The Law of the Sea / A manual of the principles of admiralty law for students, mariners, and ship operators

CHAPTER XIV CRIMES COMMITTED AT SEA

1. Definition.—

A crime consists in the violation of a public law either forbidding or commanding an act to be done. One act may constitute several crimes against different jurisdictions, as against a State and the United States and a foreign country. Crimes are classified as treason, felonies and misdemeanors. Treason against the United States consists only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Felonies are crimes punishable by death or imprisonment in a state prison; all other crimes are misdemeanors.

Crimes committed at sea are those accomplished upon the high seas or within the jurisdiction of the admiralty, which extends over all navigable waters. Such crimes are punishable by the United States so far as Congress legislates on the subject and otherwise by the particular sovereignty within whose jurisdiction the offense is committed.

2. Admiralty Criminal Jurisdiction.—

The constitutional grant embraces criminal as well as civil cases and no crime can escape punishment because committed on shipboard or on the high seas. The provisions of the Constitution in regard to the trial of crimes under the laws of the United States require the proceedings to be according to the practice of the common law, so that they are before a jury as in ordinary cases and the ordinary rules of criminal law are applied. These crimes are covered by the Criminal Code (10 U.S. Comp St. 1916, 10419-10444; 10445-10462; 10463-10483). There may also be other crimes according to the law of the place where the vessel may be or according to the laws of the State or country from which she hails. Merchant vessels are regarded for many purposes as floating portions of the country to which they belong and of the particular State of their home port. An American merchant vessel on the high seas will therefore continue under the appropriate laws both of the United States and of her own particular State, and while in foreign ports she will also be subject to local law. She will never be outside the scope of some law and although several jurisdictions may overlap, crimes committed on board will not escape punishment.

3. Place of Trial.—

Whenever an offense is committed on board of an American vessel, it is the duty of the master and crew to detain the offender and surrender him to the proper authorities for trial as soon as may be. If the offense is within the limits of a particular State, the trial must be in a Federal court therein; if committed on the high seas, then in a like court of the district wherein the offender is apprehended or into which he is first brought; if within a port of a foreign country, the local laws may prevail. The jurisdiction of every independent nation over the merchant vessels of other nations within its boundaries is absolute and exclusive and arrests may be made thereon and offenders removed for trial according to the laws of the locality. The right of local authorities to search a vessel in their ports for a person charged with crime is established unless modified by treaty. The master is bound to submit to the jurisdiction within which his vessel lies. In practice a distinction is made between offenses affecting the peace and dignity of the foreign country and those only involving the internal order and discipline of the ship. A certain comity preserves the latter from outside interference and local authorities will usually decline to act in such cases or interfere with the general authority of the master. It is frequently provided by treaty that disputes between the masters, officers and crews may be adjudicated by their consuls, provided that they do not disturb the peace or tranquillity of the port.

4. Offenses Not Consummated on Shipboard.—

Where the crime is committed on the high seas although not on shipboard, the admiralty jurisdiction as administered by the Federal courts will still be enforced. The case of Holmes, 1 Wall. Jr. 1; 26 Fed. Cas. No. 15,383, is an unusual example. The American ship, William Brown, loaded with passengers and cargo, struck an iceberg in the North Atlantic and had to be abandoned. Nine of the crew and thirty-two passengers got into the longboat; Holmes was one of the crew and took charge of her in an attempt to reach Newfoundland, then about three hundred miles away. The longboat proved leaky and was so seriously overloaded by those on board as to fill with water in the sea which began to rise. In the face of urgent necessity and under Holmes' general directions, sufficient of the passengers were thrown overboard to enable the boat to float until picked up by a passing ship. Holmes was convicted of manslaughter in the Eastern District of Pennsylvania.

5. Penalties and Forfeitures.—

The ship herself may be a quasi-criminal under maritime law. All commercial nations find it necessary for the enforcement of their laws and regulations in regard to commerce by sea, to impose penalties upon the vessel by or through which violations occur. So a vessel which has engaged in any piratical aggression may be condemned and sold for the use of the United States. Violation of a blockade or carriage of contraband of war renders the ship liable to seizure and sale by the Government. A ship licensed for the coasting trade may be forfeited if she engages in any other, and many penalties may be inflicted upon the vessel for acts of which the owner is entirely innocent. Similarly a false oath made in order to obtain the registry of a vessel, or any other fraud for the purpose of obtaining registry, enrollment or licenses will result in her forfeiture, and so will a sale to an alien without complying with the provisions of the statutes (Chapter 11, §10, supra). Forfeiture of a vessel will also result from an attempt to change her name, otherwise than by the method provided by law (Chapter 11, §9, supra), or to deceive the public as to her true name and character by any contrivance, device or advertisement of law where the owner or the master is privy to the offense, as for example the importation of diseased cattle. The doctrine of the personality of the ship again appears in the criminal law of the admiralty which treats her like an individual for purposes of regulation and punishment. The principle was laid down by Justice Story in the brig Malek Adhel, 2 How. (U.S.) 210:

It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offense has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof.

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The acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs.

