uniformly recognized tends it, that fixes the nature of the crime, but the act, itself. If that is of
the rights of the courts of the country of which the port is part to punish a character to awaken public interest when it becomes known, it is a
crimes committed by one foreigner on another in a foreign merchant "disorder," the nature of which is to affect the community at large, and
ship. Regina v. Cmningham, Bell, Cr.Cas. 72; S.C. 8 Cox, Crim.Cas. consequently to invoke the power of the local government whose people
104; Regina v. Anderson, 11 Cox, Crim.Cas. 198, 204; S.C.L.R. 1 have been disturbed by what wasdone. The very nature of such an act is
Cr.Cas. 161, 165; Regina v. Keyn, 13 Cox, Crirn.Cas. 403,486, 525; to disturb the quiet of a peaceful community, and to create, in the
S.C. 2 Exch.Div. 63, 161, 21 3. As the owner has voluntarily taken his language of the treaty, a "disorder" which will "disturb tranquillity and
vessel, for his own private purposes, to a place within the dominion of a public order on shore or in the port." The principle which governs the
government other than his own, and from which he seeks protection whole matter is this: Disorders which disturb only the peace of the ship
during his stay, he owes'that government such allegiance, for the time or those on board are to be dealt with exclusively by the sovereignty of
being, as is due for the protection to which he becomes entitled. the home of the ship, but those which disturb the public peace may be
From experience, however, it was found long ago that it would be suppressed, and, if need be, the offenders punished, by the proper
beneficial to commerce if the local government would abstain from in- authorities of the local jurisdiction. It may not be easy at all times to
terfering with the internal discipline of the ship, and the general regula- determine to which of the two jurisdictions a particular act of disorder
tion of the rights and duties of the officers and crew towards the vessel, belongs. Much will undoubtedly depend on the attending circumstances
or among themselves. And so by comity it came to be generally under- of the particular case, but all must concede that felonious homicide is a
stood among civilized nations that all matters of discipline, and all things subject for the local jurisdiction; and that, if the proper authorities are
done on board, which affected only the vessel, or those belonging to proceeding with the case in a regular way the consul has no right to in-
her, and did not involve the peace or dignity of the country, or the tran- terfere to prevent it. . . .
quillity of the port, should be left by the local government to be dealt ....
with by the authorities of the nation to which the vessel belonged as the The judgment of the circuit court is aff~rmed.
laws of that nation, or the interests of its commerce should require. But,
if crimes are committed on board of a character to disturb the peace and As the Chief Justice indicated in Wildenhus' Case, states
tranquillity of the country to which the vessel has been brought, the of- customarily resort to international agreements in order to
fenders have never, by comity or usage, been entitled to any exemption reconcile potential conflicts of jurisdiction that might arise
from the operation of the local laws for their punishment, if the local tri- from the presence of merchantmen in foreign ports. 170
bunals see fit to assert their authority. Such beimg the general public law The Consular Convention of 1951 between the United
on this subject, treaties and conventions have been entered into by na-
tions having commercial intercourse, the purpose of which was to settle States and the United Kingdom provides in Article 22(2) :
and defme the rights and duties of the contracting parties with respect to Without prejudice to the right of the administrative and judicial
each other in these particulars, and thus prevent the inconvenience that authorities of the territory to take cognizance of crimes or offenses com-
might arise from attempts to exercise conflicting jurisdictions. mitted on board the vessel when she is in the ports or in the territorial
. . . . waters of the territory and which are cognizable under the local law or to
[The Court then analyzed a number of treaties subsequently entered enforce local laws applicable to vessels in ports and territorial waters or
into by the United States, and concluded that these treaties either im- persons and property thereon, it is the common intention of the High
pliedly, or as in the case of the Belgian treaty under consideration ex- Contracting Parties that the administrative and police authorities of the
plicitly] gave the consuls authority to cause proper order to be main- territory should not, except at the request or with the consent of the
tained on board, and to decide disputes between the officers and crew, consular officer,
but allowed the local authorities to interfere if the disorders taking place (a) concern themselves with any matter taking place on board the
on board were of such a nature as to disturb the public tranquillity, and vessel unless for the preservation of peace and order or in the interests
that is substantially all there is in the convention with Belgium which we of public health or safety, or
have now to consider. This treaty is the law which now governs the con- (b) institute prosecutions in respect of crimes or offenses commit-
duct of the United States and Belgium towards each other in this particu- ted on board the vessel unlessthey are of a serious character or involve
lar. Each nation has granted to the other such local jurisdiction within its the tranquillity of the port or unless they are committed by or against
own dominion as may be necessary to maintain order on board a persons other than the crew. 171
merchant vessel, but has reserved to inself the right to interfere if the It may be doubted whether in the absence of a concession by treaty,
disorder on board is of a nature to disturb the public tranquillity. the territorial sovereign is deterred by the operation of any rule of inter-
. . . [T]he only important question left for our determination is national law from exercising through its local courts jurisdiction over
whether the thing which has been done--the disorder that has arisen- civil controversies between masters and members of a crew, when the
on board this vessel is of a nature to disturb the public peace, or, as judicial aid of its tribunals is invoked by the latter, and notably when a
some writers term it, the "public repose," of the people who look to the libel in rem is fded against the ship. It is to be observed, however, that ;
state of New Jersey for their protection. If the thing done-"the dis- American courts exercise discretion in taking or withholding jurisdiction
order," as it is called in the treaty-4s of a character to affect those on
shore or in the port when it becomes known, the fact that only those on 170. The British view regarding the exercise of jurisdiction in a
the ship saw it when it was done, is a matter of no moment. Those who foreign port is that "the subjection of the ship to the local criminal juris-
are not on the vessel pay no special attention to the mere disputes or diction is . . . complete and that any derogation from it is a matter of
quarrels of the seamen while on board, whether they occur under deck comity in the discretion of the coastal state." J. Brierly, The Law of Na-
or above. Neither do they, as a rule, care for anything done on board tions 223 (6th ed. Waldock 1963). When the United States prohibition
which relates only to the discipline of the ship, or to the preservation of laws were held in Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct.
order and authority. Not so, however, with crimes which from their gra- 504, 67 L.Ed. 894 (1923) to be applicable to foreign vessels temporarily
vity awaken a public interest as soon as they become known, and in United States ports, the protests of foreign governments were based
especially those of a character which every civilized nation considers it- almost entirely on appeals to comity. P. Jessup, The Law of Territorial
self bound to provide a severe punishment for when committed within Waters and Maritime Jurisdiction 221-28 (1927). For general discus-
its own jurisdiction. In such cases inquiry is certain to be instituted at sions of criminal jurisdiction over visiting foreign vessels, see id at
once to ascertain how or why the thing was done, and the popular ex- 144-94; R. Stanger, Criminal Jurisdiction Over Visiting Armed Forces, 1
citement rises or falls as the news spreads, and the facts become known. [1957-581 Naval War College International Law Studies, 43-54.
It is not alone the publicity of the act, or the noise and clamor which at- 171. 3 U.S.T. 3426, T.I.A.S. 2494, 165 U.N.T.S. 121.