IN MEMORIAM H. C. DRESSELHUYS. Grande est la perte que l'Institut Intermédiaire International subit par la mort de son secrétaire du Conseil protecteur, survenue à La Haye, le 16 décembre 1926. Un sentiment de profond respect et d'affectueuse reconnaissance s'empare de nous à la pensée du réel intérêt que M. Dresselhuys portait à notre institution, et cela, malgré les fonctions multiples qu'il occupait. Il y avait peu de domaines de la vie publique, auxquels M. Dresselhuys ne consacrât son activité. Ceux qui étaient de nature à servir les questions internationales n'étaient pas loin d'avoir sa préférence. C'est ainsi qu'il acceptait les fonctions de secrétaire général de la Croix rouge néerlandaise et qu'il était encore actuellement président de l'Association néerlandaise pour la Société des Nations et la Paix. Il était membre de la commission des affaires étrangères à la Seconde Chambre et il représentait son pays à l'Union Interparlementaire. Rien d'étonnant, dès lors, qu'un homme comme lui s'intéressât vivement à la fondation de notre Institut et voulût se charger du secrétariat du Conseil protecteur avec tout le dévouement qui le caractérisait. THE BRISTOL CHANNEL TERRITORIAL WATERS. S.S. "FAGERNES" 1). par HUGH H. L. BELLOT, D. C. L. Associé de l'Institut de Droit International, Hon. In this case a collision occurred in the Bristol Channel on 17th March, 1926, between the S.S. Cornish Coast owned by the plaintiffs and the Fagernes owned by the defendants, the Società Nazionale di Navigazione. The Cornish Coast was damaged and the Fagernes was sunk. The plaintiffs accordingly brought an action for damages by collision in personam against the defendants and obtained an order to serve notice of the writ out of the jurisdiction. The defendants thereupon moved to set aside this order on the grounds that the collision occurred outside British territorial waters; that the Court had no jurisdiction to try the case; and that if there was jurisdiction, leave to serve notice of the writ out of the jurisdiction was a matter for the discretion of the Court which ought not, in the circumstances to exercise its discretion in favour of the plaintiffs. In dismissing the motion with costs, Mr. Justice Hill said that the first question to be determined was whether the act of the defendants causing the collision and consequent damage was committed within the jurisdiction. The nearest point on the English coast was a little to the eastward of Ilfracombe, and the nearest point on the Welsh coast was Oxwich Head. The distance across was about 20 sea miles, and the place of collision was 10 or 12 miles distant from the English coast and 91 or 7 miles from the Welsh coast according to the evidence of the respective parties. The words within the jurisdiction" meant within the territorial jurisdiction of the King. (See per Sir Robert Phillimore in In re Smith & Others, 1 P. D. 300 (1876); Harris v. Owners of Franconia, 2 C. P. D. 173 (1877). The Bristol Channel was at the place in question and throughout its length bounded by land which formed part of the King's territory. He had not, therefore, to deal with the limits seawards of the King's territory, where the coast was bounded by an external sea. But whatever was the true view, where the coasts were bounded 1) Weekly Notes, 1926, p. 196, (8 June, 1926). Voir aussi ce B., p. 109. by the external seas, no one had ever doubted that, within limits, inlets of the seas into the land were part of the territory of the state which owned the land on both sides. Chief Justice Cockburn, who delivered the leading judgment of the majority of the Court in The Queen v. Keyn, 2 Ex. D. 63 (1876) had been careful to draw the distinction. He said,,If an offence was committed in a bay, gulf, or estuary inter fauces terrae, the common law could deal with it, because the parts of the sea so circumstanced were held to be within the body of the adjacent county or counties; but along the coast, on the external sea, the jurisdiction of the common law extended no further than to low-water mark." There was very little authority relevant to such a sea as the Bristol Channel where it was 20 miles wide, or to other bays and inlets with a wide bell-mouth, and international law and lawyers were not agreed on the matter. Therefore he returned to the common law, with a regret that the Judical Committee of the Privy Council had not been obliged to decide the point in the Conception Bay Coy v. Anglo-American Telegraph Coy, 2 App. Cas. 394 (1877). His guide in the present case was Cunningham's Case, Bell's Crown Cases, pp. 72, 86, (1859). In that case the question was whether a crime committed on board an American ship in Penarth Roads was committed within the County