INVOLUNTARY ENTRANCE

IS 224 It is to be observed, however, that American courts exercise discretion in taking or withholding jurisdiction according to the circumstances of the particular case. Their action in so doing is not to be regarded as indicative of any requirement of public international law.1

(d)

§ 224. Involuntary Entrance.

A foreign vessel forced into port by stress of weather, or by inevitable necessity, is not regarded as subject to the local jurisdiction. The involuntary entrance furnishes a ground of exemption.2 Thus the imposition of a fine upon a foreign ship compelled to put into port for such a reason is believed to lack justification.3 Likewise, goods on board of a vessel so circumstanced are not regarded as subject to the payment of duties. Exemption from payment depends, however, upon proof of the fact of the urgency of the distress. The necessity must be grave 5 and the proof convincing [see following page for footnote 6].

country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category; and the consent of their consul or minister is frequently required before the court will proceed to entertain jurisdiction; not on the ground that it has not jurisdiction; but that, from motives of convenience or international comity, it will use its discretion whether to exercise jurisdiction or not; and where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, it will entertain jurisdiction even against the protest of the consul."

It may be observed that the Supreme Court of the United States has construed the Seamen's Act of 1915, chap. 153, 38 Stat. 1164, as indicating no design on the part of the Congress to assert control over aliens' contracts of shipment abroad on foreign vessels, and of advancements in pursuance thereof. Sandberg v. McDonald, 248 U. S. 185; also Neilson v. Rhine Shipping Company, 248 U. S. 205. Compare Strathearn S. S. Co. v. Dillon, 252 U. S. 348. 2 Hallet & Browne v. Jenks, 3 Cranch, 210, 219; The Short Staple v. United States, 9 Cranch, 55; The Nuestra Señora de Regla, 17 Wall. 29. See, also, Mr. Seward, Secy. of State, to Mr. Stoeckl, Russian Minister, June 4 and June 13, 1864, MS. Notes to Russian Legation, VI, 156, 157, Moore, Dig., II, 343; Mr. Bayard, Secy. of State, to Mr. Phelps, Nov. 6, 1886, For. Rel. 1886, 362, 364-365; Moore, Dig., II, 343.

3 Mr. Uhl, Acting Secy. of State, to Mr. Smythe, Minister to Haiti, May 3, 1894, MS. Inst. Haiti, III, 398, Moore, Dig., II, 349; Report of Mr. Davis, Committee on Foreign Relations, July 14, 1897, on case of Alfredo Laborde and others, Competitor prisoners, Senate Rep. 377, 55 Cong., 1 Sess., 5, Moore, Dig., II. 349; Mr. Bayard, Secy. of State, to Mr. Phelps, Nov. 6, 1886, For. Rel. 1886, 362, 364–365, Moore, Dig., II, 343.

The Brig Concord, 9 Cranch, 387; The New York, 3 Wheat, 59, 68; Opinion of Mr. Wirt, Atty.-Gen., 1 Ops. Attys.-Gen., 509; Mr. Bayard, Secy. of State, in Case of the Rebecca, Feb. 26, 1887, Senate Ex. Doc. 109, 49 Cong., 2 Sess., Moore, Dig., II, 345.

5 Declares Wheaton: "The danger must be such as to cause apprehension in the mind of an honest and firm man. I do not mean to say that there must be an actual physical necessity existing at the moment; a moral necessity

Between 1831 and 1841, there arose a series of cases where slaves on board of American merchant vessels, wrecked upon British coasts, or forced, by stress of weather or mutiny, into British ports, were liberated.1 The involuntary presence of a foreign vessel in a local port might not suffice to dissolve the existing relations between persons on board,2 or to justify the local authorities in taking affirmative steps to put an end to the existing relationship, unless the continuance thereof became a source of real disturbance to the peace of the country. It might, however, well be doubted whether, as Mr. Dana pointed out in relation to the foregoing cases:

The local authorities must give active aid to the master against persons on board his vessel who are doing no more than peacefully and quietly dissolving, or refusing to recognize, a relation which exists only by force of the law of the nation to which the vessel belongs, if the law is peculiar to that nation, and one which the law of the other country regards as against common right and public morals.4

In all of the cases Great Britain paid an indemnity, in those of the Comet and the Encomium, as a result of diplomacy; 5 in those of would justify the act; where, for instance, the ship had sustained previous damage, so as to render it dangerous to the lives of the persons on board to prosecute the voyage: such a case, though there might be no existing storm, would be viewed with tenderness; but there must be at least a moral necessity. Then, again, where the party justifies the act upon the plea of distress, it must not be a distress which he has created himself, by putting on board an insufficient quantity of water or of provisions for such a voyage; for there the distress is only a part of the mechanism of the fraud, and cannot be set up in excuse for it; and in the next place, the distress must be proved by the claimant in a clear and satisfactory manner. It is evidence which comes from himself, and from persons subject to his power, and probably involved in the fraud, if any fraud there be, and is, therefore, liable to be rigidly examined." Note on Case of The New York, 3 Wheat. 59, quoting from opinion of Sir William Scott in the case of The Eleanor, Edwards, 159, 160, Moore, Dig., II, 340-341.

