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War of 1812 as that treaty was silent upon the subject. The United States declared “they were not annulled by the war as they were enjoyed by the colonists before the separation from England in 1783, and so existed perpetually independent of treaty.”
This claim was adjusted by the Treaty of 1818, which gave to the United States permission to take fish on certain parts of the coast of Newfoundland and Labrador, to dry and cure fish in certain inlets, and to enter other inlets for shelter, repairs, and supplies.
Disputes arising under this treaty were settled by the Treaty of 1854, which gave to Canadian fishermen certain rights of fishing along the eastern coast of the United States north of the thirty-sixth parallel of latitude.
The United States took action to terminate this treaty in accord with its terms in 1866. The conditions of the Treaty of 1818 revived.
The Treaty of Washington, 1871, practically reëstablishes the provisions of the Treaty of 1854, specifying that the difference in value between the rights granted by each state to the other should be determined by a commission. This commission awarded $5,500,000 to Great Britain in 1877.1
In accord with the provisions of the Treaty of 1871, it was terminated by the United States in 1886, the provisions of the Treaty of 1818 again coming in force.
A law of March 3, 1897,2 provides that the President may in certain contingencies deny vessels of the British Dominions of North America entry into the waters of the United States, and may also prohibit the importation of fish and other goods.1
1 See Cushing's “ Treaty of Washington.” 2 24 U. S. Sts. at Large, 475.
(c) Another question which has given rise to much discussion is that of the seal-fishing in Bering Sea.
In 1821 Russia claimed that the Pacific north of latitude 51° was mare clausum. The United States and Great Britain denied this claim. By conventions, 1824 and 1825, Russia conceded to these nations rights of navigation, fishing, etc. After the United States in 1867 acquired Russian America, seal-fishing assumed importance. As the Canadian fishermen were not restrained by the laws binding the United States fishermen, it was feared that the seal would become extinct. In 1886 three Canadian schooners were by decree of the district court of Sitka confiscated for the violation of the laws of the United States in regard to seal-fishing, the judge charging the jury that the territorial waters of Alaska embraced the area bounded by the limits named in the treaty of cession to the United States of 1867 as those “ within which the territories and dominion conveyed are contained.”2 This act with others of similar character led to a formal protest by Great Britain.
The questions in dispute were referred to a court of arbitration which decided against the claims of the United States, denying that the sea referred to as the Bering Sea was mare clausum, and denying that the United States acquired jurisdiction by prescriptive right from Russia in 1867. It was also decided that the United States had no right of property in the seals in the open sea, and that the destruction of these animals was contrary to the laws of nature. The
1 See Whart., $S 301308. Treaties of U. S., 940.
United States and Great Britain, however, entered into an agreement in regard to the protection and taking of the seals by their subjects. Other nations were also to be asked to become parties to the agreement.1
It may be regarded as finally established that fishing in the open sea is free to all, though of course states may by conventions establish regulations which shall be binding upon their subjects.
$ 55. Vessels At the present time every vessel must be under the jurisdiction of some state.
(a) Classes. — Vessels are divided into two general classes.
(1) Public vessels, which include ships of war, government vessels engaged in public service, and vessels employed in the service of the state and in command of government officers.
(2) Private vessels, owned by individuals and . under regulations varying in different states.
(6) The nationality of a public vessel is determined by its flag. In an extreme case the word of the commander is held to be sufficient proof.
In case of a private vessel the flag is a common evidence, but in case of doubt the vessel must show to proper authorities its papers which certify its nationality.
(c) The general exercise of jurisdiction over vessels is as follows: —
(1) Upon the high seas and within its own waters the jurisdiction of a state over its public
and private vessels is exclusive for all cases. 1 Proceedings Fur Seal Arbitration, 1893 ; also 27 U. S. Sts. at Large, 947.
(2) Over public vessels in foreign waters, the jurisdiction of the state to which a public vessel belongs is exclusive for all matters of internal economy. The vessels are subject to port regulations in matters of anchorage, public safety, etc. As Dana says in his note to Wheaton, “ It may be considered as established law, now, that the public vessels of a foreign state coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits.”i In general practice the waters of all states are open to the vessels of war of all other states with which they are at peace. This is a matter of courtesy and not of right, and is in fact sometimes denied, as by the provision of the Treaty of Berlin, 1878, “ The port of Antivari and all the waters of Montenegro shall remain closed to the ships of war of all nations.”2 Various regulations may require, without offence, notice of arrival, probable duration of
stay, rank of commander, etc. The boats, rafts, etc., attached to a vessel of war are regarded as a part of the ship while engaged in the public service.
While there is some difference of opinion as to the immunities of the persons belonging to a ship of war in a foreign harbor, a generally admitted rule seems to be that while the persons of a ship of war are engaged in any public service that is not prohibited by the local authorities, such persons are exempt from local jurisdiction. The ship's crew would not be arrested and detained by local authorities for minor breaches of local 1 Note 63, § 105.
2 IV. Hertslet, 2783.
regulations, though they might be sent on board their vessel with statement of reasons for such action. If the action of the crew constitutes a violation of the law of the country to which they belong, the commander of the ship may punish them, and report his action to the local authorities. In case of crimes of serious nature the commander may, turn the offenders over to the local authorities, but must assure them a fair trial. .
The commander of a vessel is, of course, always responsible to his home government, and his action may become the subject of diplomatic negotiations.
The question of right of asylum on board a ship of war has been much discussed. First, Most civilized states now afford asylum on board their ships of war to those who, in the less civilized regions, flee from slavery. Second, In cases of revolution ships of war sometimes afford refuge to members of the defeated party, though the ship of war may not be used as a safe point from which further hostilities may be undertaken. Third, A commander may afford asylum to political refugees under circumstances which he thinks advisable. Fourth, In cases where asylum is granted to offenders whether political, or (in case of treaty right) criminal, if the request of the local authorities for the release of the criminal is refused by the commander of the ship, there is no recourse except to the diplomatic channels through extradition.
The immunities granted to vessels of war are also generally conceded to other vessels strictly upon public service, e.g. carrying an ambassador to his post. The largest possible exemption is given to a vessel con
1 Art. 28, Gen. Act Brussels Conference, July 2, 1890.