across its territory, it generally implied a waiver of jurisdiction over that army.
[4]
SCHOONER EXCHANGE V. MCFADDON, 11
U.S. 116 (1812)
Brief Fact Summary. Two Americans (P) laid claims of ownership and
entitlements to the schooner Exchange.
Synopsis of Rule of Law. National ships of war are viewed as been
exempted by consent of the power of the friendly jurisdiction whose port the
ship enters.
Facts. Two Americans (P) claimed they owned and were entitled to the
schooner Exchange they seized on the high seas. The claim which the
United States Attorney (D) put forward for the prevention of the ship leaving
was that, the ship which was owned by the Emperor of France had been
forced to enter the port of Philadelphia due to bad weather conditions.
At this point in time, the U.S and France were on friendly terms. The United
States (D) request for the dismissal of ownership and release of the ship
was granted by the district court. However, this judgment was reversed by
the circuit court and this did not prevent the United States (D) from
appealing to the U.S. Supreme Court.
Issue. Are National ships of war viewed as been exempted by the consent
of the power of the friendly jurisdiction whose port the ship enters?
Held. (Marshall, C.J.) Yes. National ships of war are viewed as been
exempted by consent of the power of the friendly jurisdiction whose port the
ship enters. A nations jurisdiction within its sovereign territory is exclusive
and absolute.
The Exchange been a public armed ship, currently under the control and
supervision of a foreign power, who at the time of the ships entry into the
United States territory, was at peace with the United States, must be viewed
as having entered the states territory under an implied promise that while in
such environment, would be exempt from the jurisdiction of the country.
Reversed.
Discussion. The absolute form of sovereign immunity from judicial
jurisdiction was implicated in this case. Three principles were brought
forward by the court in this case; the immunity that all civilized nations allow
to foreign ministers; the exemption of the person of the sovereign from
arrest or imprisonment within a foreign country; and when a sovereign
permits troops of a foreign prince to pass through his territory, such
sovereign is understood to mean he has ceded a portion of his territorial
jurisdiction.
Another Source:
The Schooner Exchange v. M'Faddon, 11 U.S. 116 (1812) is a United
StatesSupreme Court case concerning the Federal courts' jurisdiction over
a claim against a friendly foreign military vessel visiting an American port.
The court, interpreting customary international law, determined that there
was no jurisdiction.
Facts:
The schooner Exchange, owned by John M'Faddon and William Greetham,
sailed from Baltimore, Maryland, on October 27, 1809, for San Sebastin,
Spain. On December 30, 1810, the Exchange was seized by order
of Napoleon Bonaparte. The Exchange was then armed and commissioned
as a French warship under the name of Balaou. When the vessel later
docked in Philadelphia due to storm damage, M'Faddon and Greetham filed
an action in the district court to seize the vessel, claiming that it had been
taken illegally. The district court found that it did not have jurisdiction over
the dispute. On appeal, the circuit court reversed the decision of the district
court, and ordered the district court to proceed to the merits of the case.
[1]
The Supreme Court reversed the circuit court's decision, and affirmed the
district court's dismissal of the action.
Held:
Chief Justice Marshall delivered the opinion of the court. He noted that by
the definition of sovereignty, a state has absolute and exclusive jurisdiction
within its own territory, but that it could also by implied or express consent
waive jurisdiction.[2] Moreover, Marshall also noted that under international
custom jurisdiction was presumed to be waived in a number of situations.
For instance, a foreign sovereign and his diplomatic representatives were
generally free from the jurisdiction of domestic courts when visiting.
[3]
Similarly, if a state granted permission for a foreign army free passage
This custom was firmly enough established and necessary for
international relations that it would be wrongful for a country to violate it
without prior notice.[5]
Marshall further noted that while the right of free passage by an army need
usually be explicitly granted (likely because such passage inevitably
involves physical damage of some sort), by maritime custom a nation's
ports were presumptively open to all friendly ships. While a nation could
close its ports to the warships of another country, it would have to issue
some form of declaration to do so. Without such a declaration, a friendly
foreign warship could enter a nation's port with its implied consent.
[6]
Marshall further distinguished the difference between private merchant
ships and citizens (who are subject to a nation's jurisdiction when they enter
its ports with the nation's implied consent), and military ships. Namely,
private ships do not carry with them the sovereign status of military ships,
with the privileges that accompany it.[7] From this, Marshall arrived at the
conclusion that, by customary international law, a friendly warship that
enters a nation's open port are exempted from that nation's jurisdiction.[8]
Applying this analysis to the facts at hand, Marshall found that the courts did
not have jurisdiction over the case.
Significance:
The decision is regarded as the "first definitive statement of the doctrine of
foreign state immunity"[10][11] Additionally, the unwillingness of the Court to
find jurisdiction without action by the political branches of government, along
with some explicit dicta,[12] led to a tradition of great deference by the courts
to official and individual determinations of immunity by the State
Department.[13] This system was only revised in favor of judicial
interpretations with the passage of the Foreign Sovereign Immunities Act in
1976.
THE PEOPLE OF THE PHILIPPINES
vs.
SEGUNDO M. ACIERTO
TUASON, J.:
This is an appeal from two separate decisions, one in a case for falsification
of a private document and another in six cases for estafa. The charges for
estafa are similar in all respects except as to the dates of the commission of
the crimes and the amounts alleged to have been swindled. In the cases of
estafa, the accused pleaded guilty and was sentenced to four months and
one day of arresto mayor in each, to indemnify the United States Army in
the amount of P305.08, P353, P316.44, P221.08, P233.48 and P209.60,
respectively, with subsidiary imprisonment in case of insolvency but not to
exceed one-third of the principal penalty, and to pay the costs. In the case of
falsification, in which the defendant pleaded not guilty, he was condemned
to an indeterminate penalty of from one year and eight months to four years
and nine months, to indemnify the United States Army in the amount of
$100.46, or subsidiary imprisonment in case of insolvency, and to pay the
costs.
On this appeal, the seven cases have been consolidated in the briefs and
for decision, and in all of them these questions are raised: (1) former
jeopardy, (2) want of jurisdiction of the court a quo, on both of which the
Solicitor General sides with the appellant, and (3) sufficiency of the
evidence, besides others be briefly mentioned in the latter part of this
opinion.
For a background, it is well to state the pertinent facts.
Prior to August 23, 1947, the accused was employed by the Army of the
United States as court martial reporter on a salary basis in the Judge
Advocate Section, Headquarters PHILRYCOM, Camp Rizal, Quezon City.
On that date, at this request, he was "dropped from the strength report of
this section" and became a reporter on piece-work arrangement. As piece
worker he was paid for so much work of reporting and transcribing as he
performed. It was when he was working in the latter capacity, in 1948, that
he was said to have made false claims and received compensation for
services not rendered.
Charged with violation of the 94th Article of War, in the belief that defendant
was still an employee of, or serving with, the Army subject to its jurisdiction,
on March 20, 1948, he was placed under arrest by the United States Military
authorities, detained in a United States Army stockade, and brought to trial
before a general court martial appointed and convened by the Commanding
General on April 7, 1948.
Before the court martial, the defendant, on arraignment, interposed a
special plea to its jurisdiction. But he was overruled, after which, trial
proceeded on a plea of not guilty. On April 8, 1948, after trial, he was found
guilty of all the specifications with which he stood charged, and sentenced
to be confined at hard labor for sixty months. Immediately after the sentence
was promulgated, he was committed to the general prisoners branch by
which, it is alleged, he was subjected to hard labor like all other military
prisoners.
On June 18, 1948, however, the Commanding General as reviewing
authority disapproved the above verdict and sentence in an order of the
following tenor:
In the foregoing case of Segundo M. Acierto, a person accompanying and
serving with the Army of the United States without the territorial jurisdiction
of the United States, the sentence is disapproved upon the sole ground that
this accused was not subject to military law and without prejudice to his trial
before a proper tribunal.
Consequently, on June 19, he was conducted by a United States Military
office to the City Attorney of Quezon City for prosecution under the penal
laws of the Philippines, and the said City Attorney, after conducting a
preliminary investigation, filed the information which initiated the several
cases now on appeal.
The appellant states in his brief that in all the above seven cases he set up
the plea of double jeopardy, a statement which is belied by the fact that in
all the six cases for estafa he pleaded guilty. However, the plea of double
jeopardy is interwoven with the plea of want of jurisdiction, in that the former
is directly predicated on the proposition, now sustained by the defendant,
that the court martial had jurisdiction of the offenses and his person.
Because of this interrelationship between the two pleas, we may disregard,
for the present, the fact that in the six cases for estafa double jeopardy,
which is a matter of defense, was not invoked.
The Bases Agreement between the Republic of the Philippines and the
United States over American Military bases signed on March 14, 1947, and
effective upon its acceptance by the two governments, in part provides:
ARTICLE XIII
JURISDICTION
1. The Philippines consents that the United States shall have the right to
exercise jurisdiction over the following offenses:
"(a) Any offense committed by any person within any base except where the
offender and offended parties are both Philippine citizens (not members of
the armed forces of the United States on active duty) or the offense is
against the security of the Philippines;
"(b) Any offense committed outside the bases by any member of the armed
forces of the United States in which the offended party is also a member of
the armed forces of the United States; and
"(c) Any offense committed outside the bases by any member of the armed
forces of the United States against the security of the United States.
2. The Philippines shall have the right to exercise jurisdiction over all other
offenses committed outside the bases by any member of the armed forces
of the United States.
3. Whenever for special reasons the United States may desire not to
exercise the jurisdiction reserve to it in paragraphs 1 and 6 of this Article,
the officer holding the offender in custody shall so notify the fiscal
(prosecuting attorney) of the city or province in which the offense has been
committed within ten days after his arrest, and in such a case the
Philippines shall exercise jurisdiction.
Camp Rizal where the crimes in question were committed was, it is
conceded, a military base or installation in 1948. Since paragraphs (b) and
(c) of section 1 refer to offenses "committed outside the bases" by members
of the armed forces, and since the accused was not, it is also conceded, a
member of the armed forces, these paragraphs may be eliminated from our
inquiry into the jurisdiction of the court martial.
Paragraph (a) is the provision in virtue in which the appellants disputes the
authority of the civil court to take jurisdiction of his offenses. He contends
that he was an employee of the Army of the United States, and was
properly and legally tried by a duly constituted by a military court.
This is the exact reverse of the position defendant took at the military
trial. As stated, he there attacked the court martial's jurisdiction with the
same vigor that he now says the court martial did have jurisdiction; and
thanks to his objections, so we incline to believe, the Commanding General,
upon consultation with, and the recommendation of, the Judge Advocate
General in Washington, disapproved the court martial proceedings.
The question that meets us at the threshold is: Was the defendant an
employee of the United States Army within the meaning of the United States
Military law? Defense counsel at the court martial, a United States Military
officer, and Lt. Colonel Seymour W. Wurfel, Staff Judge Advocate General of
the Philippines Ryukus Command who appeared as amicus curiae in the
Court of First Instance and submitted a memorandum for the prosecution,
were one in holding that he was not. Both counsel thus described the nature
of the defendant's work and his relation with the United States Army.
Defendant worked as he pleased and was not amenable to daily control and
disciplines of the Army. Upon the change of his status he ceased to be an
integral parts of the Army with the corresponding loss of the rights and
privileges he previously enjoyed and which accrue to regular United States
Army employees. While the Army could request him to record court martial
proceedings, in which event he was paid under Army regulations for so
much work accomplished, he could not in his status as piece worker be
compelled to do so. He could act as reporter but was not under any
obligation to the United States Army to do so. He was not required to
present himself for work nor could he be marked absent for failure to appear
regularly in his office. He was remunerated for so much of his work of
reporting and transcribing as he volunteered to make. He was privileged to
remain in his home except for the purpose of bringing his finished report to
the office. Then he was at liberty to depart once more. After his discharge as
regular employee he was in fact paid for records of trial prepared by him
from a fund entirely different from that set aside to pay regular employees'
salaries. His position was comparable to that of any vendor who sells
commodity to the Army as distinguished from employees who draw regular
pay from the organization. The last time he reported court martial
proceedings was on December 13, 1947. Since that date he had not in any
way performed any work for the Army, nor had he been called upon to act in
any case or to report in any section of the Headquarters of the Philippine
Ryukus Command for any purpose. Upon the circumstances set forth, he
could not be considered as serving with the Army.
Colonel Wurfel cited Winthrop's Military Law and Precedents, 2nd ed., Vols.
1 and 2, page 100, which says:
The article to be strictly construed. This article, in creating an exceptional
jurisdiction over civilians, is to be strictly construed and confined to the
classes specified. A civil offender who is not certainly within its terms cannot
be subjected under it to a military trial in time of war with any more legality
then he could be subjected to such a trial in time of peace. As held by the
Judge Advocate General, the mere fact of employment by the Government
within the theatre of war does not bring the person within the application of
the article. In several cases of public employees brought to trial by court
martial during the late war the convictions were disapproved on the ground
that it did not appear that at the time of their offenses they were "serving
with the army" in the sense of this article. (Referring to Article of War 2,
paragraph 2[d.])
Construction of the United States Military Law by the Judge Advocate
General of the United States Army is entitled to great respect, to say the
very least. When such construction is a disclaimed of jurisdiction under the
Bases Agreement, the Philippine Government certainly is not the party to
dispute it; the fewer the rights asserted by the United States the more is
enhanced the dignity of the Philippines and its interest promoted.
Irrespective of the correctness of the views of the Military authorities, the
defendant was estopped from demurring to the Philippine court's jurisdiction
and pleading double jeopardy on the strength of his trial by the court martial.
