CHAPTER VII. OF NAVIGATION, AND THEREIN OF CONSERVANCY. The Right of Navigation. Definition. THE right of navigation is a right of way exercised for the purposes of trade and commerce, which may be enjoyed in the sea, in public and in private waters; and as such it includes all rights necessary for the full enjoyment and exercise of the rights of convenient passage, and of commerce, such as the right to pass, and to ground, and to anchor, to remain for a reasonable time for the purposes of loading and unloading, or for a wind.1 The consideration of this right involves not only the discussion of the nature of the right itself, but also that of the rules governing its exercise. These, in the case of the sea, embrace (in addition to the mere rules of the road) matters of considerable extent and importance, such as the seaworthiness of vessels, the liability of ship owners, and the management of lighthouses, harbours, and ports, all of which are regulated by the merchant shipping laws, as well as the various questions arising in connection with the jurisdiction of the Court of Admiralty.2 It would be manifestly as impossible as inappropriate to attempt to treat this subject at all exhaustively in a Work like the present; but as, on the other hand, the Authors feel that it is equally unadvisable to omit all notice of it, 1 Orr Ewing v. Colquhoun, 2 App. C. 839; Gann v. Free Fishers of Whitstable, 11 H. L. 192; Foreman v. Free Fishers of Whitstable, L. R., 4 H. L. 266; Mayor of Colchester v. Brooke, 7 Q. B. 339; Rex v. Russell, 6 B. & C. 566; Original Hartlepool Collieries v. Gibb, 5 Ch. D. 713; Dimes v. Petley, 15 Q. B. 276; Anon., Durham Assizes, 1808, per Wood, B. 2 The reader is referred for a full consideration of these subjects to Maude & Pollock's Law of Merchant Shipping; Williams & Bruce's Admiralty Practice; and Boyd's Merchant Shipping Laws. they have endeavoured to give in the present Chapter a brief general view of the law regarding navigation I. In the sea. II. In inland waters. In the Sea.1 The sea is the necessary highway of all nations, and The sea is the the free navigation and commerce thereon is, therefore, all nations. highway of the common right of all mankind.3 The ships of all nations, whilst navigating the high Jurisdiction over ships seas, are subject only to the laws of their own country, navigating. and no one nation has the right to exercise civil or criminal jurisdiction over the ships of other nations during their passage between one foreign port and another. By 41 & 42 Vict. c. 73, foreigners on board foreign ships, passing within three nautical miles of the English coast, are made subject to English criminal law. The criminal jurisdiction over English ships on the high seas has, from the earliest times, been vested in the Court of Admiralty; and foreigners on board such ships are subject to English law. By 15 Ric. II. c. 3, it was provided, that the admiral should have no jurisdiction within the body of counties, either by sea or land, save for mayhem or murder done in estuaries and mouths of rivers, below the bridges where he should have a concurrent jurisdiction with the Courts of 1 For the greater portion of this section, the authors have had recourse to Mr. A. C. Boyd's excellent work on The Merchant Shipping Laws (1876), to which the reader is referred for fuller particulars. Cf. also throughout Chapter I. 2 Phillimore's International Law, vol. i. pp. 210, 211. 3 Wheaton's International Law, by Boyd, p. 251. For definition of the high seas, and the limitations of territorial waters, see Chap. I. Territorial waters, as well as the high seas, are free to the peaceful naviga tion of foreign as well as Eng- 5 Reg. v. Keyn, 2 Ex. D. 217, See ante, Chap. I. p. 8; and Reg. v. Sattler, Dears. & B. Pirates. Tolls. 66 Common law. This jurisdiction of the admiral was transferred to the Central Criminal Court by 4 & 5 Will. IV. c. 36, and further changes have been made in the present reign as to the civil jurisdiction of the Admiralty Courts, which are thus stated by Mr. Boyd in "The Merchant Shipping Laws":1-"By 3 & 4 Vict. c. 65, s. 6, jurisdiction was given to the Admiralty Court to decide "all claims and demands whatsoever in the nature of " damage received by any ship or sea-going vessel, and to "enforce the payment thereof, whether such ship or vessel may have been within the body of a county, or upon "the high seas, at the time when the damage was re"ceived, in respect of which such claim was made. And "The Admiralty Court Act, 1861 (24 Vict. c. 10, s. 7) "enacts in general terms, that the Court shall have juris"diction over any claim for damage done by any ship. "The Court was