Claim of Vessels to sail under a certain Flag.
§ 261. The Law of Nations does not include any rules regarding the claim of vessels to sail under a certain maritime flag, but imposes the duty upon every State having a maritime flag to stipulate by its own Municipal Laws the conditions to be fulfilled by those vessels which wish to sail under its flag. In the interest of order on the Open Sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the Open Sea is freedom for such vessels only as sail under the flag of a State. But a State is absolutely independent in framing the rules concerning the claim of vessels to its flag. It can in especial authorise such vessels to sail under its flag as are the property of foreign subjects; but such foreign vessels sailing under its flag fall thereby under its jurisdiction. The different States have made different rules concerning the sailing of vessels under their flags.[518] Some, as Great Britain[519] and Germany, allow only such vessels to sail under their flags as are the exclusive property of their citizens or of corporations established on their territory. Others, as Argentina, admit vessels which are the property of foreigners. Others again, as France, admit vessels which are in part the property of French citizens.[520]
[518] See Calvo, I. §§ 393-423, where the respective Municipal Laws of most countries are quoted.
[519] See section 1 of the Merchant Shipping Act, 1894 (27 and 28 Vict. c. 60), and sections 51 and 80 of the Merchant Shipping Act, 1906 (6 Ed. VII. c. 7).
[520] The Institute of International Law adopted, at its meeting at Venice—see Annuaire, XV. (1896), p. 201—in 1896, a body of ten rules concerning the sailing of merchantmen under the maritime flag of a State under the heading:—"Règles relatives à l'usage du pavillon national pour les navires de commerce."
But no State can allow such vessel to sail under its flag as already sails under the flag of another State. Just as a vessel not sailing under the flag of a State, so a vessel sailing under the flags of two different States does not enjoy any protection whatever. Nor is protection enjoyed by such vessel as sails under the flag of a State which, like Switzerland, has no maritime flag. Vessels belonging to persons who are subjects of States without a maritime flag must obtain authority to sail under some other State's flag, if they wish to enjoy protection on the Open Sea. And any vessel, although the property of foreigners, which sails without authority under the flag of a State, may be captured by the men-of-war of such State, prosecuted, punished, and confiscated.[521]
[521] See the case of the steamship Maori King v. His Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p. 562, and sections 69 and 76 of the Merchant Shipping Act, 1894 (27 and 28 Vict. c. 60).
Ship Papers.
§ 262. All States with a maritime flag are by the Law of Nations obliged to make private vessels sailing under their flags carry on board so-called ship papers, which serve the purpose of identification on the Open Sea. But neither the number nor the kind of such papers is prescribed by International Law, and the Municipal Laws of the different States differ much on this subject.[522] But, on the other hand, they agree as to the following papers:—
[522] See Holland, "Manual of Naval Prize Law," §§ 178-194, where the papers required by the different maritime States are enumerated.