A party will not be allowed to make a mockery of justice by making
inconsistent position which if allowed would result in brazen
deception. It is trifling with the courts, contrary to the elementary
principles of right dealing and good faith, for an accused to tell one
court that it lacks authority to try him and, after he has succeeded in
his effort, to tell the court to which he has been turned over that the
first has committed error in yielding to his plea.
From another angle, it seems immaterial whether or not the court martial
had jurisdiction of the accused and his crime under the terms of the Bases
Agreement. Granting that it had, the Court of First Instance of Quezon City
nevertheless properly and legally took cognizance of the cases and denied
the defendant's motion to quash.
By the agreement, it should be noted, the Philippine Government
merely consents that the United States exercise jurisdiction in certain
cases. The consent was given purely as a matter of comity, courtesy,
or expediency. The Philippine Government has not abdicated its
sovereignty over the bases as part of the Philippine territory or
divested itself completely of jurisdiction over offenses committed
therein. Under the terms of the treaty, the United States Government
has prior or preferential but not exclusive jurisdiction of such
offenses. The Philippine Government retains not only jurisdictional
rights not granted, but also all such ceded rights as the United States
Military authorities for reasons of their own decline to make use of.
The first proposition is implied from the fact of Philippine sovereignty
over the bases; the second from the express provisions of the treaty.
The treaty expressly stipulates that offenses included therein may be
tried by the proper Philippine courts if for any special reason the
United States waives its jurisdiction over them.
Then carrying out of the provisions of the bases Agreement is the
concern of the contracting parties alone. Whether, therefore, a given
case which by the treaty comes within the United States jurisdiction
should be transferred to the Philippine authorities is to a matter about
which the accused has nothing to do or say. In other words, the rights
granted to the United States by the treaty insure solely that country and can
not be raised by the offender. (Funk vs. State, 208 S. W., 509.) By the
same token, non-compliance with any of the conditions imposed on
the United States cannot benefit the offender.
This brings up the last ground for the contention that the Court of First
Instance of Quezon City was without jurisdiction of the cases at bar. The
Bases Agreement provides in Article XIII, paragraph 3, that in case the
United States renounce the jurisdiction reserved to it in paragraphs 1 and 6
of this Article, the officer holding the offender in custody shall so notify the
fiscal of the city or province in which the offense has been committed within
10 days after his arrest. The Solicitor General invites attention to the fact
that "appellant was arrested by the United States Army on March 20, 1948,
and confined until June 18, 1948, pending final decision of this case," and,
like the appellant, he believes that "this delay of three months does not
obviously comply with the requirement of the foregoing section, which is
explicit on its terms and provides for no exceptions." In their opinion this
delay was fatal.
The appellant and the Solicitor General labor, we believe, under a
misapprehension as to the purpose and meaning of the treaty provision just
cited. This provision is not, and cannot on principle or authority be
construed as a limitation upon the rights of the Philippine
Government. If anything, it is an emphatic recognition and
reaffirmation of Philippine sovereignty over the bases and of the truth
that all jurisdiction rights granted to the United States and not
exercised by the latter are reserved by the Philippine for itself.
The ten-day requirement is of directory character relating to
procedure, inserted merely for the convenience of the Philippine
Government. It cannot and does not pretend to diminish or impair the
fundamental rights of jurisdiction reserved by the treaty for this
Government. It is an obligation imposed on the United States precisely with
a view to enabling the Philippine Government the better to exercise its
residual authority. The offender has no interest in this clause of the
treaty beyond the right to demand that whoever is to try him should
proceed with reasonable dispatch. To say that failure on the part of the
United States to turn the offender over to the Philippine authorities
within ten days works as a forfeiture of the Philippine Government's
jurisdiction is a paradox. By the appellant's and the Solicitor General's
theory, this Government would be penalized by the fault of the other
signatory to the treaty over whose action it has no control. In effect, the idea
is not much unlike divesting a lender of the ownership to his property by
reason of the borrower's neglect to return it within the time promised. What
is more serious, offenses not purely military in character perpetrated in
military or naval reservations would be left unpunished where the military or
naval authorities in appropriate cases fail or refuse to act.
Partly for the reasons already shown, the plea of double jeopardy is
without any merit. If the court martial had no jurisdiction, jeopardy
could not have attached. This proposition is too well-established and
too well-known to need citation of authorities.
Even if it be granted that the court martial did have jurisdiction, the military
trial in the instant cases has not placed the appellant in jeopardy such as
would bar his prosecution for violation of the Philippine penal laws or, for
that matter, a second trial under the Articles of War. Although under Rev.
Stat. sec. 1342, art. 2, it has been held that a former trial may be pleaded
when there has been a trial for the offense, whether or not there has been a
sentence adjudged or the sentence has been disapproved (Dig. JAG [1912]
p. 167), the rule is and should be otherwise when the disapproval was made
in response to the defendant's plea based on lack of jurisdiction. (Ex
parte Castello, 8. F. 2nd., 283, 286.) In such case the former trial may not
be pleaded in bar in the second trial.
On the question of the sufficiency of the evidence in the case for falsification
of a private document, (which was the only case tried, in the six cases for
estafa the defendant having entered the plea of guilty), the court below
found that on March 11, 1948, the defendant submitted a voucher in which
he falsely made it appear that he was entitled to collect $100.46 from the
United States Army for services allegedly rendered, forging in said
document the signature of Captain Eaton J. Bowers, and that by these
fraudulent pretenses he succeeded in being paid the amount itemized.
As the lower court said, the defendant did not introduce any evidence to
disprove the above findings, confining himself to raising questions of law.
Other legal theories are urged in the appellant's brief but they were not
raised in the court below and, moreover, are obviously unmeritorious. It
suffices to say that on the facts charged and found by the court in case No.
1701 and established by the proof, the defendant was properly prosecuted
for falsification of a private document, even assuming, without deciding, that
they also constitute violation of other laws.
The judgment appealed from will be affirmed with the modification that the
maximum duration of the appellant's imprisonment shall not be more than
threefold the length of the time corresponding to the most severe of the
penalties, and that from the sentence as thus reduced there shall be
deducted one-half of the preventive imprisonment undergone by the
accused.
The appellant will pay the costs of both instances.
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo,
Bautista Angelo and Labrador, JJ., concur
GODOFREDO DIZON
vs.
THE COMMANDING GENERAL OF THE
PHILIPPINE RYUKUS COMMAND, UNITED
STATES ARMY
Porfirio V. Villaroman, Marcelo Mallari and Rachel Enriquez-Fidelino for
petitioner.
J. A. Wolfson for respondent.
First Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon
for the Solicitor General.
PARAS, J.:
On March 14, 1947, an Agreement was concluded between the Philippines
and the United States of America whereby the latter is authorized to occupy
and use certain portions of the Philippine territory as military bases and to
exercise jurisdiction over certain offenses committed within and outside said
bases. For an offense allegedly committed at the main storage area,
Philrycom Engineer Depot, United States Army, APO 900, located at
Quezon City, Philippines, the petitioner was prosecuted in and convicted by
a General Court Martial appointed by the Commanding General of the
Philippine-Ryukus Command of the United States Army and accordingly
sentenced, on March 4, 1948, to confinement at hard labor for five years.
In his petition for habeas corpus filed with this Court on March 24, 1948,
lastly amended by motion dated April 9, 1948, the petitioners contends that
the General Court Martial had no jurisdiction over the alleged offense which
was committed in a place not a base of the United States Army within the
meaning of the Agreement concerning military bases of March 14, 1947,
and that even assuming that the offense was committed in a base, said
Agreement is unconstitutional because it deprives the Philippine courts of
the jurisdiction over all offenses exclusively vested in them by Article VIII,
section 1, of the Constitution, and violates section 1 of Article III of the
Constitution guaranteeing to every person in the Philippines due process
and equal protection of the law.
There is no dispute that the main storage area in which the offense in
question is alleged to have been committed is located within a site in
Quezon City which has been used as headquarters by the Philippine-
Ryukus Command of the United States Army since before March 14, 1947,
when the Agreement between the Philippines and United States regarding
military bases was concluded. The bases granted to the United States
under the Agreement are specified and enumerated in Annex "A" and annex
"B" of said Agreement which, however, in its Article XXI provides that "the
United States shall retain the right to occupy temporary quarters and
installations now existing outside the bases mentioned in Annex A and
Annex B" (paragraph 1) and that "the terms of this Agreement pertaining to
bases shall be applicable to temporary quarters and installations referred to
in paragraph 1 of this article while they are so occupied by the armed forces
of the United States; provided, that offenses committed within the temporary
quarters and installations located within the present limits of the City of
Manila shall not be considered as offenses within the bases" (paragraph 3).
It is not pretended on the part of the respondent that the site in question is
included within any of the bases specific in Annex "A" and Annex "B". Hence
the same undoubtedly falls under the classification of temporary installations
provided for in Article XXI of the Agreement. Even so, as said temporary
installation is not located within the limits of the City of Manila, the terms of
the Agreement pertaining to bases are applicable thereto by virtue of the
provision of paragraph 3 of Article XXI already above quoted. Accordingly,
the offense in question falls under the jurisdiction of the United States as a
consequence of Article XIII of the Agreement which stipulates that "the
Philippines consents that the United States shall have the right to exercise
jurisdiction over . . . any offense committed by any person within any base
except where the offender and offended parties are both Philippine citizens
(not members of the armed forces of the United States on active duty) or
the offense is against the security of the Philippines . . ." (paragraph 1). It is
not insisted by the petitioner that his case comes under any of the exception
mentioned in this provision. This brings us to the constitutional point raised
by the petitioner.
In at least two recent cases (Raquiza vs. Bradford, 1 41 Off. Gaz., 626,
decided on September 13, 1945, and Tubb vs. Griess, 2 44 Off. Gaz., 2712,
decided on April 7, 1947), we applied the well-settled principles of
International Law that a foreign army allowed to march through a friendly
country or to be stationed in it, by permission of its government or
sovereign, is exempt from the civil and criminal jurisdiction of the place.
Counsel for the petitioner, admitting the correctness of our pronouncement,
does not contend that such exemption is an unconstitutional diminution or
deprivation of the jurisdiction of the Philippine courts, because by virtue of
section 3 of Article II of the Constitution, the generally accepted
principles of international law have been adopted as part of the law of
the Nation. In like manner, there would be not be an unconstitutional
derogation of the jurisdiction of the local courts if we are recognized the
immunities of foreign sovereigns and ministers.
Although already superfluous, we do not hesitate to hold that even in the
absence of an express declaration in the Constitution that the generally
accepted principles of international law are made a part of the law of the
Nation, we are bound to uphold the immunities above referred to. And this
should be true as long as the civilized world or majority of the
independent countries composing it still abide by the rules of the
international law, and as long as the Philippines continues, as it must
continue, to have an intercourse with such countries. We would be the
last to suppose that the farmers of the Constitution would ever intend to
impugn or disregard any international practice. "A nation would justify be
considered as violating its faith, although that faith might not be expressly
plighted, which should suddenly and without previous notice, exercise its
territorial powers in a manner not consonant to the usages and received
obligations of the civilized world." (The Schooner Exchange vs. McFaddon
and Others, 3 Law. ed., 287.)
Under the Agreement of March 14, 1947, the United States was given
express permission to establish military bases on certain portions of the
Philippine territory and to exercise jurisdiction over certain offenses. The
rights thus granted are no less than those conceded by the rule of
international law to "a foreign army allowed to march through a friendly
country or to be stationed in it, by permission of its government or
sovereign." For this reason, if for no other, the constitutional point raised by
the petitioner becomes untenable. The jurisdiction granted to the United
States under the Agreement may be wider than what is recognized by
international law, but the facts remains that the lesser right is fundamentally
as much a diminution of the jurisdiction of the Philippine courts as the
greater right. If the latter right were to be invoked in the absence of the
Agreement, there is every reason to state that:
The jurisdiction of the nation within its own territory is necessarily exclusive
and absolute. It is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source, would
imply a diminution of its sovereignty to the extent of the restriction,
and an investment of that sovereignty to the same extend in that power
which could impose such restriction. (The Schooner Exchange vs.
McFaddon and Others, 3 Law. ed., 287, 293.)
Thus in the most recent case of Miquiabas vs. Commanding General,
Philippine-Ryukus Command, United States Army,3 G.R. No. L-1988,
decided on February 24, 1948 (45 Off. Gaz., 3821), this Court enunciated
the principle that as a rule "the Philippines, being a sovereign nation,
has jurisdiction over all offenses committed within its territory, but it
may, by treaty or by agreement, consent that the United States or any
other foreign nation, shall exercise jurisdiction over certain offenses
committed within certain portions of said territory.
In further support of the Agreement in question, the argument may be
advanced that the Philippine Independence Act, approved by the United
States Congress on March 24, 1934, reserves to the United States the right
to have and acquire naval reservations and fueling stations in the
Philippines. (See section 10, in connection with section 5.) In the Joint
Resolution approved by the United States Congress on June 29, 1944, it
was provided (section 2) that "after negotiation with the President of
Commonwealth of the Philippines, or the President of the Philippine
Republic, the President of the United States is hereby authorized by such
means as he finds appropriate to withhold or to acquire and to retain such
bases, necessary appurtenances to such bases, and the rights incident
thereto, in addition to any provided for by the Act of March 24, 1934, as he
may deem necessary for the mutual protection of the Philippine Islands and
of the United States under the Philippine Independence Act was enlarged
by the Joint Resolution of June 29, 1944, so as to include not only naval
reservations and fueling stations but other military bases in the Philippines.
