Questions of Public Law (1737)
Cornelius van Bynkershoek
To Whose Ships Respect must Be Shown, and on What Occasion, Whether Damage Sustained on Account of Failure to Show Respect Should Be Averaged as in the Case of Jettison
IN order that the occasion for war may be avoided we must also consider to whose ships respect is due and when. The whole problem practically depends upon the question of who holds dominion of the sea; for if any sea is under the dominion and rule of a sovereign, he has the right to impose the laws there, and others are obliged to obey the laws because they are subjects there. Accordingly, if any sovereign commands that respect be shown his ships and strongholds on seas that belong to him it must be shown; if, however, he gives such a command on seas that are not his, he can be disregarded with impunity. On the subject of the dominion of the sea I have expressed my opinion in a special volume entitled Dissertatio de Dominio Maris, published in 1703. And I have not yet altered my opinion. Those who opposed my views afterwards I answered in the second edition of the pamphlet, published among my Opera minora which appeared at Leyden in 1730. In that pamphlet I made a distinction between the sea that is near land and the outer sea, mare exterum; to the former I assigned as much as could be controlled from land, as for instance by the range of a cannon; what the sovereign cannot thus control from land I called the outer sea. I assigned the proximate sea to the dominion of the sovereign who ruled the land, whereas I denied all sovereignty over the outer sea, except in so far as it is occupied and held in possession in the intention of a master, for I held that as soon as he gave up possession his sovereignty over it also ceased. Hence I drew the conclusion that at present. no outer sea is under the dominion of any sovereign since none of it is in possession of any. If I am correct in the arguments I there presented, especially in Chapters II-IV, the consequence is that he who rules the proximate sea also has the right to demand that salutes be given there and to command how they shall be given.
Accordingly, the Estates of Holland had a full right to decree as they did on May 16, 1670, that the fort of Kronenburg in the straits of the Baltic belonging to the Danish King should be saluted according to the wishes of the King, and the States-General properly decreed on January 3, 1671, that commanders of their vessels should give a salute in the marginal sea within the range of the cannon (binnen of onder’t canon van de Forten) according to the desires of the sovereign of that coast; and it must be left to the decision of that sovereign whether he desired to answer the salute, for, as was added, the prince is sovereign in his own dominion, and foreigners are subjects there. This being true, Philip II, the King of the Spains, was not right when in section 23, Title I, of the Leges Nauticae (October 31, 1563), he forbade his ships to lower the flag bearing the arms of the Spanish King for the sake of saluting in the harbours of a foreign power. Nor can we approve the refusal of a French ship in 1671 to salute a Genoese fort past which it was sailing. These cases apply to the proximate sea.
But in the outer sea, which belongs to the sovereignty of no prince, no one has the right to demand homage from others or to exact salutes for his ships. And in so far as the above-mentioned section 2 3, Title I, of the Leges Nauticae apply to the outer seas it is in my opinion entirely correct. There are certain signs of respect that one may honourably render, though it would be dishonourable to exact them. As, for instance, a man may use his own discretion in showing or refusing to show respect for one of greater dignity whom he chances to meet in public; and similarly a ship meeting in the outer sea another ship of a greater power, be the ships of any rank whatsoever, may give or withhold a salute. Accordingly the judge of the higher court in France, reversing the decision of the lower court, correctly acquitted and dismissed the ship of Hamburg which had failed to lower its sails to a royal French ship in the Spanish waters.
And yet because of the great injustice of sovereigns, it is not always possible to secure these rights. Indeed, the rulers who lay claim to sovereignty over some sea, as the French do over the Mediterranean, the English over the British Sea, the Venetians over the Adriatic, the Genoese over the Ligurian, desire their sovereignty to be respected and are ready to take up arms if reverence is not shown. I shall not give instances of this, for we are overwhelmed with the abundance of them. I think I have shown in my Dissertatio de Dominio Maris that those nations which I have mentioned have no legal rights over any other nations on the seas which they claim, and that, therefore, they have no right to demand that special respect be shown their ships by the ships of other countries in those waters. But this they can obtain by means of treaties, that what they have no right to otherwise, they secure through the fear and cowardice of others. Accordingly, one nation may by treaty owe to another what it does not otherwise owe, as Zentgravius correctly observes in the matter of salutes. In this way, according to section 13 of the peace between England and the United Provinces, dated April 5, 1654, it was agreed that whatever ships of the United Provinces met a royal war-vessel in the British Sea should lower its top-wimple and top-sail, according to ancient usage, to quote the phrase. I shall give the passage since the meaning of the words will come up for discussion presently: ‘That the ships and vessels of the United Provinces, both war-vessels and others, which may meet a war-vessel of this state (England) in the British Sea shall lower the flag of the top-mast, and the top-sail, even as it was always customary in former times.’ And these same words are repeated in section 10 of the treaty between the King of England and the States-General dated September 14, 1602, and again in section 19 of the treaty of the same powers dated July 31, 1667.
