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constitute a free highway for navigation to the nations and people residing on their borders, and are not a free highway to other nations and people, except there be free access to those seas by open waters or by conventional arrangements.' The domain, in absence of conventional agreement, is proportional to the extent of the shore line, while jurisdiction for many purposes may be concurrent, extending over the whole water area.40

FISHERIES.

41. (a) Fishing in the open sea is free to all, though sometimes regulated by treaties or domestic laws binding those subject to them.

(b) A state may control or forbid fishing within its maritime or fluvial domain.

(a) While fishing on the open sea is free to all, it has often been deemed advisable to make agreements for the good of all as to the manner, time, amount, etc., of fishing. In the time of Elizabeth the use of waters for fishing was assimilated to the use of waters for navigation.** 41 Claims to exclusive fishing rights beyond the marine league, in the open sea, have in general been abandoned, though not in waters within what may be classed as inclosed gulfs, bays, etc., even though the opening to the sea is more than ten miles in width.

The question of the rights of the United States over waters in the Bering Sea was raised in the Fur Seal Arbitration in 1893:

38 United States v. Rogers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071; Treaty of Washington, 1871, art. XXXIII.

39 Weber v. Harbor Commissioners, 18 Wall. 57, 21 L. Ed. 798; Illinois Central Railroad v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018.

40 In the case of United States v. Rogers it was declared that "the courts of the United States have jurisdiction, under section 5346 of the Revised Statutes [U. S. Comp. St. 1901, p. 3630], to try a person for an assault, with a dangerous weapon, committed on a vessel belonging to a citizen of the United States, when such vessel is in the Detroit river, out of the jurisdiction of any particular state, and within the territorial limits of the Dominion of Canada." 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071. See, also, 1 Moore, §§ 135-143. 411 Phillimore, p. 266.

"5. Has the United States any right, and, if so, what right, of protection or property in the fur seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary three-mile limit?"

The opinion of the arbitrators was: "As to the fifth of the said five points, we, the said Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said arbitrators, do decide and determine that the United States has not any right of protection or property in the fur seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary three-mile limit."

The jurisdiction over the pearl fisheries off Ceylon to a considerable distance beyond the three-mile limit was based, according to the British contention in the Fur Seal Arbitration, upon "claim to the products of certain submerged portions of land which have been treated from time immemorial by the successive rulers of the island as subjects of property and jurisdiction."

The many questions in regard to fishing in the open sea have ordinarily arisen in consequence of treaty provisions existing among states. This is seen in such conventions as that of North Sea Fisheries of May 6, 1882; Convention Concerning the Regulation of the Liquor Traffic among the Fishermen in the North Sea, November 16, 1887; Convention of London in Regard to Fisheries around Faröe Islands, etc., June 24, 1901.42

In general, however, fishing on the high sea is free to all. Citizens of a state are, of course, bound by treaties and local laws of that state, which may prohibit or limit to some extent their exercise of the general right.

(b) Within its maritime or fluvial domain a state may con

42 On July 19, 1906, in the case of Mortensen v. Peters, High Court of Justiciary of Scotland, it was maintained that domestic legislation extended to the regulation of fishing in Moray Firth, even though the opening toward the sea might be more than ten miles wide. This decision has been criticised on various grounds. See "The Recent Controversy as to the British Jurisdiction over Foreign Fishermen More than Three Miles from Shore," C. N. Gregory, 1 Amer. Pol. Sci. Rev. p. 410.

trol fishing. A state may grant to other states rights in its coast fisheries, and these may become, as in the case of the Northeastern or Canadian Fisheries, fruitful sources of international differences.43

VESSELS.

42. The jurisdiction over vessels depends:

(a) On the character of the vessel, as public or private. (b) On place in which the vessel is, as in port, on the high

seas.

(c) On the nationality of the vessel.

Closely related to the exercise of maritime jurisdiction is the exercise of jurisdiction over the vessels which are upon the water. It is necessary that a vessel be under some jurisdiction, even on the high seas; for many of the acts which are prohibited on land may take place on a vessel at sea. A theft or assault on a vessel at sea would not be unlike a similar offense on land. Unless there were established rules for the exercise of jurisdiction, complications might arise if on a British vessel an American sailor should assault a French traveler.

(a) Public vessels are those engaged in service of the state and under command of government officers. As such they are under the direct government contro!, and for their acts the government is liable.