Indeed, in the Proclamation of Philippine Independence, it was recited that
"Whereas the Act of Congress approved March 24, 1934, known as the
Philippine Independence Act, directed that on the 4th day of July
immediately following a ten-year transitional period leading to the
independence of the Philippines the President of the United States of
America should by proclamation withdraw and surrender all rights of
possession, supervision, jurisdiction, control or sovereignty of the United
States of America in and over the territory and people of the
Philippines except certain reservations therein and thereafter authorized to
be made and on behalf of the United States of America should recognize
the independence of the Philippines, now therefore, I, Harry S. Truman,
President of the United States of America, acting under and by virtue of the
authority vested in me by the aforesaid Act of Congress, do proclaim that, in
accord with and subject to the reservations provided for in the pertinent
provisions of the existing acts of Congress, the United States of America
hereby withdraws and surrenders all rights of possession, supervision,
jurisdiction, control or sovereignty now existing and exercised by the United
States of America in and over the territory and people of the Philippines and
on behalf of the United States of America I do hereby recognize the
independence of the Philippines as a separate and self-governing nation
and acknowledge the authority and control over the same of the
Government instituted by the people thereof under the constitution now in
force. . ." (Emphasis supplied.) The emphasized portions of this declaration
in the Proclamation of the Philippine Independence plainly lead to the
conclusion that the withdrawal of the sovereignty of the United States
over the territory and people of the Philippines is subject to the right
of the United States to withhold and acquire such military bases as are
authorized, not only by the Philippine Independence Act of March 24,
1934, but also by the Joint Resolution of June 29, 1944. Hence the
acquisition of bases by the United States under the Agreement of March 14,
1944, cannot be constitutionally objectionable.
But the point we want to bring out is that, if bases may be validly granted to
the United States under the Constitution, there is no plausible reason while
the lesser attribute of the jurisdiction cannot be waived. From another point
of view, waiver of jurisdiction may well be considered as included within
the terms "necessary appurtenances to such bases, and the rights incident
thereto," appearing in the Joint Resolution of June 29, 1944, herein-above
already quoted.
Jurisdiction being validly waived in favor of the United States under the
Agreement in question, it follows that petitioner's contention regarding
alleged denial of due process and equal protection of the law becomes
unfounded.
The petition is therefore hereby denied, with costs against the petitioner. So
ordered.
Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Bayan v. Zamora, G.R. No. 138570, October 10,
2000
DECISION
(En Banc)
BUENA, J.:
I. THE FACTS
The Republic of the Philippines and the United States of America entered
into an agreement called the Visiting Forces Agreement (VFA). The
agreement was treated as a treaty by the Philippine government and was
ratified by then-President Joseph Estrada with the concurrence of 2/3 of the
total membership of the Philippine Senate.
The VFA defines the treatment of U.S. troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits, and further
defines the rights of the U.S. and the Philippine governments in the matter
of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Petitioners argued, inter alia, that the VFA violates 25, Article XVIII of the
1987 Constitution, which provides that foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate . . . and recognized as a treaty by the other
contracting State.
II. THE ISSUE
Was the VFA unconstitutional?
III. THE RULING
[The Court DISMISSED the consolidated petitions, held that the petitioners
did not commit grave abuse of discretion, and sustained the constitutionality
of the VFA.]
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities
in the country, unless the following conditions are sufficiently met, viz: (a) it
must be under a treaty; (b) the treaty must be duly concurred in by the
Senate and, when so required by congress, ratified by a majority of the
votes cast by the people in a national referendum; and (c) recognized as a
treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case
of the VFA. The concurrence handed by the Senate through Resolution No.
18 is in accordance with the provisions of the Constitution . . . the provision
in [in 25, Article XVIII] requiring ratification by a majority of the votes cast in
a national referendum being unnecessary since Congress has not required
it.
xxx xxx xxx
This Court is of the firm view that the phrase recognized as a
treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit the
VFA to the United States Senate for concurrence pursuant to its
Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are
to be given their ordinary meaning except where technical terms are
employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA
only as an executive agreement because, under international law, an
executive agreement is as binding as a treaty. To be sure, as long as the
VFA possesses the elements of an agreement under international law, the
said agreement is to be taken equally as a treaty.
xxx xxx xxx
The records reveal that the United States Government, through
Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the VFA. For as
long as the United States of America accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its obligations under the treaty,
there is indeed marked compliance with the mandate of the Constitution.
G.R. NO. L-24170 DECEMBER 16, 1968
ILLUH ASAALI, ET. AL
VS.
THE COMMISSIONER OF CUSTOMS
The policy relentlessly adhered to and unhesitatingly pursued to minimize, if
not to do away entirely, with the evil and corruption that smuggling brings in
its wake would be frustrated and set at naught if the action taken by
respondent Commissioner of Customs in this case, as affirmed by the Court
of Tax Appeals, were to be set aside and this appeal from the decision of the
latter were to succeed. Fortunately, the controlling principles of law do not
call for a contrary conclusion. It cannot be otherwise if the legitimate
authority vested in the government were not to be reduced to futility and
impotence in the face of an admittedly serious malady, that at times has
assumed epidemic proportions.
The principal question raised by petitioners, owners of five sailing vessels
and the cargo loaded therein declared forfeited by respondent
Commissioner of Customs for smuggling, is the validity of their interception
and seizure by customs officials on the high seas, the contention being
raised that importation had not yet begun and that the seizure was effected
outside our territorial waters.
Why such a plea could not be given the least credence without doing
violence to common sense and placing the law in disrepute would be
apparent from a statement of the case and the findings of facts as set forth
in the decision now under review, of the Court of Tax Appeals, dated
November 19, 1964, the opinion being penned by the late Associate Judge
Augusto M. Luciano.
His opinion starts thus: "This is an appeal from the decision of the Acting
Commissioner of Customs in Customs Case No. 113, dated September 26,
1961, (Jolo Seizure Identification Cases Nos. 38, 39, 40, 41 & 42) decreeing
the forfeiture of five (5) sailing vessels (kumpits) named 'Iroc-Iroc,' 'Lahat-
lahat,' 'Liberal Wing III,' 'Sulu Area Command,' and 'Business,' with their
respective cargoes of blue seal cigarettes and rattan chairs for violation of
Section 1363(a) of the Revised Administrative Code and Section 20 of
Republic Act No. 426 in relation with Section 1363(f) of the Revised
Administrative Code."
The facts according to the above opinion "are not controverted." Thus: "It
appears that on September 10, 1950, at about noon time, a customs patrol
team on board Patrol Boat ST-23 intercepted the five (5) sailing vessels in
question on the high seas, between British North Borneo and Sulu while
they were heading towards Tawi-tawi, Sulu. After ordering the vessels to
stop, the customs officers boarded and found on board, 181 cases of
'Herald' cigarettes, 9 cases of 'Camel' cigarettes, and some pieces of rattan
chairs. The sailing vessels are all of Philippine registry, owned and manned
by Filipino residents of Sulu, and of less than thirty (30) tons burden. They
came from Sandakan, British North Borneo, but did not possess any permit
from the Commissioner of Customs to engage in the importation of
merchandise into any port of the Sulu sea, as required by Section 1363(a)
of the Revised Administrative Code. Their cargoes were not covered by the
required import license under Republic Act No. 426, otherwise known as the
Import Control Law."2
Respondent Commissioner of Customs, as noted at the outset, affirmed the
decision rendered by the Collector of Customs of Jolo, who found cause for
forfeiture under the law of the vessels and the cargo contained therein. He
was, as also already made known, sustained by the Court of Tax Appeals.
Hence this petition for review.
The first two errors assigned by petitioners would impugn the jurisdiction of
the Bureau of Customs to institute seizure proceedings and thereafter to
declare the forfeiture of the vessels in question and their cargo. They would
justify their stand thus: "In the light of the fact that the vessels involved with
the articles laden therein were apprehended and seized on the high seas,
beyond the territorial waters of the Philippines, the said vessels could not
have touched any place or port in the Philippines, whether a port or place of
entry or not, consequently, the said vessels could not have been engaged in
the importation of the articles laden therein into any Philippine port or place,
whether a port or place of entry or not, to have incurred the liability of
forfeiture under Section 1363(a) of the Revised Administrative Code."3
Such a contention was advanced by petitioners before the Court of Tax
Appeals. It met the repudiation that it deserved. Thus: "We perfectly see the
point of the petitioners but considering the circumstances surrounding the
apprehension of the vessels in question, we believe that Section 1363(a) of
the Revised Administrative Code should be applied to the case at bar. It has
been established that the five vessels came from Sandakan, British North
Borneo, a foreign port, and when intercepted, all of them were heading
towards Tawi-tawi, a domestic port within the Sulu sea. Laden with
foreign manufactured cigarettes, they did not possess the import license
required by Republic Act No. 426, nor did they carry a permit from the
Commissioner of Customs to engage in importation into any port in the Sulu
sea. Their course announced loudly their intention not merely to skirt
along the territorial boundary of the Philippines but to come within our
limits and land somewhere in Tawi-tawi towards which their prows
were pointed. As a matter of fact, they were about to cross our aquatic
boundary but for the intervention of a customs patrol which, from all
appearances, was more than eager to accomplish its mission."
The sense of realism and the vigorous language employed by the late
Judge Luciano in rejecting such a plea deserve to be quoted. Thus: "To
entertain even for a moment the thought that these vessels were probably
not bound for a Philippine port would be too much a concession even for a
simpleton or a perennial optimist. It is quite irrational for Filipino sailors
manning five Philippine vessels to sneak out of the Philippines and go
to British North Borneo, and come a long way back laden with highly
taxable goods only to turn about upon reaching the brink of our
territorial waters and head for another foreign port."5
1. We find no plausible reason not to accept in its entirety such a conclusion
reached by the Court of Tax Appeals. Nor, even if the persuasive element in
the above view were not so overwhelming, could we alter the decisive facts
as found by it. For it is now beyond question that its finding, if supported by
substantial evidence, binds us, only questions of law being for us to resolve.
Where the issue raised belongs to the former category, we lack the power of
review.
Moreover, for understandable reasons, we feel extreme reluctance to
substitute our own discretion for that of the Court of Tax Appeals in its
appreciation of the relevant facts and its appraisal of their significance. As
we had occasion to state in a relatively recent decision: "Nor as a matter of
principle is it advisable for this Court to set aside the conclusion reached by
an agency such as the Court of Tax Appeals which is, by the very nature of
its function, dedicated exclusively to the study and consideration of tax
problems and has necessarily developed an expertise on the subject, ...,
there has been an abuse or improvident exercise of its authority."
2. We thus could rest our decision affirming that of the Court of Tax Appeals
on the above consideration.
It might not be amiss however to devote some degree of attention to the
legal points raised in the above two assignment of errors, discussed jointly
by petitioners-appellants, alleging the absence of jurisdiction, the
deprivation of property without due process of law and the abatement of
liability consequent upon the repeal of Republic Act No. 426. Not one of the
principles of law relied upon suffices to call for reversal of the action taken
by the respondent Commissioner of Customs, even if the facts presented a
situation less conclusive against the pretension of petitioners-appellants.
From the apprehension and seizure of the vessels in question on the high
seas beyond the territorial waters of the Philippines, the absence of
jurisdiction of Commissioner of Customs is predicated. Such contention of
petitioners-appellants is without merit.
It is unquestioned that all vessels seized are of Philippine registry. The
Revised Penal Code leaves no doubt as to its applicability and
enforceability not only within the Philippines, its interior waters and
maritime zone, but also outside of its jurisdiction against those
committing offense while on a Philippine ship ... The principle of law
that sustains the validity of such a provision equally supplies a firm
foundation for the seizure of the five sailing vessels found thereafter
to have violated the applicable provisions of the Revised
Administrative Code.
Moreover, it is a well settled doctrine of International Law that goes back to
Chief Justice Marshall's opinion in Church v. Hubbart, an 1804 decision, that
a state has the right to protect itself and its revenues, a right not
limited to its own territory but extending to the high seas. In the
language of Chief Justice Marshall: "The authority of a nation within its own
territory is absolute and exclusive. The seizure of a vessel within the range
of its cannon by a foreign force is an invasion of that territory, and is a
hostile act which it is its duty to repel. But its power to secure itself from
injury may certainly be exercised beyond the limits of its territory."
The question asked in the brief of petitioners-appellants as to whether the
seizure of the vessels in question and the cargoes on the high seas and
thus beyond the territorial waters of the Philippines was legal must be
answered in the affirmative.
4. The next question raised is the alleged denial of due process arising from
such forfeiture and seizure. The argument on the alleged lack of validity of
the action taken by the Commissioner of Customs is made to rest on the
fact that the alleged offense imputed to petitioners-appellants is a violation
of Section 1363(a) and not Section 1363(f). The title of Section 1363 is
clear, "Property subject to forfeiture under customs laws." The first
subsection thereof, (a) cover any vessel including cargo unlawfully engaged
in the importation of merchandise except a port of entry. Subsection (f)
speaks of any merchandise of any prohibited importation, the importation of
which is effected or attempted contrary to law and all other merchandise
which in the opinion of the Collector of Customs have been used are or
were intended to be used as instrument in the importation or exportation of
the former.
From the above recital of the legal provisions relied upon, it would appear
most clearly that the due process question raised is insubstantial. Certainly,
the facts on which the seizure was based were not unknown to petitioners-
appellants. On those facts the liability of the vessels and merchandise under
the above terms of the statute would appear to be undeniable. The action
taken then by the Commissioner of Customs was in accordance with law.