The Eolus, 3 Wheat. 392 [see previous page for this note reference]. These were the cases of the Comet, 1831; the Encomium, 1835; the Hermosa, 1840; and the Creole, 1841. For a brief statement of facts of the

several cases, see Moore, Dig., II, 350–352.

2 Mr. Webster, Secy. of State, to Mr. Everett, June 28, 1842, Curtis' Life of Webster, II, 106, quoted in Moore, Dig., II, 352; Mr. Webster, Secy. of State, to Lord Ashburton, British Plenipotentiary, Aug. 1, 1842, Webster's Works, VI, 303, 306, Moore, Dig., II, 353.

3 See opinion of Mr. Bates, umpire, in the case of the Enterprise, and in the case of the Hermosa, Moore, Arbitrations, IV. 4372 and 4374 respectively, Moore, Dig., II, 355 and 357, respectively.

Dana's Wheaton, note No. 62. See, also, Hall, 5 ed., 202, note. Compare opinion of Mr. Bates, umpire, in the case of the Creole, Moore, Arbitrations, IV, 4375, Moore, Dig., II, 358.

Mr. Webster, Secy. of State, to Mr. Fillmore, M. C., May 6, 1842, House Ex. Doc. No. 242, 27 Cong., 2 Sess., p. 1.

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the Enterprise, Hermosa and the Creole, in pursuance of the award of Mr. Joshua Bates, umpire of the mixed commission under the Convention of February 8, 1853.1

(e)

§ 225. Asylum on Merchant Vessels.

The case of the individual who, after having committed an offense within the territory of a State, escapes therefrom, takes passage abroad on a foreign merchant vessel, and is sought to be arrested thereon when the ship enters a local port, presents on principle no difficulties. The fugitive has no connection with the ship save as a passenger. His violation of the local law within the national domain, and its necessary effect upon the public mind, justify, and in a sense compel, the territorial sovereign to apprehend and prosecute the wrongdoer when he enters its domain. The circumstance that he is a passenger in transit to another country on board of a vessel entering territorial waters merely in order to make a port of call, seems to be immaterial. The ship itself is not exempt from local jurisdiction and cannot grant asylum.2 The views of the Department of State with respect to the matter did not, at least before the close of the last century, appear to be harmonious. Mr. Bayard, Secretary of State, referring, in 1885, to the case of one Gámez, declared it to have been the duty of the captain of an American ship to surrender to the local authorities of Nicaragua, upon their request, a political fugitive from that country who had voluntarily taken passage at San José de Guatemala, for Costa Rica, knowing that the vessel would enter en route a Nicaraguan port.3

In 1890, Mr. Blaine, as Secretary of State, in a communica

1 For the texts of the awards of the umpire, see Moore, Arbitrations, IV, 4374-4378, Moore, Dig., II. 355–361.

2 Mr. Buchanan, Secy. of State, to Mr. Jordan, Jan. 23, 1849, 37 MS. Dom. Let. 98, Moore, Dig., II, 856; Mr. Fish, Secy. of State, to Mr. Bassett, Minister to Haiti, May 27, 1876, MS. Inst. Haiti, II, 79, Moore, Dig., II, 857; Mr. Bayard, Secy. of State, to Mr. Thompson, Minister to Haiti, Nov. 3, 1885, For. Rel. 1885, 542, Moore, Dig., II, 857.

3 Instruction to Mr. Hall, Minister to Central America, March 12, 1885, MS. Inst. Cent. Am., XVIII, 488, Moore, Dig., II, 867.

It appears that the captain of the ship, having declined to surrender Gámez, set sail without proper clearance papers. Criminal proceedings instituted against the master in his absence resulted in a decision ultimately affirmed by the Supreme Court of Nicaragua, announcing the exemption of foreign merchant vessels from the local jurisdiction with respect to persons on board accused of political offenses. See Mr. Shannon, Minister to Central America, to Mr. Foster, Secy. of State, Oct. 13, 1892, For. Rel. 1892, 45-49, Moore, Dig., II, 868-870.

