waters british rules subject united tidal ships
NAVIGATION LAWS. These laws are a branch rather of municipal law than of the general maritime law for which see SEA LAWS). They are based upon the right of a state to regulate the navigation of its own waters and to protect its own commerce, and may be divided into two classes.
The first class includes all those laws, once so numerous, designed to secure a commercial monopoly to the state coasting trade was wholly restricted to British ships, and a British ship must have been navigated by a master who was a British subject, and by a crew of whom a certain proportion must have been British subjects. The impolicy of such legislative restrictions, clearly shown by Adam Smith, was at last acknowledged by parliament, and since 1854 the only relics of such restrictions are to be found in the provisions of the 16 & 17 Vict. c. 107, § 324, by which, in order to secure reciprocity, prohibitions or restrictions may by order in council be imposed upon the ships of any country in which British ships are liable to similar prohibitions or restrictions. Subject to these exceptions, a foreign ship is in the same position as a British ship with regard to British trade. This right of foreign ships is expressly recognized by the Customs Law Consolidation Act, 1876 ; by § 141 of that Act foreign ships engaged in the coasting trade are not to be subject to higher rates than British ships. Any advantages which a British ship has, e.g., the right of claiming protection for her flag, the non-attachment to her of a maritime lien for necessaries supplied in a British port, are not directly connected with the policy under which the Navigation Acts have become obsolete. These advantages are not secured to a British ship until. she is registered. American. law agrees with British in this respect. "The United States have imitated the policy of England and other commercial nations in conferring peculiar privileges upon American-built ships and owned by our own citizens. . . . The object of the Registry Acts is to encourage our own trade, navigation, and shipbuilding by granting peculiar or exclusive privileges of trade to the flag of the. United States, and by prohibiting the communication of those immunities to the shipping and mariners of other countries" (Kent, Comm., iii. 139). It may be noticed that an alien is generally incapable of becoming the owner of a ship. This incapacity is specially preserved in the case of British ships by the Naturalization Act, 1870.
The second class of navigation laws includes those which deal with the navigation of any waters over which a state has any control, and embraces all that is necessary for the due use of such waters, as rules of the road, management of harbours and lighthouses, and licensing and control of pilots. Such laws may deal with (1) the high seas, (2) tidal waters other than the high seas, (3) non-tidal waters.
The claims of various nations to dominion over parts of the high seas have now become matters of merely historical interest. Such claims have been at different times advanced by Great Britain, Holland, Spain, and Portugal, and were once sufficiently important to evoke the Mare Liberum of Grotius and the Hare Clausum of Selden. But, though such claims upon the high seas have long been relinquished, rules for the navigation of the high seas may still be promulgated by any Government. In Great Britain such rules have been made by order in council under the powers of the Merchant Shipping Act, 1862 ; the rules at present in force are those contained in the order of 14th August 1879. To these rules all the states of Europe except Turkey, and in America the United States, Chili, Brazil, and Ecuador, have assented, so that as far as the assenting states are concerned they are of universal validity. Japan and Turkey have assented to them with certain modifications. In the case of a state which has not assented to them, the only rules enforceable are the general rules of the sea, gradually ascertained by individual cases before courts of admiralty.
For the navigation of its tidal waters - so far as they are territorial - a state may legislate without the assent of other states. An example of such legislation is afforded by the Territorial Waters Jurisdiction Act, 1878, a measure passed in consequence of the celebrated case of the Queen v. Keyn (the "Franconia" case) in 1876. Under the head of territorial waters would fall the "narrow seas" (as the Bristol Channel, Great Belt, or Straits of Messina), bays and harbours, estuaries and arms of the sea, navigable tidal rivers, and the sea for the distance of a marine league from the shore. Such waters being res publicw, though not res communes as are the high seas, are prima facie subject to the jurisdiction of the state. In England the soil under such waters, or at least under all but the last kind, is prima fade vested in the crown, subject to the public rights of fishery and anchorage. For the distance of a marine league the crown has certainly jurisdiction for police and revenue purposes. This is a rule of general international law. In England the navigation of most of the principal tidal waters is governed by rules contained in Acts of Parliament and orders in council, the latter for the most part promulgated under the authority given by the Merchant Shipping Act, 1862. Thus the navigation of the Thames is governed by the order of 18th March 1880, of the Mersey by the Mersey Sea Channels Act, 1874, and the order of 5th January 1881, of the Tyne by the order of 12th December 1867, of the Tees by the order of 5th September 1870, of the Humber by the order of 23d December 1881, and of the dockyard ports by the order of 6th March 1868.
