Sec. 2. Territorial character of the ships of a nation. Views of Hautefeuille. the laws of the United States, being wholly owned by citizens, and no others, may be registered as directed in this title."* Vattel says of the territorial character of the vessels of a country, "it is natural to consider the vessels of a nation as parts of its territory, especially when they sail upon a free sea, since the State retains its jurisdiction over those vessels.” 'According to the commonly received custom this jurisdiction is preserved over the vessels even in parts of the sea subject to a foreign dominion."+ Wheaton does not admit that merchant vessels possess the character of territoriality which he says belongs to men-of-war. "They form no part of the neutral territory, and, when within the territory of another State, are not exempt from the local jurisdiction. That part of the ocean which is temporarily occupied by them forms no part of the neutral territory; nor does the vessel itself, which is a movable thing, the property of private individuals, form any part of the territory of that power to whose subjects it belongs. The jurisdiction which that power may lawfully exercise over the vessel on the high seas is a jurisdiction over the persons and property of its citizens; it is not a territorial jurisdiction. Being upon the ocean, it is a place where no particular nation has jurisdiction; and where, consequently, all nations may equally exercise their international rights."‡ The same view is held by M. Ortolan, who confines the character of territoriality to vessels of war exclusively.§ Hautefeuille is in accord with Vattel, for he says: "Sea-going vessels are of two descriptions: those which, belonging to the State, are entrusted with the exercise of the sovereign power and jurisdiction, and consequently with making war, and those which are private property and confined to the commercial operations of the subjects of the State. These two classes of vessels possess territoriality equally and to the same degree. Without doubt there is between these two descriptions of vessels a great difference, but it does not bear on the question of territoriality. Both belong to the nation whose flag they bear, both are subject to the laws of the sovereign, and consequently both *Rev. Stat. U. S., Secs. 4131-32. | Vattel, p. 102. § Ortolan, Vol. I, p. 211. are territorial. It is even indispensable that both should have and maintain this quality, for if one should cease to possess it, the other would at once cease to have over it any right of protection and jurisdiction, since these rights can be exercised only upon the territory."* After an American vessel has been measured and classed by the customs authorities, as directed by the laws of the United States, her register is issued to her, and her registry number assigned her must be carved or otherwise permanently marked on the main beam of the ship, her tonnage is marked on the after beam of the main hatch, and her name and the name of the port where she is owned must be distinctly painted on the stern. Should a vessel at any time cease to have her registry number marked as above, she will not be recognized as a vessel of the United States. Changing the name of a registered vessel without proper authorization will subject her to forfeiture.† For vessels engaged in the coasting trade of the United States an enrollment takes the place of registration, which is necessary only for vessels employed in foreign trade. A form of license is prescribed for vessels employed in the fisheries.‡ Sea-letters, or passports, are to be furnished by the collectors of customs districts to vessels of the United States, and unregistered vessels owned by citizens of the United States, sailing from a port of the United States on a foreign voyage. These passports certify to the national character and ownership of the vessels.§ For the purpose of ascertaining the nature of the voyage upon which a merchant vessel is engaged, her manifest, or list of cargo, and her clearance must be examined. Her bill of health will also be of use in determining this point. A list of the papers required to be carried by the merchant vessels of the principal foreign commercial countries will be found in the appendix to this work. "Foreign-built vessels, purchased and owned by citizens of the United States, are entitled to the protection of the flag as the property of American citizens, but no register, enrollment, license or other marine document prescribed by the laws of the United States can be lawfully issued to them."|| *Hautefeuille, Vol. I, p. 290. ‡ App. 1. IU. S. Consul's Man., p. 273. † Rev. Stat. U. S., Secs. 4177-79. Sec. 5. Treaty stipulations concerning papers. "The privilege of carrying the American flag is under the regulation of Congress, and the statutes have not made that privilege practicably available to any ships except those duly registered or enrolled at some custom-house."* On this point Mr. Cushing, when Attorney-General of the United States, gave the following opinion: "A citizen of the United States has a right to purchase a merchant ship of a belligerent anywhere, at home or abroad, in a belligerent port or a neutral port, or even upon the high seas; the bill of sale is a sufficient authentication of his title. Provided the purchase be bona fide made, and the property be passed absolutely and without reserve, the ship so purchased, though it has not the privilege peculiar to American-built ships, of being registered or enrolled, becomes entitled to bear the flag and receive the protection of the United States."