How could there be a denial of due process? There was nothing arbitrary
about the manner in which such seizure and forfeiture were effected. The
right to a hearing of petitioners-appellants was respected. They could not
have been unaware of what they were doing. It would be an affront to
reason if under the above circumstances they could be allowed to raise in
all seriousness a due process question. Such a constitutional guaranty,
basic and fundamental, certainly should not be allowed to lend itself as an
instrument for escaping a liability arising from one's own nefarious acts.
5. Petitioners-appellants would further assail the validity of the action taken
by the respondent Commissioner of Customs by the plea that the repeal of
Republic Act No. 426 abated whatever liability could have been incurred
thereunder. This argument raised before the Court of Tax Appeals was
correctly held devoid of any persuasive force. The decision under review
cited our opinion in Golay-Buchel & Cie v. Commissioner of Customs 11 to
the effect that the expiration of the Import Control Law "did not produce the
effect of declaring legal the importation of goods which were illegally
imported and the seizure and forfeiture thereof as ordered by the Collector
of Customs illegal or null and void."
Roxas v. Sayoc 12 announced that principle earlier. Thus: "Herein, we are
concerned with the effect of the expiration of a law, not with the abrogation
of a law, and we hold the view that once the Commissioner of Customs has
acquired jurisdiction over the case, the mere expiration of Republic Act No.
650 will not divest him of his jurisdiction thereon duly acquired while said
law was still in force. In other words, we believe that despite the expiration
of Republic Act No. 650 the Commissioner of Customs retained his
jurisdiction over the case and could continue to take cognizance thereof
until its final determination, for the main question brought in by the appeal
from the decision of the Collector of Customs was the legality or illegality of
the decision of the Collector of Customs, and that question could not have
been abated by the mere expiration of Republic Act No. 650. We firmly
believe that the expiration of Republic Act No. 650 could not have produced
the effect (1) of declaring legal the importation of the cotton counterpanes
which were illegally imported, and (2) of declaring the seizure and forfeiture
ordered by the Collector of Customs illegal or null and void; in other words it
could not have the effect of annulling or setting aside the decision of the
Collector of Customs which was rendered while the law was in force and
which should stand until it is revoked by the appellate tribunal."
As late as 1965, in Bombay Dept. Store v. Commissioner of Customs, 13 we
had occasion to reaffirm the doctrine in the above two decisions, the present
Chief Justice, speaking for the Court, stating that such expiration of the
period of effectivity of Republic Act No. 650 "did not have the effect of
depriving the Commissioner of Customs of the jurisdiction, acquired by him
prior thereto, to act on cases of forfeiture pending before him, which are in
the nature of proceeding in rem...."
It is thus most evident that the Court of Tax Appeals had not in any wise
refused to adhere faithfully to controlling legal principles when it sustained
the action taken by respondent Commissioner of Customs. It would be a
reproach and a reflection on the law if on the facts as they had been shown
to exist, the seizure and forfeiture of the vessels and cargo in question were
to be characterized as outside the legal competence of our government and
violative of the constitutional rights of petitioners-appellants. Fortunately, as
had been made clear above, that would be an undeserved reflection and an
unwarranted reproach. The vigor of the war against smuggling must not be
hampered by a misreading of international law concepts and a misplaced
reliance on a constitutional guaranty that has not in any wise been infringed.
WHEREFORE, the decision of respondent Court of Tax Appeals of
November 19, 1964, is affirmed. With costs against petitioners-appellants.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro and Capistrano, JJ., concur.
LAURITZEN V. LARSEN
345 U.S. 571 (1953)
FACTS
-Danish seaman brought suit under Jones Act to recover for injuries on the
Danish ship, the Randa, while docked in Cuba.
-Larsen based assertion of federal jurisdiction on board reading of Jones
Act, that encompassed all sailors and on Lauritzen companys significant
NY business contracts.
Statute stated: Any seaman who shall suffer personal injury in the course of
his employment may, at his election, maintain an action for damages at law,
with the right of trial by jury, and in such action all statutes of the United
States modifying or extending the common-law right or remedy in cases of
personal injury to railway employees shall apply.
ISSUE
Should the Danish law apply or should US law apply?

HOLDING
Danish Law should apply.
RULES
Law of the Flag- Each state under international law may determine for itself
the conditions on which it will grant its nationality to a merchant ship,
thereby accepting responsibility for it and acquiring authority over it.
-Nationality is evidenced to the world by the ships papers and its flag.
-Law of the flag supersedes the territorial principle (even for criminal
jurisdiction of personnel of a merchant ship), because it is deemed to be a
part of the territory of that sovereignty (whose flag it flies), and not to lose
that character when in navigable waters within the territorial limits of
another sovereignty.
-All matters of discipline and all things done on board which affected
only the vessel or those belonging to it, and do not involve the peace
or dignity of the country or the ports tranquility, should be left by the
local government to be dealt with by the authorities of the nation to
which the vessel belongs as the laws of that nation or the interests of
its commerce requires.
BENZ v. COMPANIA NAVIERA HIDALGO, (1957)
Argued: March 6, 1957 Decided: April 8, 1957
The Labor Management Relations Act of 1947 does not apply to a
controversy involving damages resulting from the picketing of a foreign ship
operated entirely by foreign seamen under foreign articles while the vessel
is temporarily in an American port, though American unions to which the
foreign seamen did not belong participated in the picketing; and the Act
therefore does not preclude a remedy under state law for such damages.
Pp. 138-147.
(a) Congress could have made the Labor Management Relations Act
applicable to wage disputes arising on foreign vessels between nationals of
other countries when the vessel comes within territorial waters of the United
States; but Congress did not do so. Pp. 142-147.
(b) The cases of Sailors' Union of the Pacific, 92 N. L. R. B. 547, and Norris
Grain Co. v. Seafarers' International Union, 232 Minn. 91, 46 N. W. 2d 94,
are inapposite to the question for decision here. P. 143, n. 5.
(c) An intent on the part of Congress to change the contractual agreement
made by the foreign shipowner and the foreign seamen in this case cannot
be read into the Labor Management Relations Act. Pp. 146-147.
233 F.2d 62, affirmed.
Kneland C. Tanner argued the cause for petitioners. With him on the brief
was Richard R. Carney.
John D. Mosser argued the cause for respondent. With him on the brief was
Lofton L. Tatum.
MR. JUSTICE CLARK delivered the opinion of the Court.
While the petitioners in this diversity case present several questions, the
sole one decided is whether the Labor Management Relations Act of
1947 1 applies to a [353 U.S. 138, 139] controversy involving damages
resulting from the picketing of a foreign ship operated entirely by foreign
seamen under foreign articles while the vessel is temporarily in an American
port. We decide that it does not, and therefore do not reach other questions
raised by the parties.
The S. S. Riviera on September 3, 1952, sailed into harbor at Portland,
Oregon, for repairs, to load a cargo of wheat, and to complete an insurance
survey. It was owned by respondent, a Panamanian corporation, and sailed
under a Liberian flag. The crew was made up entirely of nationals of
countries other than the United States, principally German and British. They
had agreed to serve on a voyage originating at Bremen, Germany, for a
period of two years, or until the vessel returned to a European port. A British
form of articles of agreement was opened at Bremen. The conditions
prescribed by the British Maritime Board were incorporated into the
agreement, including wages and hours of employment, all of which were
specifically set out. The crew further agreed to obey all lawful commands of
the Master of the Riviera in regard to the ship, the stores, and the cargo,
whether on board, in boats, or on shore.
On or about September 9, 1952, the members of the crew went on strike on
board the vessel and refused to obey the orders of the Master. They
demanded that their term of service be reduced, their wages be increased,
and more favorable conditions of employment be granted. 2 [353 U.S. 138,
140] They refused to work, demanding their back pay and transportation or
its cost to their ports of engagement. The Master told the crew to continue
their work or they would be discharged. When they declined to work he
discharged them and ordered them to leave the ship, which they refused to
do. This situation continued until September 26, 1952, when the striking
crewmen left the vessel pursuant to an order of the United States District
Court entered in a possessory libel filed by the respondent. The crew had
picketed the vessel from September 9, 1952, when the strike began, until
September 26, when they left the ship. On September 15, 1952, they had
designated the Sailors' Union of the Pacific as their collective bargaining
representative. The striking crew or others acting for them continued the
picketing from September 26, 1952, until they withdrew the picket line on
October 13, 1952. The Sailors' Union of the Pacific began picketing the
Riviera on October 14 and continued to do so until restrained by an
injunction issued in an action for injunctive relief and damages filed against
it and its principal representatives by the respondent. Two days later Local
90 of the National Organization of Masters, Mates and Pilots of America set
up a picket line at the Riviera which was maintained until December 8,
1952. This picketing was stopped by a writ issued against that union and its
representatives in the second action for injunction and damages filed by
respondent and consolidated here. On December 10, 1952, another picket
line was established at the vessel. It was maintained this time by the Atlantic
and Gulf Coast District, S. I. U., 3 until it too was enjoined on December 12
in a third action filed by the respondent in which the prayer likewise was for
an injunction [353 U.S. 138, 141] and damages. These three cases have
been consolidated for consideration here. All of the picketing was peaceful.
The ship sailed in December 1952. In June 1953, the injunction orders were
vacated on appeal to the Court of Appeals and were ordered dismissed as
moot. The cases were returned to the District Court for trial on the damage
claims. 205 F.2d 944. The ship had not returned to an American port at the
time of trial in 1954. At the trial the court found that the purpose of the
picketing "was to compel the [respondent] to re-employ" the striking
members of the crew for a shorter term and at more favorable wage rates
and conditions than those agreed upon in the articles. The court further
found that as a result of the picketing the employees of the firms repairing
and loading the vessel refused to cross the picket line and the ship was
forced to stand idly by without repairs or cargo, all to the damage of
respondent. The unions and their representatives contended that the trial
court was without jurisdiction because the Labor Management Relations Act
had pre-empted the field. However, the trial court entered judgment for
damages against the three unions as well as their principal representatives.
The judgments were based on a common-law theory that the picketing was
for an unlawful purpose under Oregon law. The court found that
respondent had no remedy under the Labor Management Relations Act
because that Act "is concerned solely with the labor relations of
American workers between American concerns and their employees in
the United States, and it is not intended to, nor does it cover a dispute
between a foreign ship and its foreign crew." The Court of Appeals
thought that United Construction Workers v. Laburnum Construction
Corp., 347 U.S. 656 (1954), governed, but that Oregon law did not permit
recovery against the unions since they were unincorporated [353 U.S. 138,
142] associations. 233 F.2d 62. 4 This, in effect, left the judgments
standing against the individual representatives of the unions, the petitioners
here. We granted certiorari in order to settle the important question of
jurisdiction posed. 352 U.S. 889 .
It should be noted at the outset that the dispute from which these actions
sprang arose on a foreign vessel. It was between a foreign employer and a
foreign crew operating under an agreement made abroad under the laws of
another nation. The only American connection was that the controversy
erupted while the ship was transiently in a United States port and
American labor unions participated in its picketing.
It is beyond question that a ship voluntarily entering the territorial limits of
another country subjects itself to the laws and jurisdiction of that country.
Wildenhus's Case, 120 U.S. 1 (1887). The exercise of that jurisdiction is not
mandatory but discretionary. Often, because of public policy or for other
reasons, the local sovereign may exert only limited jurisdiction and
sometimes none at all. Cunard S. S. Co. v. Mellon, 262 U.S. 100 (1923). It
follows that if Congress had so chosen, it could have made the Act
applicable to wage disputes arising on foreign vessels between nationals of
other countries when the vessel comes within our territorial waters. The
question here therefore narrows to one of intent of the Congress as to the
coverage of the Act.
The parties point to nothing in the Act itself or its legislative history that
indicates in any way that the Congress intended to bring such disputes
within the coverage of the Act. Indeed the District Court found to the
contrary, specifically stating that the Act does not [353 U.S. 138,
143] "cover a dispute between a foreign ship and its foreign crew." The
Court of Appeals, though not passing on the question, noted that "It may
well be that American laws should not be construed to apply, without some
more explicit Congressional indication than we are able to find in the
National Labor Relations Act, as amended, to situations with as many points
of foreign contact as the situation at bar." 233 F.2d, at 65.
Our study of the Act leaves us convinced that Congress did not fashion it to
resolve labor disputes between nationals of other countries operating ships
under foreign laws. 5 The whole background of the Act is concerned
with [353 U.S. 138, 144] industrial strife between American employers
and employees. In fact, no discussion in either House of Congress has
been called to our attention from the thousands of pages of legislative
history that indicates in the least that Congress intended the coverage of the
Act to extend to circumstances such as those posed here. It appears not to
have even occurred to those sponsoring the bill. The Report made to the
House by its Committee on Education and Labor and presented by the
coauthor of the bill, Chairman Hartley, stated that "the bill herewith reported
has been formulated as a bill of rights both for American workingmen and
for their employers." The report declares further that because of the
inadequacies of legislation "the American workingman has been deprived of
his dignity as an individual," and that it is the purpose of the bill to correct
these inadequacies. (Emphasis added.) H. R. Rep. No. 245, 80th Cong., 1st
Sess. 4. What was said inescapably describes the boundaries of the Act as
including only the workingmen of our own country and its possessions.
The problem presented is not a new one to the Congress. In the Seamen's
Act of March 4, 1915, 38 Stat. 1164, the Congress declared it unlawful to
pay a seaman wages in advance and specifically declared the prohibition
applicable to foreign vessels "while in waters of the United States." Id., at
1169, as amended, 46 U.S.C. 599 (e). In Sandberg v. McDonald, 248 U.S.
185 (1918), this Court construed the Act as not covering advancements
"when the contract and payment were made in a foreign country where the
law sanctioned such contract and payment. . . . Had Congress [353 U.S.