Thus if a vessel fails to carry the wireless equipment prescribed by law a fine is imposed upon the master and is a lien upon the ship enforceable by law in admiralty. The statute governing the equipment of vessels with radio telegraph apparatus is given under §11 infra. Innocent cargo is not involved in the forfeiture of a guilty vessel, and where the owner and master of a vessel is innocent she will not usually be forfeitable by reason of the guilt of the cargo.

The sending, or attempting to send to sea, of a vessel so unseaworthy as to be likely to endanger life, is a misdemeanor for which the person guilty is to be punished by fine or imprisonment, or both (Act of December 21, 1898, §11), unless he is able to prove either that he used all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in an unseaworthy state was under circumstances reasonable and justifiable.

6. Federal Criminal Code.—

This was promulgated by the Act of March 4, 1909, and will be found in 10 Comp. St. 1916, commencing at page 12491. Maritime offenses are grouped in Chapter 11, "Offenses within the admiralty and maritime and the territorial jurisdiction of the United States," and Chapter 12, "Piracy and other offenses upon the Seas." Unlike the legislatures of the several States, which have an inherent power to define and punish any act as a crime, subject to constitutional limitations, Congress is confined to the powers enumerated in the Federal Constitution. In regard to offenses at sea, its power is derived from §8 of Article 1, "To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations," and from Article III which provides that the judicial power shall be versed "in such inferior courts as the Congress may from time to time ordain and establish" and shall extend "to all cases of admiralty and maritime jurisdiction." Chapter 11 provides for the punishment of murder, manslaughter, felonious and simple assaults, attempts to commit murder or manslaughter, rape, seduction, loss of life by misconduct of officers of vessels, maiming, robbery, maritime arson, larceny and receiving stolen goods, when committed upon the high seas, or any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, or within such admiralty jurisdiction on board of any vessel belonging in whole or in part to the United States, or any citizen thereof, or corporation created under its laws or those of any of its States, Territories or Districts; also, when committed upon any American vessel on a voyage on the Great Lakes, or upon any island, rock or key, containing deposits of guano and appertaining to the United States.

Chapter 12 provides for the punishment of piracy; maltreatment of crews; incitement of revolt or mutiny; seamen laying violent hands on commanders; abandonment of mariners in foreign ports; conspiracy to cast away vessels; plundering vessels in distress; holding false lights; attacking vessels with intent to plunder; breaking and entering vessels; destruction of vessels at sea; robbery on shore by pirates; arming vessel to cruise against citizens; piracy under color of foreign commission; piracy by aliens; voluntary surrender to pirates; plotting or corresponding with pirates and selling arms or intoxicants to any aborigines in Pacific Islands. The punishments provided for the offenses in these two chapters are generally severe but in harmony with what experience has shown to be appropriate for the crimes dealt with.

Besides these provisions, the Code, in Chapter 10, deals with the slave trade and peonage; in Chapter 2, with offenses against neutrality; and in Chapter 9, with offenses against foreign and interstate commerce, such as carrying explosives on passenger vessels.

Title LIII Merchant Seaman (7 Comp St. §§8380-8391) contains various provisions in respect of offenses and punishments of seamen; desertion; willful disobedience; assaults on officers; damaging the vessel; embezzlement of stores or cargo; smuggling; drunkenness; carrying sheath-knives; unlawful boarding; soliciting seamen as lodgers; and corporal punishment are there dealt with.

7. Concurrent Jurisdictions.—

There is no doubt that Congress has the power to make all crimes committed within the admiralty jurisdiction punishable in the federal courts but it has not done so and is not likely ever to so enact. Neither is it likely ever to assert an exclusive jurisdiction over all or any such crimes except as may be in violation of a purely federal enactment. Where this exclusive jurisdiction has not been asserted, either in terms or by necessary implication, state laws are not superseded by federal, and the same act may be punished as an offense against the United States and also as an offense against the State; it may thus be within the jurisdiction of both federal and state courts or the one may have jurisdiction of it under one aspect and the other under a different phase. The rule of comity is the same as in civil cases; where there is concurrent jurisdiction, the court which first obtains it, will continue to act to the exclusion of the other. Where the defendant obtains an acquittal in one court of concurrent jurisdiction, the judgment is a bar to a subsequent trial in the other, since he is not subject, for the same offense, to be twice put in jeopardy of life or limb.

8. Limitations of Prosecutions.—

The right of the government to prosecute for a crime is not barred by any lapse of time unless its statutes so expressly provide. In the federal courts, there must be an indictment within three years after the offense was committed, in most instances; for the slave trade, the term is five years; but these terms do not run while the offender is a fugitive from justice.