+ Such ships, however, are not allowed to enter ports of the United States; they must be employed exclusively in foreign waters. The opinion of Mr. Cushing was given with special reference to purchases made during a war from either belligerent. Such transfers are looked upon with great suspicion by belligerents always, and perfect frankness and good faith must be observed by both parties to the sale. The French courts do not recognize the sale of vessels to a neutral during war, holding such a transaction to be simply an attempt to escape from the liability to capture. The papers which serve to establish the nationality of vessels are, from their importance, frequently made the subject of treaty stipulations. Hautefeuille says of the capture of neutral vessels and of the papers which should be found on board merchant vessels: "In all cases of doubt, recourse must be had to treaties, if any exist; if there are none, the internal law of the neutral must be applied to the exclusion of that of the belligerent. This principle controls all the questions that can arise as to the seizure of neutral vessels."‡ It is necessary then for the naval officer to be familiar with the agreements, if any, that his government has entered into. *Consular Reg. 1870, Sec. 226. † Lawrence's Wheaton, p. 583, n. Hautefeuille, Vol. II, p. 236. The following treaties of the United States, now in force, prescribe the use of certain papers by the merchant ships of the contracting parties. By the treaty of 1853, with the Argentine Confederation, it is agreed to recognize as vessels of the United States, or of the Argentine Confederation, all those furnished with a regular passport, or sea-letter, by the competent authority under the existing laws of either government.* The treaties with Belgium, 1858; United States of Colombia, 1846; Italy, 1871; Morocco, 1836; Holland, 1839; Turkey, 1862, and Paraguay, 1859, contain similar stipulations. Bolivia, 1858, the Dominican Republic, 1867, and Ecuador, 1839, stipulate that vessels under their flags which are owned by their citizens, and whose captains are citizens of the respective nations, shall be considered as having the national character, although they may have been built in foreign countries and have foreign crews. This stipulation was inserted in the treaties in each case expressly to foster the small merchant marine of those countries. In many treaties it is further stipulated that, in time of war, in which one of the contracting parties is engaged, the ships of the other shall have, in addition to papers establishing their nationality, certificates of their cargoes, or manifests, which must be exhibited to show that no contraband goods are carried. Without such manifests, the ships may be detained and adjudged lawful prize, unless the absence of the papers shall be owing to accident, and be replaced by testimony entirely equivalent. The treaties now in force containing this stipulation are those with Bolivia, 1858; United States of Colombia, 1846; the Dominican Republic, 1867; Ecuador, 1839; Hayti, 1864; Guatemala, 1849; Spain, 1795; Sweden and Norway, 1827; Mexico, 1848, and San Salvador, 1850. The treaty of 1799, with Prussia, revived by that of 1828, stipulates that vessels shall be provided with crew-lists, in addition to the sea-letters and charter parties, or bills of lading; but the possession of these papers shall not be deemed absolutely necessary when vessels have sailed before or within three months of the date at which their government is informed *U. S. Treaties, 1873, Argentine Confederation, p. 27. Sec. 6. False papers. Conceal tion. that the other party is engaged in a war. In the meantime, in default of these specific documents, the neutrality of vessels may be established by such other evidence as the tribunals appointed to judge such cases may deem sufficient.* Among the papers enumerated by Mr. Upton as being necessary to establish the nature of the voyage upon which a merchant vessel is engaged, is "The letter of instructions to the master, with which, especially in times of war, the neutral master should always be provided. These instructions should always be produced. The withholding them has been held a just cause of suspicion, authorizing detention. These letters of instruction or the other papers should always show the alternative destination of a ship, so as to establish the fact that such alternative destination be fair and not fraudulent.”† "The production of false papers has always been held a just ment or spolia- cause of suspicion, justifying seizure, although under some peculiar circumstances it has not been held to be such conclusive proof as warrants condemnation, if the circumstances are clearly explained." "The concealment of papers material for the preservation of the neutral character justifies a capture and carrying into port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs and damages on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause labored under heavy doubts and there was prima facie ground for condemnation independent of the concealment. The spoliation of papers is a still more aggravated and inflamed circumstance of suspicion. That fact may exclude further proof, and be sufficient to infer guilt; but it does not, in England, as it does by the maritime law of other countries, create an absolute presumption juris et de jure; and yet a case that escapes with such a brand upon it is saved so as by fire. The Supreme Court of the United States has followed the less rigorous English rule, and held that the spoliation of papers was not of itself sufficient ground for condemnation, and that it was a circumstance open for explanation, for it may have arisen from accident, necessity, or superior force. If the explanation be not prompt and frank, or be weak *U. S. Treaties, 1873, Prussia, p. 719. † Upton, p. 338. Ibid. p. 339. |