NAVIGATION LAWS. The laws grouped under this title are a branch rather of municipal law than of the general maritime law. They are based upon the right of a state to regulate the navigation of its own waters and to protect its own commerce. One of the most curious early books on the subject is Captain G. St Lo, England’s Safetie or a Bridle to the French King, proposing a sure Method for encouraging Navigation (London, 2nd ed. 1693). Navigation laws may be divided into two classes. The first class includes all laws designed to secure a commercial monopoly to the state which enacted them. In Great Britain the object was attained by the Navigation Acts, the earliest of which were those of 1381 and 1390, ordaining that no merchandise should be shipped out of the realm except in British ships on pain of forfeiture. The principal Navigation Act was that of 1660 (Scottish, 1661, c. 45). Up to 1854 coasting trade was wholly restricted to British ships, and a British ship must have been navigated by a master who was a British subject, and by a crew of whom a certain proportion must have been British subjects. After 1854 the only relics of such restrictions were found in the provisions of the Customs Consolidation Act 1853, § 324, by which, in order to secure reciprocity, prohibitions or restrictions may by order in council be imposed upon the ships of any country in which British ships are liable to similar prohibitions or restrictions. Subject to these exceptions, a foreign ship is in the same position as a British ship with regard to British trade. This right of foreign ships is expressly recognized by the Customs Law Consolidation Act 1876; by § 141 of that act foreign ships engaged in the coasting trade are not to be subject to higher rates than British ships. Any advantages which a British ship has, e.g. the right of claiming protection for her flag, the non-attachment to her of a maritime lien for necessaries supplied in a British port, are not directly connected with the policy under which the Navigation Acts have become obsolete. These advantages are not secured to a British ship until she is registered. United States law agrees with British in this respect. “The United States have imitated the policy of England and other commercial nations in conferring peculiar privileges upon American-built ships and owned by our own citizens. . . . The object of the Registry Acts is to encourage our own trade, navigation and shipbuilding by granting peculiar or exclusive privileges of trade to the flag of the United States, and by prohibiting the communication of those immunities to the shipping and mariners of other countries” (Kent, Comm. iii. 139). It may be noticed that an alien is generally incapable of becoming the owner of a ship. This incapacity was specially preserved in the case of British ships by the Naturalization Act 1870, § 14.
The second class of navigation laws includes those which deal with the navigation of any waters over which a state has any control, and embraces all that is necessary for the due use of such waters, as rules of the road, management of harbours and lighthouses, and licensing and control of pilots. Such laws may deal with (1) the high seas, (2) tidal waters other than the high seas, (3) non-tidal waters.
1. The claims of various nations to dominion over parts of the high seas have now become matters of merely historical interest. Such claims have been at different times advanced by Great Britain, Holland, Spain and Portugal, and were once sufficiently important to evoke the Mare Liberum of Grotius and the Mare Clausum of John Selden. It may be noted that in 1893 the Court of Arbitration on the Bering Sea Fisheries found that Russia had never claimed or exercised exclusive jurisdiction over the Bering Sea outside territorial waters and that the United States had no further right than had Russia at the time of the cession of Alaska in 1867. Rules for the navigation of the high seas may still be promulgated by any government. In Great Britain such rules, generally known as the “Sailing Rules,” have been made by order in council under the powers of the Merchant Shipping Act 1862; the rules at present in force are those contained in the order of the 27th of November 1896, L.G. No. 1082, as amended by subsequent orders in council. The order of 1896 was extended by the order of 1897, L.G. No. 572, to the ships of most foreign countries, with a special provision as to China. In the case of a state which has not assented to them, the only rules enforceable are the general rules of the sea, gradually ascertained by individual cases before courts of admiralty.
2. For the navigation of its tidal waters—as far as they are territorial—a state may legislate without the assent of other states. An example of such legislation is afforded by the Territorial Waters Jurisdiction Act 1878, a measure passed in consequence of the celebrated case of R. v. Keyn, L.R. 2 Ex. D., 126 (the “Franconia” case), in 1876. Under the head of territorial waters would fall the “narrow seas” (as the Bristol Channel, Great Belt or Straits of Messina), bays and harbours, estuaries and arms of the sea, navigable tidal rivers, and the sea for the distance of a marine league from the shore. Such waters being res publicae though not res communes, as are the high seas, are prima facie subject to the jurisdiction of the state. In England the soil under such waters, or at least under all but the last kind, is prima facie vested in the crown, subject to the public rights of fishery and anchorage. For the distance of a marine league from low-water mark the crown has certainly jurisdiction for police and revenue purposes. This is a rule of general international law. It may be noted that the Institut de Droit International proposed to double this limit. See Hall, International Law (5th ed.), p. 154. In England the navigation of most of the principal tidal waters is governed by rules contained in acts of parliament and orders in council, the latter for the most part promulgated under the authority given by the Merchant Shipping Act 1862. For instance, there are numerous orders relating to the Thames, Mersey, Tees and other important rivers.