of Glamorgan. It was held that it was, and it was said that the whole of this inland sea between the counties of Glamorgan and Somerset was to be considered as within the counties of the shores of which its several parts were respectively bounded. What in that case did the Court mean by ,,the whole of this inland sea between the counties of Glamorgan and Somerset"? The place in question in that case was, it was true, above Lavernook Point, but the words used did not limit the inland sea to parts above Lavernook Point. If the waters above Lavernook Point were inter fauces terrae, he saw no reason why the same was not true of the waters above a line drawn from Nash Point to the Foreland, or the waters above a line drawn from Bull Point to Port Eynon Head. For the purposes of the present case he need go no further. He held that the act causing the collision was committed within the jurisdiction, and the Court had power to order services of notice of the writ out of the jurisdiction. The second question was whether the Court ought to give leave to do so. No doubt the discretion ought to be exercised with care and so as not to be oppressive to the foreigner. No doubt it was of the very greatest importance to the defendants that the plaintiffs should be left to an action in Italy. If the Fagernes was to blame, it would make all the difference between a liability limited by English law to £ 8. per ton and a liability limited by Italian law to a ship which lay sunk in some 18 fathoms of water. It would, however, be pushing a tender regard for the defendants to an extreme limit if on that account he refused to allow the plaintiffs to bring them before the Admiralty Court. This decision is in line with such authority as exists. The learned Judge might, however, have cited The Alleganean Scott's Cases on International Law, p. 232, heard before the Court of Commissioners of Alabama Claims in 1885. In this case Chesapeake Bay, the entrance to which is twelve miles across, was held to be within the territorial jurisdiction of the United States. Amongst the grounds given for this decision are that the headlands of the bay are well-marked and but twelve miles apart; that it and its tributaries are wholly within the territory of the United States; that the boundary lines of adjacent states encompass it; that from the earliest history of the country it has been claimed to be territorial waters; that it cannot become the pathway from one nation to another; and that it complied with the doctrines of recognised authorities upon International law, as well as with the decisions of the English Courts as to the Bristol Channel and Conception Bay. The principle is correctly stated by Sir Robert Phillimore in his International Law, Vol. 1, § CXCIX,,,Maritime territorial rights", he says,,,extend, as a general rule, over arms of the sea, bays, gulfs, estuaries, which are inclosed, but not entirely surrounded by lands belonging to one and the same State.... Thus Great Britain has immemorially claimed and exercised exclusive property and jurisdiction over the bays or portions of sea cut off by lines drawn from one promontory to another, and called the King's Chambers." The real question, he says, is whether it be within the physical competence of the State, possessing the circumjacent land, to exclude other States from the whole portion of the sea so surrounded. But as we have seen this is not quite so: the acquiescence of other States in such claims to exclude, must also be present. It is upon the former ground that Vattel defends the claim to regard Hudson's Bay and the Magellan Straits as territorial waters, although the former has an entrance of fifty miles. So the United States claim Delaware Bay which is eighteen miles wide, Cape Cod Bay, which is thirty-two miles as territorial waters, as well as other inlets of a similar kind declared to be such in Dunham v. Lamphere, 3 Gray, 268 (1855); Manchester v. Massachusetts, 139 U. S. 240 (1890); Shively v. Bowlby, 152 U. S. 1 (1893). France claims the Bay of Cancale which is seventeen miles wide, and Norway the Varanger Fiord which is thirtytwo miles, as territorial waters. It may be noted that up to the 17th century the King's Chambers implied a much wider area. It included the ,,Four Seas", which were claimed by Great Britain as her exclusive possession. This is what Selden meant when in his Mare Clausum he asserted,,that the King of Great Britain is lord of the sea flowing about, as an inseparable and perpetual appendant of the British Empire." It was these and the similar excessive claims of Spain and Portugal to wide areas of the high seas, that Grotius set himself out to combat and eventually defeat in his celebrated Mare Liberum. |