138, 145] intended to make void such contracts and payments a few words
would have stated that intention, not leaving such an important regulation to
be gathered from implication." Id., at 195. The Court added that "such
sweeping and important requirement is not found specifically made in the
statute." Ibid. See also Neilson v. Rhine Shipping Co., 248 U.S. 205 (1918).
In 1920 Congress amended 4 of the Seamen's Act of 1915, and granted to
every seaman on a vessel of the United States the right to demand one-half
of his then earned wages at every port the vessel entered during a voyage.
41 Stat. 1006, 46 U.S.C. 597. The section was made applicable to "seamen
on foreign vessels while in harbors of the United States, and the courts of
the United States shall be open to such seamen for its enforcement." This
Court in Strathearn Steamship Co. v. Dillon, 252 U.S. 348 (1920), upheld
the applicability of the section to a British seaman on a British vessel under
British articles. The Court pointed out:
"taking the provisions of the act as the same are written, we think it plain
that it manifests the purpose of Congress to place American and foreign
seamen on an equality of right in so far as the privileges of this section are
concerned, with equal opportunity to resort to the courts of the United
States for the enforcement of the act. Before the amendment . . . the right to
recover one-half the wages could not be enforced in face of a contractual
obligation to the contrary. Congress, for reasons which it deemed sufficient,
amended the act so as to permit the recovery upon the conditions named in
the statute." Id., at 355.
In 1928, Jackson v. S. S. Archimedes, 275 U.S. 463 , was decided by this
Court. It involved advance payments made by a British vessel to foreign
seamen before leaving [353 U.S. 138, 146] Manchester on her voyage to
New York and return. It was contended that the advances made in
Manchester were illegal and void. That there was "no intention to extend the
provisions of the statute," the Court said, "to advance payments made by
foreign vessels while in foreign ports, is plain. This Court had pointed out in
the Sandberg case [supra] that such a sweeping provision was not
specifically made in the statute . . . ." Id., at 470. Soon thereafter several
proposals were made in Congress designed to extend the coverage of the
Seamen's Act so as to prohibit advancements made by foreign vessels in
foreign ports. A storm of diplomatic protest resulted. Great Britain, Italy,
Sweden, Norway, Denmark, the Netherlands, Germany, and Canada all
joined in vigorously denouncing the proposals. 6 In each instance the bills
died in Congress.
And so here such a "sweeping provision" as to foreign applicability was not
specified in the Act. 7 The seamen agreed in Germany to work on the
foreign ship under British articles. We cannot read into the Labor
Management Relations Act an intent to change the contractual [353 U.S.
138, 147] provisions made by these parties. For us to run interference in
such a delicate field of international relations there must be present the
affirmative intention of the Congress clearly expressed. It alone has the
facilities necessary to make fairly such an important policy decision where
the possibilities of international discord are so evident and retaliative action
so certain. We, therefore, conclude that any such appeal should be directed
to the Congress rather than the courts.
Affirmed.
McCULLOCH v. SOCIEDAD NACIONAL, (1963)
No. 107
MR. JUSTICE CLARK delivered the opinion of the Court.
These companion cases, involving the same facts, question the coverage of
the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 541,
29 U.S.C. 151 et seq. A corporation organized and doing business in the
United States beneficially owns seagoing vessels which make regular
sailings between United States, Latin American and other ports transporting
the corporation's products and other supplies; each of the vessels is legally
owned by a foreign subsidiary of the American corporation, flies the flag of a
foreign nation, carries a foreign crew and has other contacts with the nation
of its flag. The question arising is whether the Act extends to the crews
engaged in such a maritime operation. The National Labor Relations Board
in a representation proceeding on the application of the National Maritime
Union held that it does and ordered an election. 134 N. L. R. B. 287. The
vessels' foreign owner sought to enjoin the Board's Regional Director from
holding the election, but the District Court for the Southern District of New
York denied the requested relief. 200 F. Supp. 484. The Court of Appeals for
the Second Circuit reversed, holding that the Act did not apply to the
maritime operations here and thus the Board had no power to direct the
election. 300 F.2d 222. The N. M. U. had intervened in the proceeding, and
it petitioned for a writ of certiorari (No. 93), as did the Regional Director (No.
91). Meanwhile, the United States District Court for the District of Columbia,
on application of the foreign bargaining agent of the vessels' crewmen,
enjoined the Board members in No. 107. 201 F. Supp. 82. We granted each
of the three petitions for certiorari, 370 U.S. 915 , and consolidated the
cases for argument. 1 [372 U.S. 10, 13]
We have concluded that the jurisdictional provisions of the Act do not extend
to maritime operations of foreign-flag ships employing alien seamen.
I.
The National Maritime Union of America, AFL-CIO, filed a petition in 1959
with the National Labor Relations Board seeking certification under 9 (c) of
the Act, 29 U.S.C. 159 (c), as the representative of the unlicensed seamen
employed upon certain Honduran-flag vessels owned by Empresa
Hondurena de Vapores, S. A., a Honduran corporation. The petition was
filed against United Fruit Company, a New Jersey corporation which was
alleged to be the owner of the majority of Empresa's stock. Empresa
intervened and on hearing it was shown that United Fruit owns all of its
stock and elects its directors, though no officer or director of Empresa is an
officer or director of United Fruit and all are residents of Honduras. In turn
the proof was that United Fruit is owned by citizens of the United States and
maintains its principal office at Boston. Its business was shown to be the
cultivation, gathering, transporting and sale of bananas, sugar, cacao and
other tropical produce raised in Central and South American countries and
sold in the United States.
United Fruit maintains a fleet of cargo vessels which it utilizes in this trade.
A portion of the fleet consists of 13 Honduran-registered vessels operated
by Empresa and time chartered to United Fruit, which vessels were included
in National Maritime Union's representation proceeding. The crews on these
vessels are recruited by Empresa in Honduras. They are Honduran citizens
(save one Jamaican) and claim that country as their [372 U.S. 10,
14] residence and home port. The crew are required to sign Honduran
shipping articles, and their wages, terms and condition of employment,
discipline, etc., are controlled by a bargaining agreement between Empresa
and a Honduran union, Sociedad Nacional de Marineros de Honduras.
Under the Honduran Labor Code only a union whose "juridic personality" is
recognized by Honduras and which is composed of at least 90% of
Honduran citizens can represent the seamen on Honduran-registered ships.
The N. M. U. fulfills neither requirement. Further, under Honduran law
recognition of Sociedad as the bargaining agent compels Empresa to deal
exclusively with it on all matters covered by the contract. The current
agreement in addition to recognition of Sociedad provides for a union shop,
with a no-strike-or-lockout provision, and sets up wage scales, special
allowances, maintenance and cure provisions, hours of work, vacation time,
holidays, overtime, accident prevention, and other details of employment as
well.
United Fruit, however, determines the ports of call of the vessels, their
cargoes and sailings, integrating the same into its fleet organization. While
the voyages are for the most part between Central and South American
ports and those of the United States, the vessels each call at regular
intervals at Honduran ports for the purpose of taking on and discharging
cargo and, where necessary, renewing the ship's articles.
II.
The Board concluded from these facts that United Fruit operated a single,
integrated maritime operation within which were the Empresa vessels,
reasoning that United Fruit was a joint employer with Empresa of the
seamen covered by N. M. U.'s petition. Citing its own West India Fruit &
Steamship Co. opinion, 130 N. L. R. B. 343 (1961), it concluded that the
maritime [372 U.S. 10, 15] operations involved substantial United States
contacts, outweighing the numerous foreign contacts present. The Board
held that Empresa was engaged in "commerce" within the meaning of 2 (6)
of the Act and that the maritime operations "affected commerce" within 2
(7), meeting the jurisdictional requirement of 9 (c) (1). It therefore ordered
an election to be held among the seamen signed on Empresa's vessels to
determine whether they wished N. M. U., Sindicato Maritimo Nacional de
Honduras, or no union to represent them.
As we have indicated, both Empresa and Sociedad brought suits in Federal
District Courts to prevent the election, Empresa proceeding in New York
against the Regional Director - Nos. 91 and 93 - and Sociedad in the[372
U.S. 10, 16] District of Columbia against the members of the Board - No.
107. In Nos. 91 and 93 the jurisdiction of the District Court was challenged
on two grounds: first, that review of representation proceedings is limited by
9 (d) of the Act, 29 U.S.C. 159 (d), to indirect review as part of a petition for
enforcement or review of an order entered under 10 (c), 29 U.S.C. 160 (c);
and, second, that the Board members were indispensable parties to the
action. The challenge based upon 9 (d) was not raised or adjudicated in
Sociedad's action against the Board members - No. 107 - and the
indispensable-parties challenge is of course not an issue. Sociedad is not a
party in Nos. 91 and 93, although the impact of the Board order - the same
order challenged in No. 107 - is felt by it. That order has the effect of
canceling Sociedad's bargaining agreement with Empresa's seamen, since
Sociedad is not on the ballot called for by the Board. No. 107, therefore,
presents the question in better perspective, and we have chosen it as the
vehicle for our adjudication on the merits. This obviates our passing on the
jurisdictional questions raised in Nos. 91 and 93, since the disposition of
those cases is controlled by our decision in No. 107.
We are not of course precluded from reexamining the jurisdiction of the
District Court in Sociedad's action, merely because no challenge was made
by the parties. Mitchell v. Maurer, 293 U.S. 237, 244 (1934). Having
examined the question whether the District Court had jurisdiction at the
instance of Sociedad to enjoin the Board's order, we hold that the action
falls within the limited exception fashioned in Leedom v. Kyne, 358 U.S.
184 (1958). In that case judicial intervention was permitted since the
Board's order was "in excess of its delegated powers and contrary to a
specific prohibition in the Act." Id., at 188. While here the Board has violated
no specific prohibition in the Act, the overriding consideration is that the
Board's assertion of power to determine [372 U.S. 10, 17] the
representation of foreign seamen aboard vessels under foreign flags has
aroused vigorous protests from foreign governments and created
international problems for our Government. Important interests of the
immediate parties are of course at stake. But the presence of public
questions particularly high in the scale of our national interest because of
their international complexion is a uniquely compelling justification for
prompt judicial resolution of the controversy over the Board's power. No
question of remotely comparable urgency was involved in Kyne, which was
a purely domestic adversary situation. The exception recognized today is
therefore not to be taken as an enlargement of the exception in Kyne.
III.
Since the parties all agree that the Congress has constitutional power to
apply the National Labor Relations Act to the crews working foreign-
flag ships, at least while they are in American waters, The Exchange, 7
Cranch 116, 143 (1812); Wildenhus's Case, 120 U.S. 1, 11 (1887); Benz v.
Compania Naviera Hidalgo, 353 U.S. 138, 142 (1957), we go directly to the
question whether Congress exercised that power. Our decision on this point
being dispositive of the case, we do not reach the other questions raised by
the parties and the amici curiae.
The question of application of the laws of the United States to foreign-flag
ships and their crews has arisen often and in various contexts. As to the
application of the National Labor Relations Act and its amendments, the
Board has evolved a test relying on the relative weight of a ship's foreign as
compared with its American contacts. That test led the Board to conclude
here, as in West India Fruit & Steamship Co., supra, that the foreign-flag
ships' activities affected "commerce" and brought [372 U.S. 10, 18] them
within the coverage of the Act. Where the balancing of the vessel's contacts
has resulted in a contrary finding, the Board has concluded that the Act
does not apply.
Six years ago this Court considered the question of the application of the
Taft-Hartley amendments to the Act in a suit for damages "resulting from the
picketing of a foreign ship operated entirely by foreign seamen under
foreign articles while the vessel [was] temporarily in an American port."
Benz v. Compania Naviera Hidalgo, supra, at 139. We held that the Act did
not apply, searching the language and the legislative history and concluding
that the latter "inescapably describes the boundaries of the Act as including
only the workingmen of our own country and its possessions." Id., at 144.
Subsequently, in Marine Cooks & Stewards v. Panama S. S. Co., 362 U.S.
365 (1960), we held that the Norris-LaGuardia Act, 29 U.S.C. 101, deprived
a Federal District Court of jurisdiction to enjoin picketing of a foreign-flag
ship, specifically limiting the holding to the jurisdiction of the court "to issue
the injunction it did under the circumstances shown." Id., at 372. That case
cannot be regarded as limiting the earlier Benz holding, however, since no
question as to "whether the picketing . . . was tortious under state or federal
law" was either presented or decided. Ibid. Indeed, the Court specifically
noted that the application of the Norris-LaGuardia Act "to curtail and
regulate the jurisdiction of courts" differs from the application of the Taft-
Hartley Act "to regulate the conduct of people engaged in labor disputes."
Ibid.; see Comment, 69 Yale L. J. 498, 523-525 (1960).
It is contended that this case is nonetheless distinguishable from Benz in
two respects. First, here there is a fleet of vessels not temporarily in United
States waters but operating in a regular course of trade between foreign
ports and those of the United States; and, second, the foreign owner of the
ships is in turn owned by an American corporation. We note that both of
these points rely on additional American contacts and therefore necessarily
presume the validity of the "balancing of contacts" theory of the Board. But
to follow such a suggested procedure to the ultimate might require that the
Board inquire into the internal discipline and order of all foreign vessels
calling at American ports. Such activity would raise considerable
disturbance not only in the field of maritime law but in our international
relations as well. In addition, enforcement of Board orders would project the
courts into application of the sanctions of the Act to foreign-flag ships on a
purely ad hoc weighing of contacts basis. This would inevitably lead to
embarrassment in foreign affairs and be entirely infeasible in actual practice.
The question, therefore, appears to us more basic; namely, whether the
Act as written was intended to have any application to foreign
registered vessels employing alien seamen.