9. Piracy.—

While the majority of offenses under maritime law only differ from like offenses on land in respect of locality, piracy is confined to the water. Pirates are enemies of all mankind and the offense is against the universal laws of society. There is a piracy, therefore, by the law of nations and those guilty of it are subject to pursuit, seizure and punishment by the vessels of every nation. There is also a statutory piracy which is punishable only within the limits of the jurisdiction which defines it. The pirate by the law of nations is an outlaw whom any nation may capture and punish. He is one who, without legal authority from any state, attacks a ship with the intention to appropriate what belongs to it; in other words, his offense is that of depredation on the high seas without authority from any sovereign state. All private, unauthorized maritime warfare is piratical because it is incompatible with the peace and order of the high seas. It is not necessary that the motive be plunder or that the depredations be directed against the vessels of all nations indiscriminately; it is only essential that the spoliation, or intended spoliation be felonious, that is, done willfully and without legal authority or lawful excuse. In cases of this piracy by international law, it is of no importance, for purposes of jurisdiction, where or against whom, the offense is committed; such pirates may be tried and punished and the ship captured and condemned wherever found. Apart from international law, any government may declare offenses on its own vessels to be piracy and such offenses will be exclusively punishable by it like other crimes. St. Clair v. U.S., 154 U.S. 134, may be examined in regard to an instance of statutory piracy; while the Ambrose Light, 25 Fed. 408, is a very learned and authoritative opinion on the modern views of piracy under international law.

10. Barratry.—

This expression frequently appears in maritime law and includes any act done by the master or crew, with criminal intent, in violation of their duty to the shipowner and without his connivance. It is a general term applicable to many criminal acts and therefore not properly classifiable as a crime by itself. The most flagrant form is where the ship is burned, scuttled or stranded by the master or crew. In Marine Insurance it includes every wrongful act willfully committed by the master or crew to the prejudice of the owner, or, as the case may be, the charterer.

Inasmuch as barratry must be directed against or in fraud of the owner, it cannot be committed by a master who is a part owner of the ship, either generally or for the voyage. Thus in the old case of Marcadier v. Ins. Co., 8 Cranch 39, the master abandoned the voyage at an intermediate port for his own emolument and advantage, and, as a result, a quantity of cargo was spoiled. It was contended that he had been guilty of barratry. The Court found, however, that he was the owner of the ship and therefore incapable of committing the offense. In Ins. Co. v. Coulter, 3 Peters 222, it was held that gross negligence might be evidence of barratry:

And when it is considered how difficult it is to decide where gross negligence ends and ordinary negligence begins, and to distinguish between pure accident and accident from negligence, we cannot but think that the British courts have adopted the safe and legal rule in deciding, that where the policy covers the risk of barratry, and fire be the proximate cause, they will not sustain the defense that negligence was the remote cause.

This case contains a quaint quotation from the doctrine of Malynes "whose book unites the recommendations of antiquity, good sense and practical knowledge." The passage follows:

Barratrie of the master and mariners can hardly be avoided, but by a provident care to know them, or at least the master of the ship upon which the assurance is made. And if he be a careful man, the danger of fire above mentioned will be the less for the ship; boys must be looked unto every night and day. And in this case let us also consider the assurers; for it has oftentimes happened, that by a candle unadvisedly used by the boys, or otherwise, before the ships were unladen, they have been set on fire and burnt to the very keel, with all the goods in them, and the assurers have paid the sums of money by them assured. Nevertheless, herein the assurers might have been wronged, although they bear the adventure until the goods be landed; for it cometh to pass sometimes, that whole ships' ladings are sold on shipboard, and never discharged.

11. Failure to Equip with Radio Telegraph.—

By Act of Congress approved June 24, 1910, 36 St. at L. 629, it is provided that it shall be unlawful for any oceangoing steamer, whether American or foreign, carrying passengers and carrying fifty or more persons, including passengers and crew, to leave any port of the United States unless equipped with efficient apparatus for radio communication in good working order, capable of communicating over a distance of at least one hundred miles, night or day, and in charge of a competent operator. To be efficient the apparatus must be capable of exchanging messages with stations using other systems of radio communication. A fine of not more than $5,000 is assessed against the master or other person in charge for violation of the act and as has been said (§5 supra) the fine is a lien upon the ship. Regulations for the enforcement of the act are made by the Secretary of Commerce. The act does not apply to steamers plying between ports less than 200 miles apart.

12. Failure to Disclose Liens.—

By the Ship Mortgage Act, 1920 (see Appendix, Merchant Marine Act, Sec. 30), a mortgagor of a preferred mortgage is required, upon request of the mortgagee, to disclose the existence of any maritime lien, prior mortgage or other liability upon the vessel, known to the mortgagor, and to refrain, until the mortgagee has had an opportunity to record the mortgage, from incurring liens upon the vessel except for wages, general average and salvage. Disobedience to this injunction with intent to defraud is made a misdemeanor punishable by a fine of not more than $1,000 and imprisonment of not more than two years, or both, and the mortgage debt is to become due immediately.

13. Mutiny.—

This term is most often used with reference to an offense committed on shipboard, although technically it is not peculiar to shipping, but may be committed by soldiers and servants. Mutiny on shipboard is defined as follows: "A revolt or mutiny consists in attempts to usurp the command from the master or to deprive him of it for any purpose by violence or in resisting him in the free and lawful exercise of his authority; the overthrowing of the legal authority of the master, with an intent to remove him against his will and the like." Mere refusal of duty or disobedience by a seaman while liable to punishment by the master is not mutiny, and the conduct may be very aggravating and contumacious without amounting to mutiny. The Stach Clark, 54 Fed. 533.

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