tion to Mr. Mizner, Minister to Central America, asserted that in Spanish-American countries it was the habit of the territorial sovereign before making an arrest, to apply to the diplomatic or consular officer of the State to which the vessel belonged for his consent, and to furnish such officer with proof of the nature of the crime alleged; that the arrest was never made when the representative of the United States withheld his consent or the demand wore a political aspect; that powerful causes operated in favor of the exception that had arisen, exempting political offenders from local jurisdiction.1 Mr. Blaine rebuked the Minister for having intervened, by authorizing, in compliance with demands of Guatemala, the seizure on an American vessel, at a Guatemalan port, of General Barrundia, a passenger in transit from Mexico to Panama, who had been charged with the commission of political offenses against Guatemala.2 General Barrundia had resisted capture, and had been killed. By reason of his intervention, the Minister was recalled.3

In 1893, one Bonilla, a native of Honduras, boarded an American steamer in Nicaragua bound for Guatemala. Upon the arrival of the vessel at Amapala, Honduras, his surrender was duly demanded of the captain, on the ground that Bonilla had been "sentenced by the Courts of the Republic." The captain, after consultation with Mr. Baker, the American Minister to Nicaragua, who was himself a passenger on the vessel, refused to comply. The captain was later warned that if he attempted to leave port before delivering Bonilla, the vessel would be fired upon. The vessel, having previously received her clearance papers, and still retaining custody of the fugitive, proceeded to leave port and was fired upon, but without effect. The United States vigorously protested against this action. The Government of Honduras promptly gave assurances of disavowal and regret.4

1 Communication of Nov. 18, 1890, For. Rel. 1890, 123, 133-141, Moore, Dig., II, 859-852, and 872-876. Cf., also, Mr. Rockhill, Third Assist. Secy. of State, to Mr. Williams, Consul-General at Havana, Sept. 5, 1895, 149 MS. Inst. Consuls, 433, Moore, Dig., II, 862.

2 Relative to the impropriety of consular intervention, see Mr. Bayard, Secy. of State, to Mr. Thompson, Minister to Haiti, Nov. 7, 1885, MS. Inst. Haiti, II, 523, Moore, Dig., II, 858.

President Harrison, Annual Message, Dec. 1, 1890, For. Rel. 1890, iii, Moore, Dig., II, 871. In that document it is stated that General Barrundia had failed in a revolutionary attempt to invade Guatemala from Mexican territory, and that his seizure was attempted in order that he might be tried "under what is described as martial law.'

See Mr. Mizner's defense in For. Rel. 1890, 144, contained in part in Moore, Dig, II, 876.

For. Rel. 1893, 154 et seq., Moore, Dig., II, 880–881.

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Mr. Gresham, Secretary of State, on Dec. 30, 1893, enunciated the general principles which he believed to be applicable in such cases. He declared that a merchant vessel in a foreign port was within the local jurisdiction with respect to offenses and offenders against the local laws; that as the doctrine of asylum had "no recognized application" to such a vessel, the master was without discretion as to the character of the offense charged; that permitting the arrest of a passenger was not analogous to proceedings in extradition; that the master was not competent to determine whether the evidence was sufficient to warrant arrest and commitment for trial, or to impose conditions upon arrest; that his function was merely passive, being confined to permitting the regular agents of the law, on exhibition of lawful warrant, to make the arrest; that American diplomatic and consular officers were incompetent to order surrender by way of quasiextradition. While the Secretary declared that arbitrary attempts to capture a passenger by force, without regular judicial process, might call for disavowal when the resort to violence endangered the lives of innocent men and the property of a friendly nation, he was far from asserting that there was a limitation of the right of jurisdiction over political refugees peculiar to Spanish American States. It is believed that Mr. Gresham correctly stated the requirements of the law. It must be clear that the attempt to prevent an enlightened State, whether of Spanish America or Europe, from exercising as complete jurisdiction over foreign vessels and their occupants within local ports as is commonly and properly enjoyed by maritime powers generally, betokens disrespect for the territorial sovereign, imputing to it inability to administer justice, and breeding contempt for its legitimate authority.

Over the fugitive from the justice of a foreign State who is arrested within the territory of a third State and brought into a local port, in the custody of foreign agents on a foreign merchant vessel, in transit to the place of trial, the territorial sovereign

1 Communication to Mr. Huntington, For. Rel. 1894, 296, Moore, Dig., II, 880. "The letter to Mr. Huntington was communicated by Mr. Gresham, Secretary of State, to Mr. Baker, United States Minister to Nicaragua, Jan. 31, 1894. March 22, 1898, Mr. Sherman, Secy. of State, instructed Mr. Merry, Mr. Baker's successor, that he was to be guided by it." Moore, Dig., II, 882, citing MS. Inst. Cent. Am., XXI, 290.

Relative to the unwillingness of the United States "to acquiesce in the arbitrary and forcible violation of its flag by a merely military power, without due and regular warrant of law and not in conformity with the ordinary course of justice", see Mr. Foster, Secy. of State, to Mr. Scruggs, Minister to Venezuela, Sept. 8, 1892, For. Rel. 1892, 623, Moore, Dig., II, 864.