Petitioners say that the language of the Act may be read literally as
including foreign-flag vessels within its coverage. But, as in Benz, they
have been unable to point to any specific language in the Act itself or
in its extensive legislative history that reflects such a congressional
intent. Indeed, the opposite is true as we found in Benz, where [372
U.S. 10, 20] we pointed to the language of Chairman Hartley
characterizing the Act as "a bill of rights both for American
workingmen and for their employers." 353 U.S., at 144. We continue to
believe that if the sponsors of the original Act or of its amendments
conceived of the application now sought by the Board they failed to
translate such thoughts into describing the boundaries of the Act as
including foreign-flag vessels manned by alien crews. Therefore, we find no
basis for a construction which would exert United States jurisdiction over
and apply its laws to the internal management and affairs of the vessels
here flying the Honduran flag, contrary to the recognition long afforded them
not only by our State Department [372 U.S. 10, 21] but also by the
Congress. In addition, our attention is called to the well-established rule
of international law that the law of the flag state ordinarily governs the
internal affairs of a ship. See Wildenhus's Case, supra, at 12; Colombos,
The International Law of the Sea (3d rev. ed. 1954), 222-223. The possibility
of international discord cannot therefore be gainsaid. Especially is this true
on account of the concurrent application of the Act and the Honduran Labor
Code that would result with our approval of jurisdiction. Sociedad, currently
the exclusive bargaining agent of Empresa under Honduran law, would have
a head-on collision with N. M. U. should it become the exclusive bargaining
agent under the Act. This would be aggravated by the fact that under
Honduran law N. M. U. is prohibited from representing the seamen on
Honduran-flag ships even in the absence of a recognized bargaining agent.
Thus even though Sociedad withdrew from such an intramural labor fight - a
highly unlikely circumstance - questions of such international import would
remain as to invite retaliatory action from other nations as well as Honduras.
The presence of such highly charged international circumstances brings to
mind the admonition of Mr. Chief Justice Marshall in The Charming Betsy, 2
Cranch 64, 118 (1804), that "an act of congress ought never to be construed
to violate the law of nations if any other possible construction remains . . . ."
We therefore conclude, as we did in Benz, that for us to sanction the
exercise of local sovereignty under such conditions in this "delicate field of
international relations there must [372 U.S. 10, 22] be present the
affirmative intention of the Congress clearly expressed." 353 U.S., at 147.
Since neither we nor the parties are able to find any such clear expression,
we hold that the Board was without jurisdiction to order the election. This is
not to imply, however, "any impairment of our own sovereignty, or limitation
of the power of Congress" in this field. Lauritzen v. Larsen, 345 U.S. 571,
578 (1953). In fact, just as we directed the parties in Benz to the Congress,
which "alone has the facilities necessary to make fairly such an important
policy decision," 353 U.S., at 147, we conclude here that the arguments
should be directed to the Congress rather than to us. Cf. Lauritzen v.
Larsen, supra, at 593.
The judgment of the District Court is therefore affirmed in No. 107. The
judgment of the Court of Appeals in Nos. 91 and 93 is vacated and the
cases are remanded to that court, with instructions that it remand to the
District Court for dismissal of the complaint in light of our decision in No.
107.
It is so ordered.
MR. JUSTICE GOLDBERG took no part in the consideration or decision of
these cases.

US v. Flores, 289 U.S. 137 (1933)
1. The clause of the Constitution, Art. I, 8, specifically granting to
Congress the power "to define and punish piracies and felonies committed
on the high seas, and offenses against the law of nations," and the general
provision of Art. III, 2, extending the judicial power "to all cases of
admiralty and maritime jurisdiction," are the results of separate steps,
independently taken in the Convention, by which the jurisdiction in admiralty,
previously divided between the Confederation and the States, was
transferred to the National Government.
2. In view of the history of the two clauses and the manner of their adoption,
the grant of power to define and punish piracies and felonies on the high
seas cannot be deemed to be a limitation on the powers, either legislative or
judicial, conferred on the National Government by Art. III, 2.
3. To construe the one clause as limiting, rather than supplementing, the
other would be to ignore their history, and, without effecting any discernible
purpose of their enactment, to deny to both the states and the national
government powers which were common attributes of sovereignty before
the adoption of the Constitution, including the power to define and punish
crimes, of less gravity than felonies, committed on vessels of the United
States while on the high seas, and crimes of every grade committed on
them while in foreign territorial waters. P. 289 U. S. 149
4. The jurisdiction over admiralty and maritime cases extends to
crimes committed on vessels of the United States while in navigable
waters within the territorial jurisdiction of foreign sovereigns.
5. The jurisdiction is not affected by the fact that the vessel is on a river at a
place remote from the sea where the water is not salt or tidal. P. 289 U. S.
153
6. Section 272 of the Criminal Code, making murder and other offenses
punishable
"when committed within the admiralty and maritime jurisdiction of the United
States and out of the jurisdiction of any particular state, on board any vessel
belonging in whole or in part to the United States"
or any of its citizens, etc., is broad enough to include crimes in the territorial
waters of foreign sovereignties. Pp. 289 U. S. 145, 289 U. S. 155
7. Congress, by incorporating in the statute the very language of the
constitutional grant of power, has made its exercise of the power
coextensive with the grant.
8. The general rule that criminal statutes of the United States are not to
be given extraterritorial effect is inapplicable to our merchant vessels.
9. A merchant ship, for purposes of the jurisdiction of the courts of the
sovereignty whose flag it flies to punish crimes committed upon it, is
deemed to be a part of the territory of that sovereignty, and not to lose that
character when in navigable waters within the territorial limits of another
sovereignty. P. 289 U. S. 155
10. For some purposes, the jurisdiction to punish crimes committed on a
foreign vessel in territorial waters is concurrent in the territorial sovereign
and the sovereign of the vessel's flag. P. 289 U. S. 157.
11. In the absence of any controlling treaty provision, and of any assertion of
jurisdiction by the territorial sovereign, it is the duty of the courts of the
United States to apply to offenses committed by its citizens on vessels flying
its flag, its own statutes, interpreted in the light of recognized principles of
international law. P. 289 U. S. 159.
Appeal from a judgment sustaining a demurrer to an indictment, which
charged the appellee, an American citizen, with having murdered another
American citizen aboard an American ship in foreign territorial waters.
MR. JUSTICE STONE delivered the opinion of the Court.
By indictment found in the District Court for Eastern Pennsylvania, it was
charged that appellee, a citizen of the United States, murdered another
citizen of the United States upon the Steamship Padnsay, an American
vessel, while at anchor in the Port of Matadi, in the Belgian Congo, a place
subject to the sovereignty of the Kingdom of Belgium, and that appellee,
after the commission of the crime, was first brought into the Port of
Philadelphia, a place within the territorial jurisdiction of the District Court. By
stipulation, it was conceded, as though stated in a bill of particulars, that
the Padnsay, at the time of the offense charged, was unloading, being
attached to the shore by cables at a point 250 miles inland from the mouth
of the Congo river.
The District Court, following its earlier decision in United States ex rel. Maro
v. Mathues, 21 F.2d 533, aff'd, 27 F.2d 518, sustained a demurrer to the
indictment and discharged the prisoner on the ground that the court was
without jurisdiction to try the offense charged. 3 F.Supp. 134. The case
comes here by direct appeal under the Act of March 2, 1907, c. 2564, 34
Stat. 1264, 18 U.S.C. 682, and 238 of the Judicial Code, as amended by
Act of February 13, 1925, 28 U.S.C. 345, the court below certifying that its
decision was founded upon its construction of 272 of the Criminal Code,
18 U.S.C. 451.
Sections 273 and 275 of the Criminal Code, 18 U.S.C. 452, 454, define
murder and fix its punishment. Section 272, upon the construction of which
the court below rested its decision, makes punishable offenses defined by
other sections of the Criminal Code, among other cases,
"when committed within the admiralty and maritime jurisdiction of the United
States and out of the jurisdiction of any particular state on board any vessel
belonging in whole or in part to the United States" or any of its nationals.
And, by 41 of the Judicial Code, 28 U.S.C. 102, venue to try offenses
"committed upon the high seas, or elsewhere out of the jurisdiction of any
particular state or district" is "in the district where the offender is found, or
into which he is first brought." As the offense charged here was committed
on board a vessel lying outside the territorial jurisdiction of a state, see
Wynne v. United States, 217 U. S. 234; United States v. Rodgers, 150 U. S.
249, 150 U. S. 265, and within that of a foreign sovereignty, the court below
was without jurisdiction to try and punish the offense unless it was within the
admiralty and maritime jurisdiction of the United States.
Two questions are presented on this appeal: first, whether the extension of
the judicial power of the federal government "to all cases of admiralty and
maritime Jurisdiction," by Art. III, 2, of the Constitution confers on
Congress power to define and punish offenses perpetrated by a citizen of
the United States on board one of its merchant vessels lying in navigable
waters within the territorial limits of another sovereignty; and, second,
whether Congress has exercised that power by the enactment of 272 of
the Criminal Code, under which the indictment was found.
The court below thought, as appellee argues, that as 8 of Art. I of the
Constitution specifically granted to Congress the power "to define and
punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations," and "to make rules concerning
captures on land and water," that provision must be regarded as a
limitation on the general provision of 2 of Art. III, that the judicial
power shall extend "to all cases of admiralty and maritime
Jurisdiction;" that, as the specific grant of power to punish offenses
outside the territorial limits of the United States was thus restricted to
offenses occurring on the high seas, the more general grant could not be
resorted to as extending either the legislative or judicial power over offenses
committed on vessels outside the territorial limits of the United States and
not on the high seas.
Before the adoption of the Constitution, jurisdiction in admiralty and
maritime cases was distributed between the Confederation and the
individual states. Article IX of the Articles of Confederation provided that
"the United States in Congress assembled, shall have the sole and
exclusive right and power . . . of establishing rules for deciding in all cases,
what captures on land or water shall be legal, . . . appointing courts for the
trial of piracies and felonies committed on the high seas and establishing
courts for receiving and determining finally appeals in all cases of
captures. . . ."
So much of the general admiralty and maritime jurisdiction as was not
included in this grant of power remained with the states. The powers thus
granted were in substance the same as those later conferred on the
national government by Article I, 8, of the Federal Constitution. This
section was adopted to carry out a resolution of the Convention "that the
national legislature ought to possess the legislative rights vested in
Congress by the Confederation." Its primary purpose and effect was to
transfer to the newly organized government the powers in a admiralty
matters previously vested in the Confederation.
A proposal independently made and considered in the Convention that "the
admiralty jurisdiction ought to be given wholly to the national government"
resulted in the adoption of Article III, 2, by which the judicial power of the
United States was extended to all cases of admiralty and maritime
jurisdiction.
This section has been consistently interpreted as adopting for the United
States the system of admiralty and maritime law as it had been developed
in the admiralty courts of England and the Colonies, and, by implication,
conferring on Congress the power, subject to well recognized limitations not
here material, to alter, qualify, or supplement it as experience or changing
conditions may require. Panama R. Co. v. Johnson, 264 U. S. 375, 264 U.
S. 386-388; Crowell v. Benson, 285 U. S. 22, 285 U. S. 39; see The
Oconee, 280 F. 927; United States v. Bevan, 3 Wheat. 336, 16 U. S. 389.
In view of the history of the two clauses and the manner of their
adoption, the grant of power to define and punish piracies and felonies
on the high seas cannot be deemed to be a limitation on the powers,
either legislative or judicial, conferred on the national government by
Article III, 2. The two clauses are the result of separate steps
independently taken in the Convention, by which the jurisdiction in
admiralty, previously divided between the Confederation and the
states, was transferred to the national government. It would be a
surprising result, and one plainly not anticipated by the framers or justified
by principles which ought to govern the interpretation of a Constitution
devoted to the redistribution of governmental powers, if part of them were
lost in the process of transfer. To construe the one clause as limiting,
rather than supplementing, the other would be to ignore their history,
and without effecting any discernible purpose of their enactment, to
deny to both the states and the national government powers which
were common attributes of sovereignty before the adoption of the
Constitution. The result would be to deny to both the power to define
and punish crimes of less gravity than felonies committed on vessels
of the United States while on the high seas and crimes of every grade
committed on them while in foreign territorial waters.
As we cannot say that the specific grant of power to define and punish
felonies on the high seas operated to curtail the legislative or judicial power
conferred by Article III, 2, we come to the question principally argued,
whether the jurisdiction over admiralty and maritime cases which it gave
extends to the punishment of crimes committed on vessels of the United
States while in foreign waters. As was pointed out by Mr. Justice Story in the
course of an elaborate review of the history of admiralty jurisdiction in De
Lovio v. Boit, 7 Fed.Cas. 418, 438, No. 3,776, admiralty "from the highest
antiquity, has exercised a very extensive criminal jurisdiction, and punished
offences by fine and imprisonment." The English courts have consistently
held that jurisdiction is not restricted to vessels within the navigable
waters of the realm, but follows its ships upon the high seas and into
ports and rivers within the territorial jurisdiction of foreign
sovereigns. Queen v. Carr & Wilson, 10 Q.B.D. 76; Queen v.
Anderson, L.R., 1 Crown cases Reserved 161; Rex v. Allen, 1 Moody C.C.
494; see Rex v. Jemot, 1 Russell on Crimes, 4th ed. 153.