3. Non-tidal waters, even though navigable, are in Great Britain prima facie private waters, in which the right of navigation does not exist as a public franchise, but can only be acquired by prescription founded on a presumed grant by an owner. In Roman law and in the Code Napoléon it is otherwise. Navigable rivers in those systems are always publici juris, whether tidal or non-tidal. Navigation of non-tidal waters in the United Kingdom, whether natural or artificial, is now almost entirely regulated by various Navigation and Conservancy Acts, e.g. the Thames Conservancy Acts, the Shannon, Trent, Lee, &c., Navigation Acts, and the various Canal Acts, especially the Manchester Ship Canal Act 1885. It may be noticed that the crown is empowered by the Merchant Shipping Act 1862 to make rules for the navigation of inland waters, even when artificial, on the application of the proprietors. Examples of such rules are the orders in council regulating the Mersey and Irwell navigation and the Bridgewater navigation, 18th May 1870. Such Waters being private property, the application for the rules by the proprietors is recited in the order in council.
The distinction drawn in the United States between navigable and boatable rivers seems to be peculiar to that country, unless indeed it is analogous to the “fleuves et rivières navigables ou flottables” of the Code Napoléon, § 538. lt is at least unknown in Great Britain.
Remedies for Obstruction and Pollution.—These may be either criminal or civil—the criminal by indictment or information, the civil by action for damages or for an injunction, in addition to the criminal remedy, where special damage has been sustained. Pollution is expressly provided for by the Rivers Pollution Prevention Act 1876, which gives jurisdiction to county courts in cases within the act.
International Law.—The international law as to the navigation of the high seas has been sketched above. Reference should also be made to what is known as the “Rule of the War of 1756” to the effect that where a colonial or coasting trade is prohibited to other nations in time of peace, a neutral by engaging in this trade by permission of a belligerent in time of war is liable to the other belligerent. The leading case is The Immanuel (1799), 2 C. Robinson’s Rep. 186. Regulations for the coasting trade may be made by the government of India under the powers of the Customs Consolidation Act 1853, § 329, and by the legislature of a British possession under the Merchant Shipping Act 1894, § 736. As to territorial waters, it is the general though not the universal opinion of jurists that the state to which the territorial waters belong has a right to forbid their navigation by foreigners. The free navigation of rivers has often been the subject of treaties, almost necessarily so where a river is the boundary between two states. In such a case, if a state were to maintain the strict letter of its rights, navigation would be almost impossible, as each state is proprietor down to the middle line of the bed of the river, the medium filum aquae or thalweg. By the treaty of Vienna in 1815 it was provided that the navigation of all rivers separating or traversing the states that were parties thereto should be open for commercial purposes to the vessels of all nations, subject to a uniform system of police and tolls. The treaty of Paris, 1856, extended this principle to the Danube. In America the cases of the Mississippi and the St Lawrence are important. By the treaty of Versailles, 1783, it was provided that “the navigation of the Mississippi shall for ever remain free and open to the subjects of Great Britain and the citizens of the United States.” But the United States afterwards acquired Louisiana and Florida; and, the stipulation as to British subjects not being renewed in the treaty of Ghent, 1814, the United States maintains that the right of navigating the Mississippi is vested exclusively in its citizens. As to the St Lawrence, after disputes for a long period between Great Britain and the United States, the right of free navigation for purposes of commerce was secured to the United States by the treaty of Washington, 1871. There are some waters, such as the Suez Canal and the Panama Canal, which are subject to peculiar engagements by treaty or convention. The former depends on the Convention of Constantinople, 29th of October 1888, the latter—as far as regards the United Kingdom and the United States—on the Hay-Pauncefote Treaty, 18th of November 1901. But as a rule it may be said that in time of peace the territorial waters of a state are open to foreigners for commercial purposes, subject to observance of any rules as to police, pilotage, &c., imposed by the state. Tolls may be imposed by the state upon foreigners. This right is expressly recognized in most commercial treaties. A notable instance was the claim of Denmark to charge what were called the “Sound dues” from all vessels passing Elsinore, though the Sound was not strictly her territorial water. The right was not universally recognized, though it had prescription in its favour and was invariably paid. In 1857 the dues were abolished, and compensation paid to Denmark for the loss of her alleged right. (J. W.)