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Ships of war enjoy the full rights of extraterritoriality in foreign ports and territorial waters.

8 Op., 73, Cushing, 1856.

As to reciprocity in allowing foreign ships-of-war in United States ports to receive goods free of duty, see Mr. Cadwalader, Asst. Sec. of State, to Mr. Washburn, Oct. 14, 1876. MSS. Inst., France.

As to hospitalities to ships of war, see Brit. and For. St. Papers, 1865-6, vol. 56.

The sovereignty of the flag of foreign ships-of-war is not only conceded in England, where the rule in respect to merchant ships is sometimes contested, but it is held to apply to port as well as at sea. The rule, says Judge Story, in an opinion adopted by Sir R. Phillimore (I, 477), is not founded on any notion that a foreign sovereign has an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another sovereign when it comes within his territory, for that would be to give a sovereign power beyond the limits of his own empire. But it stands upon principles of public comity and convenience, and arises from the presumed consent or license of nations, that foreign public ships coming into home ports and demeaning themselves according to law, and in a friendly manner, shall be exempt from the local jurisdiction. "But as such consent and license are implied only from the general usage of nations they may be withdrawn upon notice at any time without just offense; and if afterwards such public ships come into our ports, they are amenable to our laws in the same manner as are other vessels.” But, unless withdrawn, it is presumed to be conceded. And it is now settled that foreign shipsof-war and boats, the particular property of a foreign sovereign, are not liable to process, though the ships or boats be at the time of the cause of action on the territorial waters of the state of process (Santissima Trinidad, ut sup.). A state, it should be added, is internationally entitled to exclude from its ports the ships-of-war of other nations or to limit their stay; and this right has been exercised by neutral states as to belligerent cruisers. When such a foreign ship enters a friendly port, it is exempted ordinarily from the control of the port police. If there be misconduct on board such ship when in port it may be required to leave the port without breach of international courtesy.

See authorities cited in Whart. Com. Am. Law, § 190; Twiss, i, § 158; Bluntschli, § 321.

As to asylum given to belligerent ships, see infra, § 394.

As to refusing admission into territorial waters of foreign public ships, see infra §§ 3156, 331.

In the preamble of the judgment of 1872 by the Geneva Tribunal is the following:

"And whereas the privilege of extraterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality:

4 Papers relating to Treaty of Washington. (See, as to award, infra, § 402a.) "The tribunal of arbitration at Geneva held that the privilege of extraterritoriality, accorded to vessels of war, had been admitted into the

law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations. This is in accordance with the settled practice of the United States. Attorney-General Lee, in the early days of the Republic, gave his opinion that it is lawful to serve either civil or criminal process upon a person on board a British man of war lying within our territory."

Mr. J. C, B. Davis. Notes, &c.

But this pretension was resisted and resented by the United States when the Chesapeake was "visited" and searched by the Leopard in 1809 (see infra, §§ 315b, 331), and was withdrawn by the British Gov.

ernment.

See criticism in Creasy's Int. Law, 177, ff.

In the Constitution (40 L. T., N. S., 210) it appeared that the Constitution, a United States vessel of war, while on a voyage from Havre to New York, having on board, among other things, goods from the Paris Exposition, ran ashore on the Welsh coast, when salvage services were rendered to her. Sir R. Phillimore refused to allow a warrant to issue for her arrest, or for the arrest of the goods on board of her, at the salvor's suit. The claim was settled by voluntary payment by the United States, who resisted the issue of the warrant on ground of principle. 'It is clear,' said Sir R. Phillimore, upon all the authorities which are to be found in the case of the Charkeih (L. R., 4 Ad. & E., 39), that there is no doubt as to the general proposition that ships-of-war belonging to another nation with whom this Government is at peace are exempt from the civil jurisdiction of the country. And it was further held that an unarmed vessel belonging to a foreign sovereign, employed by him on a national service, is not subject to arrest."

The Parlement Belge, L. R., 5 P. D., 97, citing also Briggs r. Light-Boats, 11
Allen, 157. (See, also, The Pizarro, 10 N. Y. Leg. Ob., 97.)

XIV. OPPRESSIVE PORT EXACTIONS.

§ 37.

"You will state that this Government does not question the right of every nation to prescribe the conditions on which the vessels of other nations may be admitted into her ports. That, nevertheless, those conditions ought not to conflict with the received usages which regulate the commercial intercourse between civilized nations. That those usages are well known and long established, and no nation can disregard them without giving just cause of complaint to all other natious whose interests would be affected by their violation.

» That the circumstance of an officer of a vessel having published, in his own country, matters offensive to a foreign Government does not, according to those usages, furnish a sufficient cause for excluding such vessel from the ports of the latter

That the steamers employed u transporting the mail from this country to Havana, being in the employment of Government, and placed by

law, to a certain extent, under its control, partake, in some degree, of the character of public vessels."

Mr. Conrad, Acting Sec. of State, to Mr. Barringer, Oct. 28, 1852.
Spain.

MSS. Inst.,

"It has become necessary again to instruct you to call the attention of the Spanish Government to the onerous burdens to which the trade of the United States is subjected by reason of the system of fines imposed by the customs authorities of Cuba.

"The able manner in which you have already presented the subject in your notes of the 16th July, 1870, and 28th of November, 1872, makes it unnecessary for me to repeat or to dwell upon the facts of which our ship-owners and masters complain. The printed memorandum which is inclosed shows the present condition of the question. The remedy which the ship-owners of the United States desire cannot be better stated than in the language of the following extract from the memorial which forms part of the inclosed memorandum :

"The Spanish laws require that a vessel bound for Cuban ports shall make out manifests of cargo, the same to be certified by the Spanish consul residing at, or nearest to, the port of loading, in which manifest the captain must declare positively, and without qualification, the several and different kinds of packages, their marks, the generic class of contents, as well as the weights and values of same, and for every instance where, on arrival in Cuba, the examination of the cargo shows a difference between the packages and the weights, and contents of same as actually found and the same as manifested, the vessel is fined, while the goods escape all responsibility.