therefore empowered to try any cause "whatsoever, of such a description, even if all the parties "to it were foreigners, and the cause of action arose out "of the jurisdiction. However, in deciding causes of the "latter kind, the Court must be guided by the rules of "law to which both parties were subject when the damage was committed, and not by the Merchant Shipping "Acts." 2 Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, may be lawfully captured on the high sea by the armed vessels of any particular State, and brought within its territorial jurisdiction for trial at its tribunals.3 No tolls are demandable from vessels navigating the 1 Page 262. See also for the origin and jurisdiction of the Admiralty Court, Williams' & Bruce's Admiralty Practice. 2 "It is a general rule in con"struing Acts of Parliament, that "the legislature must be presumed "to have intended by its enact"ments to regulate the rights "which should subsist between its "own subjects, and not to affect "the rights of foreigners, un"less the contrary be expressed "or implied from the absolute ne"cessity of the case;" Boyd, Merchant Shipping Laws, p. 262. 3 Wheaton, International Law, p. 168, and ante, Chap. I. sea, save such as are chargeable for the formation of harbours, and the maintenance of buoys, lights, and beacons, which are a good consideration for a toll;"It being re"quired," says Hale, "that any man who will prescribe "for a toll on the sea must allege a good consideration." Hence no tolls can be taken for anchorage save in a port or harbour.3 The main ocean is incapable of being the property of any one State; but a nation may acquire exclusive right of navigation therein as against another nation by virtue of the specific provisions of a treaty, or by the tacit acquiescence of such other nation in its appropriation of certain portions for navigation. Similarly, though the soil of the bed of the sea cannot be the exclusive property of one nation, the beneficial occupation thereof for a sufficient time by any one nation may give a prescriptive right to such portion by the tacit consent of other nations; for the uninterrupted possession of territory or other property for a certain time by a State excludes the claim of every other. Also, when the sea or the bed thereof can be physically occupied permanently by erections, it may be the subject of occupation; and hence, piers, harbours and breakwaters become, in such cases, permissible, and, being for the benefit of navigation, are readily acquiesced in." 8 harbours. A harbour or haven is a place naturally or artificially Ports and made for the safe riding of ships. A port is a haven, and something more, it is a harbour where customs officers are established, and where goods are either imported or exported to foreign countries, and comprehends 1 Hale de Portibus Maris, Harg. Tr.51; Gann v. Free Fishers of Whitstable, 11 H. L. 193. 2 1 Mod. 105. 3 Gann v. Free Fishers of Whitstable, supra. See on this subject, ante, Chap. I. p. 45, and post, Chap. IX. 4 Phillimore, International Law, vol. 1, pp. 210, 211. 5 Vattel, Droit des Gens, t. 1, c. xxiii. • Wheaton's International Law, by Boyd, p. 220. 7 Cockburn, C. J., Reg. v. Keyn, 8 Hale de Portibus Maris, c. 2. a city or borough, called caput portûs, with a market and accommodation for sailors.1 In virtue of its prerogative, the Crown is conservator of all ports and havens, creeks and arms of the sea, and protector of the navigation thereof, and may grant to a subject the right to erect a port on his own land or on the land of another, provided, in the latter case, no vested interests are interfered with.3 The ports of this country are now, however, almost exclusively the property of corporate bodies by ancient grant or charter from the Crown, or by Act of Parliament, by which the powers and duties of the trustees and the public in each particular port are regulated. 10 & 11 Vict. c. 27 (The Harbours, Docks, and Piers Clauses Act, 1847), consolidated the provisions usually embodied in local Acts for the construction of harbours and piers; and by 24 & 25 Vict. c. 45, the Board of Trade may make provisional orders authorizing the erection of such works; while 25 & 26 Vict. c. 69 transferred to that body various duties and powers relative to harbours and navigation which were formerly vested in the Admiralty. The Public Works Loan Commissioners are authorized by sect. 9, Schedule 1, of 38 & 39 Vict. c. 89, to make loans to any person authorized, for the purpose of the construction and improvement of docks, harbours, and piers, under The Harbours and Passing Tolls Act, 1861.5 By 40 & 41 Vict. c. 16, s. 4, harbour and conservancy |