Private vessels are only indirectly under government control, and for their acts the government is only indirectly liable.

Certain vessels are regarded as semi-public when engaged in service which is of value to all states, as postal vessels and exploring expeditions. Provisions for the treatment of such vessels are usually made in treaties.

(b) A state has exclusive jurisdiction over its public and private vessels in all places outside the jurisdiction of a foreign state.**

43 1 Moore, §§ 163-168. For Newfoundland Acts 1906 and Modus Vivendi October 6-8, 1906, see 1 A. J. I. Official Documents, pp. 22-31.

44 Wilson v. McNamee, 102 U. S. 572, 26 L. Ed. 234; United States v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071.

A public vessel within the jurisdiction of a foreign state is in general subject only to local port regulations. The exemption from local jurisdiction in a foreign port extends not merely to the ship itself, but to the boats, rafts, etc., belonging to the ship and engaged in its service.45

Asylum on board public vessels in a foreign port is sometimes granted, though such action is less frequent than formerly. On unquestioned grounds of humanity it may be and is granted, as in less civilized regions to those fleeing from slavery, or to those who in time of political uprising flee to the vessel, pursued by irresponsible parties. The commander of the vessel is in all cases responsible to his government for his action; and, if he refuses to release a refugee at the request of the local authorities, resort must be had to the ordinary diplomatic processes. The local state is at liberty to regard such action as an interference with its legitimate exercise of jurisdiction, and may even request the vessel to leave.47

It is generally admitted that merchant vessels cannot grant asylum, and that passengers in transit, accused of committing crime in a state, are liable to local jurisdiction while within ports of that state.48

45 The Santissima Trinidad, 7 Wheat. 283, 5 L. Ed. 454.

46 "The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but, even in the waters of such countries, officers should refuse all applications for asylum, except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly nor indirectly invite refugees to accept asylum." United States Navy Regulations of 1905, No. 308.

47 For discussion as to asylum to political refugees in Brazil, 1894, Foreign Relations U. S., 1894, pp. 65 seq., 514 seq.

48 "If it were generally understood that the masters of American merchantmen are to permit the orderly operation of the law in ports of call, as regards persons on board accused of crime committed in the country to which the port pertains, it is probable on the one hand that occasions of arrest would be less often invited by the act of the accused in taking passage with a view to securing supposed asylum, and on the other hand that the regular resort to justice would replace the reckless and offensive resort to arbitrary force against an unarmed ship, which, when threatened or committed, has in more than one instance constrained urgent remonstrance on the

Though a state may admit foreign merchant vessels to its ports, it does not thereby waive the right to exercise over these vessels such jurisdiction as it may deem expedient. Secretary Bayard in 1885 said:

"It may be safely affirmed that, when a merchant vessel of one country visits the ports of another for the purposes of trade, it owes temporary allegiance and is amenable to the jurisdiction of that country, and is subject to the laws which govern the port it visits so long as it remains, unless it is otherwise provided by treaty.

"Any exemption or immunity from local jurisdiction must be derived from the consent of that country." 49

In case of offenses committed on board a foreign vessel in a port, the French usage has steadily grown in favor. The French usage is, unless local interference is requested, to leave to the authorities of the state whose flag the merchant vessel flies action as to offenses which concern the discipline of the vessel itself and as to offenses which do not disturb the peace of the port.50 Acts committed by or against parties who do not belong to the vessel, or acts which disturb the peace of the port, may be cognized by the local authorities. Article XIII of the Treaty between the United States and the German Empire, December 11, 1871, embodies these principles:

"Consuls general, consuls, vice consuls or consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall have the exclusive power to take cognizance of and to determine differences of every kind which may arise, either at sea, or in port, between captains, officers and crews, and specially in reference to wages. and the execution of mutual contracts. Neither any court or authority, shall, on any pretext, interfere in these differences except in cases where the differences on board ship are of a nature to disturb the peace and public order in port, or on

part of this government." Secretary Gresham to President of Pacific Mail Steamship Co., Dec. 30, 1893, Foreign Relations U. S. 1894, p. 297; 2 Moore, § 307.

49 Foreign Relations U. S., 1885, p. 82.

50 Bonfils, De la Compétence de Tribunaux Français, No. 326; XVI Annuaire de l'Institut de Droit International, p. 231.

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