"That although the generic class of the goods is stated on the manifest, in compliance with the requirements of the Spanish laws, and said manifests accepted and certified to by the Spanish consul, yet the vessel is fined for not stating the specific class.

"That we are entirely dependent on shippers of cargoes for information as to weights, values, and contents of packages shipped from which to make out manifests, and irresponsible parties often give erroneous descriptions of their part of cargo, resulting in fines imposed on the vessels, at times greatly in excess of the freight, against which we have no redress.

"That the customs authorities at the several ports in Cuba place different constructions on the laws relative to vessels, and the manifests of same, and fines have been imposed in one port for stating that for which fines were imposed in another port for omitting.

"That the captain is only informed of any fines imposed on his vessel when he attempts to clear her at the custom-house, whereby he has either to pay the fines or detain the vessel indefinitely while contesting the same.

"That although we are willing and endeavor to comply with the said laws regulating manifests, yet, under the conflicting instructions

placed on same by the different collectors of customs in Cuba, we find it impossible to do so, or to avoid fines.

"In cases where fines are imposed, an appeal to the superior authorities at Havana is permitted on payment, under protest, of said fines; but unless the amount of such fine is excessive the delay occasioned by the detention of the vessel would exceed in most cases the amount of such fine even if recovered.

"We would respectfully represent to the Department that as the vessel, through her agents, is entirely dependent on the shippers of cargo for information necessary to describe on the manifest the contents and weights of packages shipped, the propriety of imposing fines on the goods erroneously described on manifest, instead of on the vessel, as then the shipper would have a sure remedy against the vessel in case of error on her part, or on the part of her agents, in making out manifests, while under existing regulations it is in most cases almost, if not impossible, for the vessel to recover the amount of fines from the shipper.

"These objections and suggestions appear to be reasonable, moderate, and just. It has therefore been determined both to instruct you to use your best endeavors to secure the modifications and changes which the ship-owners desire, and also to endeavor to secure a similar and, as far as possible, identical action on the part of the British, German, and Swedish and Norwegian Governments, whose commerce also is affected by these rules and regulations.

"You will therefore confer with the British, German, and Swedish and Norwegian ministers at Madrid, in the hope that they may receive instructions which may enable each to frame a note to be addressed by each separately to the Spanish minister for foreign affairs on the subject, which may be simultaneous, if not identical. Should they or either of them, under instructions from their Governments, decline to act, you will nevertheless address a note yourself upon the subject, and spare no reasonable efforts to induce the Spanish Government to accede to the requests you are instructed to make."

Mr. Fish, Sec. of State, to Mr. Sickles, March 21, 1873. MSS. Inst., Spain; For. Rel., 1873. Accompanying this instruction are several valuable documents relative to the questions discussed.

"The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of the note of Mr. Preston, envoy extraordinary and minister plenipotentiary of Hayti, of the 16th

instant.

"It states that his Government has thought proper to transfer to its legation in this country the discussion which has heretofore been carried on with the legation of the United States at Port au Prince, relative to the act of the Haytian Congress of the 23d of August, 1877, authoriz ing certain charges by the consuls of that Republic abroad on exporta

tions from foreign countries to Hayti. With a view to show that those charges are not incompatible with the treaty between the United States and that Republic, Mr. Preston quotes several articles of that instrument. These, however, are general in their terms and appear to have no special reference to the question at issue.

"According to the preamble, one of the main objects of the treaty was to place the commercial relations between the two countries upon the most liberal basis.

"The act of the Haytian legislature referred to cannot be regarded as in conformity with that stipulation. It authorizes the consuls of that Republic to charge exorbitant fees on exportations from the United States; among others, 1 per cent. on the value of cargo of the vessel. This, besides being illiberal in its character, is tantamount to an export duty, acquiescence in which by this Government would be a concession to that of Hayti of an authority in ports of the United States which has not been conferred on this Government by the Constitution.

"There is, however, a clause in the thirteenth article of the treaty, one of those cited by Mr. Preston, which seems to have a direct application to the point in dispute.

"If the Haytian consular charges in the United States are so considerable as virtually to be an export tax, this would in effect contravene the stipulation which declares that no higher duties or charges shall be imposed in the United States on the exportation of any article to Hayti than such as shall be payable on the exportation of the like article to any foreign country. This clause is unconditional, and not only forbids this Government from levying any such tax, but also a consul of Hayti at a port of the United States.

"The preamble to the Haytian law in question expressly acknowl edges that one of its objects was to benefit the treasury of that Republic. Several of the other charges which it authorizes appear to be excessive. Such charges may not be uniform as prescribed by the laws of different countries. It is believed, however, that no other than Hayti has authorized them to such an extravagant amount as that provided for by the law referred to, or has required an export tax on merchandise. This Department had hoped that the remonstrances on the subject which had been addressed to that Government through the United States legation in Hayti would ere this have led to a repeal or modification of that statute. This hope has, however, been disappointed, but as the charges complained of are believed to work a serious discouragement to trade, it is hoped that, as the Haytian Government is understood to be adverse to a policy leading to such a result, it will no longer delay removing the cause of the grievance.

"It is believed that Mr. Preston is mistaken in saying that the United States is the only Government which has complained of the effect of the statute referred to. According to reports from the legation of this

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