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Admiralty Courts. There may be thus no direct solidarité, to use a convenient French phrase, between those who are employed in the navigation of a vessel on the high seas and those upon whom the burden of compensation falls, in case the navigation is mismanaged, and a collision takes place with another vessel. The question becomes still more complicated where loss of life ensues, of which several painful instances have occurred of late, in which the magnitude of the calamity has been so appalling, as to awaken a general demand for some legislation on the subject, by which the feeling of personal responsibilty may be brought home to the mariner, and may stimulate him to greater watchfulness and greater care in avoiding all chances of collision with other vessels.
There arises thus for the consideration of Governments the important question of Criminal Jurisdiction in cases of collision, how best it may be exercised, and under what safeguards, where the collision has happened on the high seas. It seems reasonable that states which have formally agreed that certain rules of navigation shall be observed by their respective subjects in navigating the high seas, and which have entrusted to their Courts of Admiralty or to maritime tribunals of equivalent authority within their respective dominions civil jurisdiction, in respect of damage to property resulting from the neglect of those rules, should authorise the same Courts to punish mariners, who transgress those rules and thereby bring about the damage. The measure of punishment, however, in such cases ought not to be regulated by an arbitrary law of the state, before whose tribunal the parties happen to be convened, but by a common law concerted by the same states, which have adopted the revised rules of navigation as the common law of the sea. There is something peculiar to accidents on the sea, something which gives to every collision on the high seas a tinge of misfortune. The navigation of the high seas is in some respects dependent on
the snares of fortune,” to use a phrase familiar to Bracton. That great master of the common law of England, draws a wide distinction between homicide with a purpose and homicide as a result (ex eventu), and according to this distinction homicide is either a felony or a misfortune. Our ancestors seem to have thought that any homicide in former days, which was the result of a collision on the high seas between sailing vessels, where there was no felonious intent on either side, might be properly regarded as homicide by misfortune (homicidium per infortunium). The question in the present day is whether the application of steam-power to ocean navigation has not so altered its conditions, as to warrant us in introducing a more complete theory of personal responsibility where steam vessels have come into collision with one another on the high seas.
The collision between the German steam vessel Franconia and the British steam vessel Strathclyde in the open sea within a marine league of Dover pier has been thought by many persons to establish the necessity of some international concert for the punishment of those, who have transgressed the rules of navigation in cases, where the vessels brought into collision are of different nationalities. The degree of culpability, however, will always be a very delicate question to determine, of which instances are at hand in the loss of H.M. steamship Vanguard by a collision with a consort steamship in a fog, and the loss of the Imperial German steamship Grosser Kurfürst by a collision with a consort steamship in broad daylight. Still such anomalous collisions, although they may bespeak caution, are not dissuasive of all legislation, and the subject is one which is likely to attract every day more attention, if collisions between steamships on the high seas continue to multiply at their present rate.