The criminal jurisdiction of the United States is wholly statutory, but it
has never been doubted that the grant of admiralty and maritime
jurisdiction to the federal government includes the legislative power to
define and punish crimes committed upon vessels lying in navigable
waters of the United States. From the very organization of the
government, and without intermission, Congress has also asserted the
power, analogous to that exercised by English courts of admiralty, to punish
crimes committed on vessels of the United States while on the high seas or
on navigable waters not within the territorial jurisdiction of a state. The Act of
April 30, 1790, c. 9, 8, 1 Stat. 112, 113, provided for the punishment of
murder committed "upon the high seas, or in any river, haven, basin or bay,
out of the jurisdiction of any particular state," and provided for the trial of the
offender in the district where he might be apprehended or "into which he
may first be brought." Section 12 of this Act dealt with manslaughter, but
only when committed upon the high seas. It is true that, in United States v.
Bevans, 3 Wheat. 336, the prisoner, charged with murder on a warship in
Boston Harbor, was discharged, as was one charged with manslaughter
committed on a vessel on a Chinese River in United States v. Wiltberger, 5
Wheat. 76. But the judgments were based not upon a want of power in
Congress to define and punish the crimes charged, but upon the ground
that the statute did not apply, in the one case, for the reason that the place
of the offense was not out of the jurisdiction of a state, and in the other
because the offense, manslaughter, was not committed on the high seas.
The Act of March 3, 1825, c. 65, 4, 4 Stat. 115, provided for the
punishment of any person committing murder "upon the high seas, or in any
arm of the sea, or in any river, haven, creek, basin or bay, within the
admiralty and maritime jurisdiction of the United States and out of the
jurisdiction of any particular state," and 22 provided for the punishment of
assault with a dangerous weapon committed under similar circumstances.
The provisions of the latter section, carried into 5346 of the Revised
Statutes, were upheld in United States v. Rodgers, supra, as a constitutional
exercise of the power of Congress to define and punish offenses occurring
in American vessels while within territorial waters of another sovereignty.
Rodgers had been convicted of assault with a dangerous weapon,
committed on a vessel of the United States lying in the Detroit River within
the territorial jurisdiction of Canada, and his conviction was sustained by this
Court. It was assumed that the statute was applicable only with respect to
offenses committed on the high seas and waters tributary to them, and the
decision turned on whether the Great Lakes were to be deemed "high seas"
within the meaning of the statute. It was held that they were, and the power
of Congress to punish offenses committed on an American vessel within the
territorial waters of Canada, tributary to the Lakes, was expressly affirmed.
As the offense charged here appears to have been committed on an
American vessel while discharging cargo in port, the jurisdiction is not
affected by the fact that she was then at a point on the Congo remote from
the sea, where it does not affirmatively appear that the water is salt or tidal.
On this point also, United States v. Rodgers, supra, is controlling, for there
the offense committed within a foreign territorial jurisdiction was upon
nontidal fresh water.
The appellee insists that, even though Congress has power to define and
punish crimes on American vessels in foreign waters, it has not done so by
the present statute, since the criminal jurisdiction of the United States is
based upon the territorial principle, and the statute cannot rightly be
interpreted to be a departure from that principle. But the language of the
statute making it applicable to offenses committed on an American
vessel outside the jurisdiction of a state "within the admiralty and
maritime jurisdiction of the United States" is broad enough to include
crimes in the territorial waters of a foreign sovereignty. For Congress,
by incorporating in the statute the very language of the constitutional grant
of power, has made its exercise of the power coextensive with the
grant. Compare 71 U. S. Trevor, 4 Wall. 555.
It is true that the criminal jurisdiction of the United States is in general
based on the territorial principle, and criminal statutes of the United
States are not by implication given an extraterritorial effect. But that
principle has never been thought to be applicable to a merchant vessel
which, for purposes of the jurisdiction of the courts of the sovereignty
whose flag it flies to punish crimes committed upon it, is deemed to be
a part of the territory of that sovereignty, and not to lose that character
when in navigable waters within the territorial limits of another
sovereignty. United States v. Rodgers, supra; compare Thomas v. Lane, 2
Sumn. 1; Queen v. Anderson, supra; Queen v. Carr & Wilson, supra; Rex v.
Allen, supra; Rex v. Jemot, supra. This qualification of the territorial principle
in the case of vessels of the flag was urged by Mr. Webster while Secretary
of state, in his letter to Lord Ashburton of August 1, 1842, quoted with
approval in United States v. Rodgers, supra, 150 U. S. 264-265. Subject to
the right of the territorial sovereignty to assert jurisdiction over offenses
disturbing the peace of the port, it has been supported by writers on
international law, and has been recognized by France, Belgium, and other
continental countries, as well as by England and the United States.
In view of the wide recognition of this principle of extraterritorial jurisdiction
over crimes committed on merchant vessels and its explicit adoption
in United States v. Rodgers, supra, we cannot say that the language of the
present statute punishing offenses on United States vessels out of the
jurisdiction of a state, "when committed within the admiralty and maritime
jurisdiction of the United States," was not intended to give effect to it. If the
meaning of the statute were doubtful, the doubt would be resolved by the
report on these sections by the Special Joint Committee on the Revision of
the Laws, 60th Congress, 1st Sess., Rep. 10, part 1, p. 10, in which it was
pointed out that the jurisdiction extends to vessels of the United States
when on navigable waters within the limits of a foreign state, and "all cases
arising on board such vessels while on any such waters, are clearly cases
within the admiralty and maritime jurisdiction of the United States."
A related but different question, not presented here, may arise when
jurisdiction over an offense committed on a foreign vessel is asserted by the
sovereignty in whose waters it was lying at the time of its commission,
since, for some purposes, the jurisdiction may be regarded as concurrent, in
that the courts of either sovereignty may try the offense.
There is not entire agreement among nations or the writers on
international law as to which sovereignty should yield to the other
when the jurisdiction is asserted by both. See Jessup, the Law of
Territorial Waters, 144-193. The position of the United States exemplified
in Wildenhus' Case, 120 U. S. 1, has been that, at least in the case of
major crimes affecting the peace and tranquillity of the port, the
jurisdiction asserted by the sovereignty of the port must prevail over
that of the vessel. In that case, the Belgian Consul sought release on
habeas corpus of Wildenhus, a seaman, who was held in a New Jersey jail
on a charge of homicide committed on a Belgian vessel lying in New Jersey
waters, on the ground that Article XI of the Convention between
Belgium and the United States of March 9, 1880, 21 Stat. 781, gave
consular officers of the sovereignty of the vessel sole cognizance of
offenses on board ship, except those of a nature to disturb the
tranquillity and public order on shore and those involving a person not
belonging to the crew. The court construed the Convention as inapplicable
to the crime of murder, and upheld the jurisdiction of the local court as
conforming to the principles of international law. It said, p.120 U. S. 12:
"And so, by comity, it came to be generally understood among
civilized nations that all matters of discipline and all things done on
board which affected only the vessel or those belonging to her, and
did not involve the peace or dignity of the country or the tranquility of
the port, should be left by the local government to be dealt with by the
authorities of the nation to which the vessel belonged as the laws of
that nation or the interests of its commerce should require. But, if
crimes are committed on board of a character to disturb the peace and
tranquillity of the country to which the vessel has been brought, the
offenders have never, by comity or usage, been entitled to any
exemption from the operation of the local laws for their punishment if
the local tribunals see fit to assert their authority. "
This doctrine does not impinge on that laid down in United States v.
Rodgers, supra, that the United States may define and punish offenses
committed by its own citizens on its own vessels while within foreign waters
where the local sovereign has not asserted its jurisdiction. In the absence
of any controlling treaty provision, and any assertion of jurisdiction by
the territorial sovereign, it is the duty of the courts of the United States
to apply to offenses committed by its citizens on vessels flying its flag,
its own statutes, interpreted in the light of recognized principles of
international law. So applied, the indictment here sufficiently charges an
offense within the admiralty and maritime jurisdiction of the United States,
and the judgment below must be
US V. LOOK CHOW
G.R. NO. L-5887 DECEMBER 16, 1910
Lesson: Crimes NOT involving a breach of public order committed on board
a public vessel is NOT triable by our courts
Laws Applicable: Art. 2 RPC, Opium Law
FACTS:
Upon arrival of steamship Erroll of English nationality, that it came from
Hongkong, and that it was bound for Mexico, via the call ports of Manila and
Cebu, 2 sacks of opium where found during the inspection and search of
the cargo.
o Smaller sack of opium on the cabin near the saloon
o larger sack in the hold
o Later on, there was also 4 cans of opium found on the part of the ship
where the firemen habitually sleep
the firemen and crew of foreign vessels, pursuant to the instructions he
had from the Manila custom-house, were permitted to retain certain
amounts of opium, always provided it should not be taken shore so it was
returned
2 charges were filed against Look Chaw at the Court of First Instance of
Cebu:
o unlawful possession of opium
o unlawful sale of opium
Look Chaw admitted that he had bought these sacks of opium, in
Hongkong with the intention of selling them as contraband in Mexico or Vera
Cruz, and that, as his hold had already been searched several times for
opium, he ordered two other Chinamen to keep the sack.
The court ruled that it did not lack jurisdiction, inasmuch as the crime had
been committed within its district, on the wharf of Cebu. The court
sentenced him to 5 years imprisonment, to pay a fine of P10,000, with
additional subsidiary imprisonment in case of insolvencyxxx It further
ordered the confiscation, in favor of the Insular Government.
ISSUE: W/N the Philippine court has jurisdiction.
HELD: YES. Modified by reducing the imprisonment and the fine imposed
to six months and P1,000
GR: mere possession of a thing of prohibited use in these Islands,
aboard a foreign vessel in transit, in any of their ports, does NOT constitute
a crime triable by the courts of this country, on account of such vessel being
considered as an extension of its own nationality
EX: when the article, whose use is prohibited within the Philippine
Islands, in the present case a can of opium, is landed from the vessel upon
Philippine soil, thus committing an open violation of the laws of the land with
respect to which, as it is a violation of the penal law in force at the place of
the commission of the crime, only the court established in that said place
itself had competent jurisdiction, in the absence of an agreement under an
international treaty.
G.R. No. L-18924, October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS
vs.
WONG CHENG
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the
Court of First Instance of Manila, sustaining the demurrer presented by the
defendant to the information that initiated this case and in which the
appellee is accused of having illegally smoked opium, aboard the merchant
vessel Changsa of English nationality while said vessel was anchored in
Manila Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court,
which so held and dismissed the case.
The question that presents itself for our consideration is whether such ruling
is erroneous or not; and it will or will not be erroneous according as said
court has or has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction
over crime, like the one herein involved, committed aboard merchant
vessels anchored in our jurisdiction waters.
There are two fundamental rules on this particular matter in connection with
International Law; to wit, the French rule, according to which crimes
committed aboard a foreign merchant vessels should not be prosecuted in
the courts of the country within whose territorial jurisdiction they were
committed, unless their commission affects the peace and security of the
territory; and the English rule, based on the territorial principle and followed
in the United States, according to which, crimes perpetrated under such
circumstances are in general triable in the courts of the country within
territory they were committed. Of this two rules, it is the last one that obtains
in this jurisdiction, because at present the theories and jurisprudence
prevailing in the United States on this matter are authority in the Philippines
which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7
Cranch [U. S.], 116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be
obviously inconvenient and dangerous to society, and would subject the
laws to continual infraction, and the government to degradation, if such
individuals or merchants did not owe temporary and local allegiance, and
were not amenable to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or
crime committed on the high seas or within the territorial waters of any other
country, but when she came within three miles of a line drawn from the
headlands, which embrace the entrance to Manila Bay, she was within
territorial waters, and a new set of principles became applicable. (Wheaton,
International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs.
490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then
subject to the jurisdiction of the territorial sovereign subject to such
limitations as have been conceded by that sovereignty through the proper
political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali
and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was
said that:
. . . The principle which governs the whole matter is this: Disorder which
disturb only the peace of the ship or those on board are to be dealt with
exclusively by the sovereignty of the home of the ship, but those which
disturb the public peace may be suppressed, and, if need be, the offenders
punished by the proper authorities of the local jurisdiction. It may not be
easy at all times to determine which of the two jurisdictions a particular act
of disorder belongs. Much will undoubtedly depend on the attending
circumstances of the particular case, but all must concede that felonious
homicide is a subject for the local jurisdiction, and that if the proper
authorities are proceeding with the case in the regular way the consul has
no right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the
Philippine Islands, aboard a foreign vessel in transit in any local port,
does not, as a general rule, constitute a crime triable by the courts of
the Islands, such vessels being considered as an extension of its own
nationality, the same rule does not apply when the article, the use of
which is prohibited in the Islands, is landed from the vessels upon
Philippine soil; in such a case an open violation of the laws of the land is
committed with respect to which, as it is a violation of the penal law in
force at the place of the commission of the crime, no court other than
that established in the said place has jurisdiction of the offense, in the
absence of an agreement under an international treaty.
