with foreign nations, is a part of the maritime code and is enforced by civil suit in rem on the instance side of the courts of admiralty, independently of any criminal conviction in personam.2

23

§ 517. The law of the high seas.-The courts of every country will administer justice according to its own laws, unless a different law be shown to apply; and this rule applies to transactions taking place on the high seas. If a collision occur on the high seas, where the law of no particular state or country has exclusive force, but all are equal, any forum called upon to settle the rights, and to determine the controversies arising therefrom, would, prima facie, determine them by its own laws as presumptively expressing the rules of justice; but if the contesting vessels belong to the same foreign nation, the court will assume that they were subject to the law of their nation, carried under their common flag, and would determine their controversy accordingly. But if they belong to different nations, having different laws, since it would be unjust to apply the laws of either to the exclusion of the other, the law of the forum, that is, the maritime law as received and practiced therein, would properly furnish the rule of decision. In all other cases, each nation will also administer justice according to its own laws; and it will do this without respect to persons, to the stranger as well as to the citizen.24 The law of the sea is of universal obligation, and no single nation can change it. No statute of one or two states can create obligations for the world. Like all the laws of nations, the law of the sea rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. And the rules of navigation mentioned in the British orders in council of January 9, 1863, and in the Act of congress of the United States of 1864, having been accepted

23 United States v. The Three Friends, 166 U. S. 1-83 (41:897).

24 The Scotland, 105 U. S. 24, 36 (26:1001); The Belgenland v. Jen

sen, 114 U. S. 355, 373 (29:152); Liverpool and Great Western Steam Co. v. Ins. Co., 129 U. S. 397-464 (32:788).

as obligatory rules by more than thirty of the principal commercial states of the world, they are regarded as part, at least, of the law of the sea, and of that fact the courts of this country will take judicial notice.25

§ 518. Same-Contracts of affreightment made in foreign countries. The general rule of law, that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view, applies to maritime shipments, and requires a contract of affreightment, made in one country between citizens or residents thereof, and the performance of which begins there, to be governed by the law of that country, unless the parties, when entering into the contract, clearly manifest a mutual intention that it shall be governed by the law of some other country,26 but the courts of one country cannot take cognizance of the law of another without plea and proof," and, in a suit in the admiralty courts of the United States upon a maritime contract of affreightment made in a foreign country to be governed by its laws, the parties, if they desire the application of those laws, must allege and prove them as a fact.28

§ 519. The judicial power extends to two classes of civil suits in admiralty.-The judicial power of the United States. extends to and embraces two great classes of civil suits in admiralty, namely: (1) Suits arising under the maritime law and which are by that law cognizable in the instance court of admiralty, and (2) prize cases, or cases arising out of captures jure belli, and which are cognizable in the prize court of admiralty. In England these are different courts, and although the jurisdiction of each of them is always exercised by the same person, yet he holds the offices by different commissions. But, under the constitution of the United States, the instance

25 The Scotia, 14 Wall. 170, 189 (20:822); The Belgenland v. Jensen, 114 U. S. 355, 373 (29:152); U. S. Rev. Stat. sec. 4233; 2 Fed. Stat. Anno. 183-201, where the cases are collected.

26 Liverpool and Great Western Steam Co. v. Ins. Co., 129 U. S. 397-464 (32:788).

27 Liverpool and Great Western

Steam Co. v. Ins. Co., 129 U. S. 397-464 (32:788); Church v. Hubbart, 2 Cranch. 187-236 (2:249); Ennis v. Smith, 14 How. 426, 427 (14:472); Pierce v. Indseth, 106 U. S. 546 (27:254).

28 Liverpool and Great Western Steam Co. v. Ins. Co., 129 U. S. 397-464 (32:788); The Scotland, 105 U. S. 24, 36 (26:1001).

court of admiralty and the prize court of admiralty are the same court, acting under one commission, still embracing two distinct jurisdictions, and the proceedings in the two classes of cases are different. When a case has been prosecuted as a prize cause in the modes in use in the prize courts, and the facts, when developed, show it not to be prize, but a case for forfeiture under the federal statutes, no judgment of forfeiture can be rendered without amending the proceedings so as to conform to the requisites of the procedure on the instance side of the court; and in like manner, when a case has been prosecuted on the instance side, and the facts, when developed, show it to be a case of prize, there can be no condemnation of the property as prize without first amending the proceedings so as to conform to the modes of procedure in prize courts; and upon appeal in such cases, the appellate court will reverse and remand for the purposes of amendment and further proceedings.29

§ 520. In the adjudication of prize, courts of admiralty are governed by the law of nations. In the maritime law, the word prize means a legal maritime capture jure belli; there can be no prize unless there be existing an actual state of war. "The right of prize and capture has its origin in the 'jus belli,' and is governed and adjudged under the laws of nations." The right of maritime capture is defined by the laws of nations; and, therefore, in adjudicating upon the question of prize or no prize, courts of admiralty are controlled by the rules and principles of international law, and not by the municipal or local laws of any state or nation.30

§ 521. Power of congress to make rules concerning prizes or maritime captures.-Although congress has no power to either restrict or extend the limits of the judicial power of the United States over causes of admiralty and maritime jurisdic

29 Jecker V. Montgomery, 13 How. 498-518 (14:240); S. C. 18 How. 110-126 (15:311); United States v. Weed, 5 Wall. 62, 74 (18: 531); Prize Cases, 2 Black, 635, 699 (17:459); The Adeline, 9 Cranch, 244; Glass v. The Betsey, 3 Dall. 6 (1:485).