Since the above observations, or observations to a similar effect, were addressed to the Conference of the Association for the Reform and Codification of the Law of Nations, which met at Frankfort-on-the-Maine in August
last, a collision has occurred on the River Thames between two British steam vessels, the Princess Alice and the Bywell Castle, whereby some hundreds of passengers on board of the former vessel were drowned almost instantaneously. In this case, if negligence in the navigation of either vessel should be established, the culpable party will be liable to punishment according to British law, but collisions of equal gravity may occur on the high seas, where British law is not supreme ratione territorii. An instance of such a collision may be cited in the case of the steamship Camilla and the barque Elizabeth Barnett, in which nearly three hundred and fifty living emigrants disappeared in a moment in the deep waters of the Atlantic Ocean, whilst the steamship hurried onward across the midships of the barque in a dense fog, hardly conscious of a collision, had it not been for the sudden apparition of half-a-dozen strange mariners, who had clambered up her bows, as the steamer passed over the ill-fated sailing vessel. Similar disasters are of frequent occurrence on the high seas, and where the colliding vessels are of one and the same nationality there would be no difficulty in applying the penal provisions of municipal law to cases of culpable non-observance of the international sailing rules. The difficulty arises where the colliding vessels are of different nationalities, and where the vessel that has kept afloat has sought refuge in a foreign port. Such an instance is at hand in the case of the Scotch steamship the City of Manchester and the French steamer Moselle, which came into collision with each other on the broad waters of the Medi. terranean Sea, at the distance of about eight miles from the Spanish coast, on the night of 21st August last, in bright moonlight and in fine weather. The Moselle, in this case, was struck on the port midships, and sank in a few minutes. Two of her crew were drowned, the rest having been picked up some time after the collision by the boats of the City of Manchester, which was obliged, in consequence of the damage
which she had received on her bows, to discontinue her voyage to Calcutta, and to put into the Spanish port of Almeria. It was competent for the owners of the French vessel to have at once arrested the Scotch vessel by Admiralty process in the port of Almeria for the damages incurred by them as the owners of the Moselle, but under the practice of nations, the Admiralty Courts of Spain could not exercise any penal jurisdiction over the crew of either vessel for neglect of the international rules of navigation, although the collision should have been occasioned by neglect of those rules. This is not a satisfactory state of things as regards the navigation of the high seas, and municipal legislation alone, in the absence of an international concert, cannot avail to control even the most glaring cases of neglect. It has been well observed by a leading London journal (Standard, September 14, 1878), that “if it were not that so large a proportion of the traffic of the world is carried on in vessels amenable to English laws, the necessity of some general and severe Criminal Code of Navigation would have been long ere now recognised by all commercial powers.” The same journal also justly remarks—“We cannot but feel the difficulty of creating Courts to which such cases could be referred, without risk of gross injustice on the one hand, and of such acquittals as would scandalise public feeling on the other."
It has been suggested, in an early passage of these observations, that the Admiralty Courts of each country, which exercise at present international jurisdiction in civil suits arising out of cases of collision on the high seas, might properly be empowered by an international concert to exercise criminal jurisdiction in such cases, where some neglect or default in observing the international rules of navigation has been the occasion of the collision. There are, we are aware, difficulties in the way of adopting this suggestion, as the Court of the Admiral, eo nomine, is in many respects an institution on the wane, and in some
countries there are no Admiralty Courts, and no traditions have been preserved of the ancient procedure of the Admiralty. But there is in most ports an international officer, whose jurisdiction, in cases of collision, is a young jurisdiction, the growth of which has been favoured by the daily increasing necessities of international commerce. It is to Consular Courts that, in our opinion, the attention of Governments may be wisely directed with a view to provide a check against the personal impunity which attaches at present to individual negligence in the navigation of steam vessels on the high seas. A scheme for the organization of such Courts must necessarily be of a special character, but it should be borne in mind that the existing Courts of Admiralty exercise in civil suits a jurisdiction which is sui generis, and which is of necessity exceptional to that of the Courts, which administer in each country the law of the land. We are not, we regret to say, in favour of the principle under which the British Parliament has recently extended the operation of the law of England to all foreign vessels navigating the high seas within one marine league of the coast of the United Kingdom or any other part of Her Majesty's dominions (41 & 42 Vict., c. 73). Under the rule of reciprocity, Great Britain must be prepared to concede to other nations the exercise of an analogous jurisdiction in accordance with their own law over British vessels navigating the high seas within a marine league of their respective coasts. Such a result, we venture to think, will not prove acceptable to British shipmasters, nor to British mariners, if there be any weight in the following observations, made alio intuitu, which we extract from the same leading London journal (Standard, September 14, 1878). “If then," it says, "the jurisdiction be entrusted to the Power in the vicinity of whose shores the accident occurred, for once that a foreign culprit is tried in English Courts-confessedly the most just and equitable in the world—ten Englishmen will be brought for trial before