Non-tidal waters, even though navigable, are in Great Britain prima fade private waters, in which the right of navigation does not exist as a public franchise, but can only be acquired by prescription, founded on a presumed grant by an owner. In Roman law and in the Code Napoleon it is otherwise. Navigable rivers in those systems are always publici juris, whether tidal or non-tidal. Navigation of non-tidal waters in the United Kingdom, whether natural or artificial, is now almost entirely regulated by various Navigation and Conservancy Acts, e.g., the Thames Conservancy Acts, the Shannon, Trent, Lee, &c., Navigation Acts, and the various Canal Acts. It may be noticed that the crown is empowered by the Merchant-Shipping Act,. 1862, to make rules for the navigation of inland waters, even when artificial, on the application of.. the proprietors. Examples of such rules are the orders in council regulating the Mersey and Irwell navigation and the Bridgewater navigation, 18th May 1870. Such waters being private property, the application for the rules.by the proprietors is recited in the order in council.
The distinction drawn in the United States between navigable and boatable rivers seems to be peculiar to that country, unless indeed .it is analogous to the "fleuves et rivieres navigables ou flottables " of the Code Napoleon, § 538. It is at least unknown in Great Britain.
Remedies for Obstruction. - These may be either criminal or civil, - the criminal by indictment or information, the civil by action for damages or for an injunction, in addition to the criminal remedy, where special damage has been sustained. It seems to be a good defence that the obstruction was for the public benefit. This obviously leaves a considerable discretion in the hands of the court.
International Law. - The international law as to the navigation of the high seas has been sketched above. As to territorial waters, it is the general though not the universal opinion of jurists that the state to which the territorial waters belong has a right to forbid their navigation by foreigners. The free navigation of rivers has often been the subject of treaties, almost necessarily so where a river is the boundary between two states. In such a case, if a state were to maintain the strict letter of its rights, navigation would be almost impossible, as each state is proprietor down to the middle line of the bed of the river, the medium filum aquw. By the treaty of Vienna in 1815 it was provided that the navigation of all rivers separating or traversing the states that were parties thereto should be open for commercial purposes to the vessels of all nations, subject to a uniform system of police and tolls. The treaty of Paris, 1856, extended this principle to the Danube. In America the cases of the Mississippi and the St Lawrence are important. By the treaty of Versailles, 1783, it was provided that " the navigation of the Mississippi shall for ever remain free and open to the subjects of Great Britain and the citizens of the United States." But the United States afterwards acquired Louisiana and Florida; and, the stipulation as to British subjects not being renewed in the treaty of Ghent, 1814, the United States maintain that the right of navigating the Mississippi is vested exclusively in their citizens. As to the St Lawrence, after disputes for a long period between Great Britain and the United States, the right of free navigation for purposes of commerce was secured to the United States by the treaty of Washington, 1871. There are some waters, such as the Bosphorus and the Suez Canal, which are subject to peculiar engagements by treaty or agreement. But as a rule it may be said that in time of peace the territorial waters of a state are open to foreigners for commercial purposes, subject to observance of any rules as to police, pilotage, &c., imposed by the state. For instance, a system of compulsory pilotage is in existence in many ports, and a vessel refusing to conform to the pilotage regulations might incur serious Most of the general law of England on this subject is contained in Part V. of the Merchant Shipping Act, 1854. Tolls may be imposed by the state upon foreigners. This right is expressly recognized in most commercial treaties. A notable instance was the claim of Denmark to charge what were called the " Sound dues " from all vessels passing Elsinore, though the Sound was not strictly her territorial water. The right was not universally recognized, though it had prescription in its favour, and was invariably paid. In 1857 the dues were abolished, and compensation paid to Denmark for the loss of her alleged right. w.f)