30 Prize Cases, 2 Black. 635 (17:

459); United States v. The Watchful, 6 Wall. 91, 93 (18:763); United States v. Weed, 5 Wall. 62, 74 (18:531); Jecker v. Montgomery, 13 Wall. 498 (14:240); The City of Mexico, 28 Fed. 148, 150; Jecker v. Montgomery, 18 How. 110 (15: 311).

31

tion, yet it has power to make rules concerning maritime captures. The federal constitution confers upon congress the power: "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." 32The power granted by this constitutional provision to make rules concerning captures is an independent substantive power, not included in that of declaring war,33 and in the exercise of that power, congress has made and established a complete code of rules for the adjudication and disposition of maritime captures, and the procedure to be followed in such cases.3*

§ 522. Seizure and condemnation of piratical vessels.-The judicial power of the United States in maritime causes extends to and embraces proceedings for the condemnation of piratical vessels, seized and sent in for adjudication under the legislation of congress "to protect the commerce of the United States and punish the crime of piracy." Such proceedings are civil proceedings in rem, independent of and wholly unaffected by any criminal proceedings in personam, the ship being held responsible for the misconduct, torts and crimes of the master and crew, without regard to the ignorance or innocence of the owners. This legislation forms a part of the maritime code of the United States.s

35

36

§ 523. Forfeitures and condemnation of maritime captures not dependent upon criminal conviction in personam.—It is a principle of federal legislation, derived from the general maritime law, that the condemnation of a vessel seized for a violation of the maritime code, and sent in for adjudication, is not dependent upon a criminal conviction in personam of the master, crew, or owners of the vessel, of the torts and crimes or vio

31 The Genesee Chief, 12 How. 443, 465 (13:1058); The St. Lawrence, 1 Black, 522, 532 (17:180); The Lottawana, 21 Wall. 558, 609 (22:654); Butler v. Steamship Co., 130 U. S. 527, 558 (32:1017); The Blackheath, 195 U. S. 361, 369 (49: 236).

32 U. S. Const. art. I, sec. 8, cl. 11. 33 Brown V. United States, 8 Cranch, 110, 129 (3:504).

34 U. S. Rev. Stat. secs. 46134652; 3 U. S. Comp. Stat. 1901, pp.

3126-3139; 6 Fed. Stat. Anno. 6687; U. S. Rev. Stat. secs. 4752, 4759, 4760, 5441; 18 U. S. Stat. at L. ch. 256, p. 63.

35 United States v. The Malek Adhel, 2 How. 210 (11:239); The Mariana Flora, 11 Wheat. 1 (6: 531); The Palmyra, 12 Wheat. 1 (6:531).

36 U. S. Rev. Stat. secs. 42934299; 5 Fed. Stat. Anno. 752-755; 3 U. S. Comp. Stat. 1901, pp. 29502952.

lations of the code which subject the vessel to forfeiture and condemnation. The proceeding to condemn is a civil proceeding in rem, for the condemnation of the vessel only, in which all the facts which establish the forfeiture may be alleged and proved wholly independent of and without regard to any criminal prosecution or conviction in personam of the persons whose violations of the maritime code of the country have worked a forfeiture of the vessel. The suit to condemn is a civil suit in rem, and not a criminal prosecution. Indeed, in such cases, forfeiture may be decreed if the proof should show the commission of the prohibited acts, although failing to show the identity of the particular persons by whom they were committed. The civil suit for condemnation and the criminal prosecution of the persons charged with the violation of the law are wholly independent and are pursued in different courts, and the result in the two cases may be different.37

§ 524. Rule defining the public navigable waters of the United States.-The common-law rule which made the ebb and flow of the tide the test of navigability and admiralty jurisdic tion in England was based upon the physical fact that, in that country, there are no waters navigable in fact which are not also subject to the flow and reflow of the tide; there, the limit of the tide is also the limit of navigability in fact, and the rule as applied to the actual physical conditions in England is not only a rational one, but the only one that could be applied.38

The common-law rule as to the test of navigability and admiralty jurisdiction was adopted in this country by the supreme court in an early decision 3 and followed for twentyfive years, when the court, having pressed upon its attention the inapplicability of the rule to the actual physical conditions in this country, and seeing that a continuation of it would necessarily produce great public inconvenience, and frustrate the purpose of the framers of the constitution to secure perfect equality in the rights and privileges of the citizens of the dif

37 United States v. The Three Friends, 166 U. S. 1-83 (41:897); The Palmyra, 12 Wheat. 1 (6: 531); The Ambrose Light, 25 Fed. 408; The Meteor, 17 Fed. Cases, 178; The United States v. The Malek Adhel, 2 How. 210 (11:239).

38 Escanaba and Lake Michigan Transp. Company v. Chicago, 107 U. S. 678, 691 (27:442); The Genesee Chief, 12 How. 443 (13:1058). 39 The Thomas Jefferson, 10 Wheat. 426 (6:358) (decided in 1825).