As to whether the United States has ever consented by treaty or otherwise
to renouncing such jurisdiction or a part thereof, we find nothing to this
effect so far as England is concerned, to which nation the ship where the
crime in question was committed belongs. Besides, in his work "Treaties,
Conventions, etc.," volume 1, page 625, Malloy says the following:
There shall be between the territories of the United States of America, and
all the territories of His Britanic Majesty in Europe, a reciprocal liberty of
commerce. The inhabitants of the two countries, respectively, shall have
liberty freely and securely to come with their ships and cargoes to all such
places, ports and rivers, in the territories aforesaid, to which other foreigners
are permitted to come, to enter into the same, and to remain and reside in
any parts of the said territories, respectively; also to hire and occupy houses
and warehouses for the purposes of their commerce; and, generally, the
merchants and traders of each nation respectively shall enjoy the most
complete protection and security for their commerce, but subject always to
the laws and statutes of the two countries, respectively. (Art. 1, Commerce
and Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in
transit was held by this court not triable by or courts, because it being the
primary object of our Opium Law to protect the inhabitants of the Philippines
against the disastrous effects entailed by the use of this drug, its mere
possession in such a ship, without being used in our territory, does not
being about in the said territory those effects that our statute contemplates
avoiding. Hence such a mere possession is not considered a
disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard a
foreign merchant ship, is certainly a breach of the public order here
established, because it causes such drug to produce its pernicious effects
within our territory. It seriously contravenes the purpose that our Legislature
has in mind in enacting the aforesaid repressive statute. Moreover, as the
Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a foreign vessel
at anchor in the port of Manila in open defiance of the local authorities, who
are impotent to lay hands on him, is simply subversive of public order. It
requires no unusual stretch of the imagination to conceive that a foreign
ship may come into the port of Manila and allow or solicit Chinese residents
to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded to the
court of origin for further proceedings in accordance with law, without
special findings as to costs. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ.,
concur.
WILDENHUS CASE, 120 U.S. 1 (1887)
I. CITATION Volume 120 of the U.S. Supreme Court Reports, 1887
II. THE FACTS
A. Material
While a Belgian vessel was docked in the port of Jersey City, New Jersey [in
1886], a Belgian crew member [fought and] killed another Belgian crew
member on board the vessel. [The Jersey City police boarded the steamer
and arrested Wildenhus. They then committed him to jail in New Jersey,
pending trial for murder.]
B. Legal
The Belgian consul sought a [writ of] habeas corpus to obtain the release of
the Belgian national.
The consul relied upon a March 9, 1880 treaty between the United States
and Belgium. Article IX provided that consular officials "shall alone take
cognizance of all differences which may arise, either at sea or in port,
between the captains, officers, and crews, without exception .... The local
authorities shall not interfere, except when the disorder that has arisen is of
such a nature as to disturb the tranquility and public order on shore, or in
the port, or when a person of the country or not belonging to the crew, shall
be concerned therein."
The U.S. Circuit Court refused to deliver the prisoners to the consul and
remanded them to jail.
This case is an appeal to the U.S. Supreme Court.
III. LEGAL ISSUES
A. Specific
1. In this case, which state has rightful jurisdiction? The United States or
Belgium?
2. In this case, on what legal basis is jurisdiction to be determined?
3. How is the language of the U.S.-Belgian Treaty to be interpreted? What
is specifically meant by a "disorder" that "disturb[s] the tranquility and public
order on shore, or in port?"
B. General
1. In cases involving disturbances of the tranquility of the port, how is
jurisdiction to be determined?
2. What "disorders" so "disturb the tranquility and public order on shore, or
in port" as to give the local state jurisdiction?
IV. THE HOLDING
"The judgment of the [U.S.] Circuit Court [was] affirmed." The Supreme
Court ruled that the Belgian crew members would remain in American
custody for trial. The consul's petition for habeas corpus was denied.
V. LEGAL RATIONALE [Opinion of Chief Justice Waite]
A. The United States has jurisdiction in this case.
B. U.S. jurisdiction is based on the "tranquility of the port" principle.
1. This general principle of international law is based on "comity."
2. The principle provides that "all matters of discipline and all things done on
board which affected only the vessel or those belonging to her, and did not
involve the peace or dignity of the country, or the tranquility of the port,
should be left by the local government to be deal with by the authorities of
the nation to which the vessel belonged. But if crimes are committed on
board of a character to disturb the peace and tranquility of the country to
which the vessel has been brought, the offenders have never by comity or
usage been entitled to any exception from the operation of the local laws for
their punishment, if the local tribunals see fit to assert their authority."
3. Treaties have been entered into which codify the "tranquility of the port"
principle in order to "prevent the inconvenience that might arise from
attempts to exercise conflicting jurisdictions."
* U.S.-France Treaty, November 14, 1788 * U.S.-Belgium
Treaty, March 9, 1880
C. In this case, the U.S.-Belgium Treaty "is the law which now governs the
conduct of the United States and Belgium towards each other in this
particular."
D. The language of the U.S.-Belgium Treaty may be interpreted as providing
the basis for rightful American jurisdiction.
1. The treaty provides that local authorities [in this case, the United States]
may exercise their jurisdiction "when the disorder that has arisen is of such
a nature as to disturb the tranquility and public order on shore, or in the
port."
2. In this case, the "disorder" was "of such a nature as to disturb the
tranquility and public order on shore, or in the port."
Determining when an act disturbs the tranquility and public order on shore
"may not be easy at all times. Much will depend on the attending
circumstances of the particular case." In this case a determination may be
made, however.
"[A]ll must concede that that felonious assault is a subject for local
jurisdiction."
In the 1859 Jally case, the highest French judicial tribunal held that French
courts had rightful jurisdiction when an American merchantman killed
another American on board an American ship while in a French port.
RULE: "It is not alone the publicity of the act, or the clamor which
attends it, that affixes the nature of the crime, but the act itself. If it
is of a character to awaken public interest when it becomes known, it
is a 'disorder' the nature of which is to affect the community at large,
and consequently to invoke the power of the local government."
THE CASE OF SS LOTUS (FRANCE V.
TURKEY)
THE LOTUS CASE (France v Turkey):
Facts: The French steamer Lotus collided with the Turkish cargo ship Bos-
Kourt 5-6 nautical miles north of Cape Sigri (around the area between
Greece and Turkey). The Boz-Kourt was cut in two, causing it to sink, and
leading to eight deaths. The Lotus tried to support the shipwrecked persons,
leading to ten rescues, but ended up continuing to Constantinople. The
officer on watch on board the Lotus was Monsieur Demons, a Frenchman,
who was tried by the Turkish Court for involuntary manslaughter (the Turkish
captain was also tried, but this is irrelevant), and subsequently convicted.
His lone defense was lack of jurisdiction, which the French government
echoed on appeal, leading to the case in the ICJ.
France's primary argument is that in a collision in the high seas, where no
other countries are involved except the flags of the ships involved,
jurisdiction lies in whose flag the errant vessel sails. The Turkish
prosecution was improper because it was not in accord with principles of
international law.
The Turkish base their jurisdiction on Art. 6 of their Penal Code, which
allows extraterritorial jurisdiction in cases such as these. The issue then is
not so much whether or not Art. 6 is in line with international law (which can't
really change their local law), but merely on who has jurisdiction over the
offense.
Applicable Law: Art. 15 of the Convention of Lausanne, of which both states
are parties. Questions of jurisdiction are to be decided in accordance with
the principles of international law.
France: Decide based on the evolution of the Convention. When the Turkish
government adopted Art. 6 of their Penal Code, it was rejected by the
British, while the French entered into a reservation with respect to it. Based
on this, taking jurisdiction over Demons is contrary to the intention behind
Lausanne.
Court: No. It is general international law that applies. Treaties are
generally interpreted based on the ordinary meaning of words, hence
when we speak of international law, we refer to the general principles
that all states adhere to. Moreover, there was no explanation as to the
French reservation-- unless alleged, one cannot know how the relations
under the treaty may be modified. Weighing these two, IL in the Lausanne
Convention can only refer to GP/IL.
Basis of Turkish Jurisdiction and the Concept of Territoriality:
France: The Turkish courts must find some title to jurisdiction in
international law in favour of it in order to take jurisdiction.
Turkey: Art. 15 alone can apply for as long as it does not conflict with a
principle of international law.
-It is established that a state may generally exercise jurisdiction only within
its define territory. However, this rule in IL does not preclude the
possibility that a State can take jurisdiction over offenses committed
outside its territory. The only limitation is that such laws promulgated
should not conflict with the limits set by international law.
-Presumption: Restrictions on the independence of States are not
presumed. They must be established.
-The question is whether or not there is support for the French contention
that Turkey's actions conflict with such limits. Whether or not there is a
source of law prohibiting Turkey from assuming jurisdiction. NO. In fact, the
sources of law show that there is concurrent jurisdiction between
Turkey and France. Turkey exercised jurisdiction FIRST, barring
France.
France's arguments are three-fold: (1) IL does not allow a State to take
proceedings with regard to offenses committed by foreigners abroad merely
because the victims were their Nationals, (2) IL recognizes the exclusive
jurisdiction of the State whose flag is flown over all offenses on board ships
on the high seas, and (3) any such principles derived are applicable to
collision cases.
As to the first argument: No such law exists. What nations tend to do is
that offenses, the authors of which are in the territory of another State,
are regarded as having been committed in the national territory for as
long as one or more constituent elements OR effects occur there. Both
Courts have applied this principle, and there have been no records of
protests challenging this principle. Hence, with the offense committed
on a French ship and the effects felt on a Turkish ship, it seems
Turkish cognizance was proper.
Even then, if Art. 6 were held incompatible of IL, it may still be possible to
find some other general principle that would allow the Turks to have
jurisdiction. Such an error with respect to applicable law is a municipal issue
that does not extend to IL unless a treaty provision enters into account, or
when the possibility of a denial of justice arises.
As for the argument that manslaughter cannot be localized at the point
where mortal effect is felt: Manslaughter is punished precisely due to the
effect. No source of IL has established a contrary rule.
As to the second argument: In these situations, it's established that the
ships are treated in the same position as national territory. Hence, when
they clash and collide, it can be treated as if there were a territorial
dispute/overlap between the two States-- this is a corollary of the basic rule
of freedom on the high seas. This implies that the state of the victim can
take cognizance-- no rule of IL prevents them.
The French rely on publicists, decisions, and conventions to prove that they
should have exclusive jurisdiction. To start, there is no shortage of publicists
that argue that in a case when offenses were committed on board a foreign
ship on the high seas, it can still be treated as if the offense was committed
within that foreign territory. Next, precedent is actually lacking with respect
to cases in favour of France. Finally, most conventions do not refer to
common law offenses, which ought to be treated differently from matters
such as slave trade, submarine sables, fisheries, etc.
As to the third argument: it appears that there may be state practice where
the foreign State would defer to the State of the offender, but again, there is
no belief that they had a duty to defer/abstain. This means that a view
pointing towards jurisdiction on the hand of the offended State is not
prohibited. Though there are municipal cases that may bolster the French
side, these are only part of a rich body of jurisprudence that actually favors
the Turkish.
Conclusion: They have concurrent jurisdiction; it's just that Turkey exercised
it first, to the exclusion of France.
ATTORNEY-GENERAL OF THE STATE OF
ISRAEL V. ADOLF EICHMANN
Facts
Adolf Eichmann (defendant) was a German Nazi officer involved in the
internment and extermination of Jewish people during World War II.
Eichmann was tried for his crimes in Israel in the District Court of Jerusalem
and was convicted of various violations of the Nazis and Nazi Collaborators
(Punishment) Law 5710-1950 (the Law), receiving a death sentence as a
result. Eichmann had petitioned the government of West Germany for
extradition, but his application was denied. Eichmann appealed his
convictions, arguing that both the Law and Israels exercise of jurisdiction
over Eichmann pursuant to the Law violated international law, because the
offenses had occurred outside of Israel in Germany, and therefore, only
Germany had jurisdiction over the offenses.
Principle: The universal principle (Jurisdiction). It recognizes that a
sovereign can adopt criminal laws that apply to the person who has
committed any crime of universal nature (Jus Cogence, War Crime, Mass
Killing etc.) Anywhere in the world when the conduct is recognized by
nations as being of universal concern.
Adolf Eichmann, was an Austrian by birth who worked as the Head of
Section for Jewish Affairs charged of the Final Solution to the Jewish
Question. In this capacity, he killed more than 4,200,000 Jewish people and
the transfer of money from evacuated Jews to the State and was
responsible for the administration of the Torture camps.
Later, he was captured by Israeli Security Forces in Argentina, where he
reached after traveling many European country then having a fake identity
of Red Cross as being Ricardo Klement. After that ISF handed over to the
District Court of Jerusalem to stand trial for war crimes, crimes against
humanity and crimes against the Jewish people.
Issue: whether Israel had the authority to put him in the trial or not?
Decision: He was convicted of all 15 counts and sentenced to death.
Reasoning: His crimes were crimes against humanity, he violated the
principal of jus cogence so every country has the right to try that type of
crime.
FILRTIGA V. PEA-IRALA
A suit against Pena-Irala (D) on the premise that he had tortured to death
the decedent of Filartiga (P), was filed by Filartiga (P).
Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may
be considered to violate law of nations.
Facts. A suit claiming that Pena-Irala (D) had tortured Filartigas (P)
decedent to death while he was a police Inspector General, was brought by
Filartiga (P). All parties were Paraguayan citizens. Jurisdiction was based
on the Allen Tort Statute, 28 U.S.C. S 1350, which provided jurisdiction for
tort committed in violation of the law of nations. The case was dismissed
by the district court for lack of jurisdiction to which Filartiga (P) appealed.

Issue. For purpose of the Allen Tort Statute, may torture be considered as a
violation of the law of nations?

Held. (Judge not stated in casebook excerpt). Yes. For purpose of the
Allen Tort Statute, torture may be considered to violate law of nations.
The prohibition against torture has become part of customary international
law. Various United Nations declarations such as the Universal Declaration
of Human Rights and the 1975 Declaration on the Protection of All Persons
from Torture further portrays the fact that prohibition against torture has
become part of customary international law. Torture has been officially
renounced in the vast majority of nations and this is the reason why this
court concluded that torture violates the law of nations.

Discussion. It is not new for many members of the United Nations to make
pronouncements and not be pronouncements into action. It is no secret that
torture is still widely practiced if not by a majority of countries then in a
significant manner. Actual practice, and not U.N. declarations have been
argued by commentators as what constitute international law.