[531] See Martens, N.R.G. 2nd Ser. XXII. p. 113.
[532] Latest British Regulations, 1896.
[533] The matter of collision at sea is exhaustively treated by Prien, "Der Zusammenstoss von Schiffen nach dem Gesetzen des Erdhalls" (2nd ed. 1899).
The question of jurisdiction in actions for damages for collision at sea is not at all settled.[534] That the damaged innocent vessel can bring an action against the guilty ship in the Courts of the latter's flag State is beyond doubt since jurisdiction on the Open Sea follows the flag. If the rule that all vessels while on the Open Sea are considered under the sway of their flag State were one without exception, no other State would claim jurisdiction in cases of collision but the flag State of the guilty ship. Yet the practice of the maritime States[535] goes far beyond this, without, however, being uniform. Thus, for instance, France[536] claims jurisdiction if the damaged ship is French, although the guilty ship may be foreign, and also in the event of both ships being foreign in case both consent, or for urgent measures having a provisionary character, or in case France is a place of payment. Thus, further, Italy[537] claims jurisdiction even if both ships are foreign in case an Italian port is the port nearest to the collision, or in case the damaged ship was forced by the collision to remain in an Italian port. Great Britain goes farthest, for the Admiralty Court claims jurisdiction provided the guilty ship is in a British port at the time the action for damages is brought, even if the collision took place between two foreign ships anywhere on the High Seas.[538] And the Admiralty Court justifies this extended claim of jurisdiction[539] by maintaining that collision is a matter of communis juris, and can therefore be adjudicated upon by the Courts[540] of all maritime States.[541]
[534] See Phillimore, IV. § 815; Calvo, I. § 444; Pradier-Fodéré, V. Nos. 2362-2374; Bar, "Private International Law" (2nd ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws" (2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd ed.), pp. 486 and 495; Westlake, "Private International Law" (3rd ed.), pp. 266-269; Marsden, "The Law of Collisions at Sea" (6th ed. 1910); Williams and Bruce, "Treatise on the Jurisdiction of English Courts in Admiralty Actions" (3rd ed. 1902).
[536] See Pradier-Fodéré, No. 2363.
[537] See Pradier-Fodéré, No. 2364.
[538] Or even in foreign territorial waters. See Williams and Bruce, op. cit., p. 78:—"The Admiralty Court from ancient times exercised jurisdiction in cases of collision between foreign vessels on the High Seas; and since the Admiralty Court Act, 1861, it has entertained suits for collision between ships in foreign waters, and between an English and a foreign ship in foreign waters."
[539] The Johann Friederich (1838), 1 W. Robinson, 35; the Chartered Mercantile Bank of India, London, and China v. The Netherlands India Steam Navigation Co., 10 Q.B.D. 537.