With reference to this agreement, the question has been raised whether even the whole fleet of the United Provinces was bound to show respect to any one royal vessel of England of whatsoever class. This question was warmly discussed and fought over in 1671 and 1672. When the fleet of the Netherlands was stationed near the Dutch coast in August 1671, Charles II of England sent to it one of his pleasure vessels, a yacht, which was, however, armed with cannon as such vessels often are. Presently the royal yacht demanded a salute from the Dutch admiral, according to the treaty. And when the admiral failed to comply the English vessel fired upon his ship. Charles, already angry at the Netherlands, seized the occasion to declare war in March, 1672; for he mentions this affair as the principal count in his public charges, and indeed the other alleged causes were most trivial. In a voluminous decree the States-General refuted the whole list of charges, saying with reference to the above-cited sections 13, 10, and 19, that these seemed not to apply in a case involving the whole fleet of the Netherlands. Now this point I question. Would the sections be irrelevant because there were several Dutch ships and only one royal ship? But these clauses speak of ships of the United Provinces, using the plural; and presently they speak of one royal ship. Likewise it does not matter whether our ships were or were not war-vessels since this point is explicitly made in the clauses in question. We must conclude, therefore, that neither the number nor the nature of the vessels exempted them from the duty of giving the salute.
But the point I would have noticed is that those war-vessels constituted the whole navy, and the complete navy may, as it commonly is, be compared to strongholds, forts, and ports, to which strangers do and should give the first salute. I add that the fleet at anchor apparently has possession of that part of the sea where it is stationed, in so far as and as long as it is stationed there. If it has possession, that part of the sea is then under the sovereignty of the power holding .possession, according to the arguments presented in Chapters IV and V of my De Dominio Maris. And the first salute is always and everywhere rendered a sovereign in his own territory. Furthermore, it is recorded that the Dutch fleet was then stationed close to the shore near Zealand, and therefore not in the British Sea, if we may trust the letter which the syndic of the Estates of Holland wrote on September 22, 1671, about the affair to the ambassador of the States-General who was then in England. If it was not in the British Sea the treaty does not apply. If the fleet was stationed near the land, we may hold that the admiral was right in not lowering the flag and the top-sail, since the proximate sea is considered by common usage of nations to be under the same sovereignty as the land, as I have more fully shown in Chapter II of De Dominio Maris, and over that land, namely Zealand, the King of England has never claimed any rights nor has any one conceded any to him. I know that in my own day an English ship once attacked a ship of Zealand near the port of Flushing because it did not salute. But since the ship in question was at anchor there, and accordingly within the dominion of the Estates of Zealand, the attack was manifestly most unjust. To all the above we may add the consideration that at most the clauses in question (sections 13, 10, and 19) require only that our ships must salute an English ship of war in the British Sea. But I am by no means convinced that a pleasure yacht can be considered a war-vessel. At any rate the craft we call yachts are of no service in naval battles so far as I have read or heard.
But however you interpret the treaties it certainly was unjust to declare war on the grounds of that case, especially since the States-General not only repudiated the behaviour of the fleet, but also affirmed to the king’s envoy who had come to discuss the incident that the whole fleet would in the future lower flags and sails even to one royal ship if the King desired it. The Estates in fact were exceedingly unwilling to be dragged into this war by the King, and the more judicious men of England ridiculed the fact that this incident should be offered as a pretext for war. When peace was again restored every cause for dispute was removed, for in section 4 of the treaty signed between the two states on February 19, 1674, it was agreed that however many ships of the Netherlands, whether singly or in groups, whether war-vessels or others, should meet even a single English vessel which bore the royal jack or flag, they should lower and remove the top-sail and the top-wimple of the main-mast, and this should be done on the whole of the sea that lies between Cape Finisterre and the North (the central point, namely, Stadland, Norway). And in section 4 the Estates affirm that they recognize this right as due the king. They were doubtless satisfied to enjoy the use and the benefits of the sea, giving way readily to the ambition of others when it did not involve loss to themselves.
I will take this occasion to discuss the question whether the loss should be averaged as in the case of jettison when a ship sustains damages from an attack due to refusal to pay respects to another. Weitsen records that this rule was sustained in 1545 when a warship of the French king did great damage to a Zealand ship because it did not lower its flag; and it was supported on the ground that the loss was considered as sustained in behalf of the ship’s safety and its cargo. The rule was accordingly laid down, he says, in section 28 of the Leges Nauticae of Charles V, dated July 19, 1551. But I do not agree with this opinion, for the loss should not be averaged unless it is sustained in behalf of all concerned, and when there is immediate peril to the ship and cargo, and very urgent need is pressing. Doubtless the Zealand ship and its cargo would have been equally or more safe if it had lowered its flag in deference to the French, as it was by fighting with them. Perhaps you will say that it had to resist the French for the prestige of our state, and that it could not rightly lower the flag since this act would disgrace the state. But that argument would be valid in proving that the aggressor is not responsible for damage to those who sustained loss in the attack provided the attack was justifiable : it is not valid in proving that others must contribute to a man’s loss when he fought not for them but for the prestige of the sovereign. The commander of the warship is right in demanding respect due his sovereign from the treaties or other reasons, and he is guilty of treachery or some other crime if he does not exact it. But the captain of a merchant ship either owes or does not owe the respect; if he owes it and fails to render it, surely he alone is responsible for the loss sustained. And I think that he alone is just as responsible if he fights rather than show his respects, even though they are not due. His duty is not to fight for the honour of his sovereign but for the safety of his ship and cargo. It were better to lower the flag than expose his ship and cargo to the danger of attack-; for how does it concern the owners of the vessel and cargo, whose interests he is directed to protect, whether he renders or denies homage? And why should they bear the loss entailed solely by the obstinacy of the captain?
The loss need not therefore be averaged unless there be a law stipulating this, or a penalty be decreed for showing respect in such cases. For instance, section 28, title I, of the Leges Nauticae of Philip II (October 31, 1563) says, that if any one acts contrary to the ordinances of the preceding sections his ship shall be seized and confiscated. Now, if there were a penal law of the same kind which prohibited captains to lower flags or sails to any ships of other nations, and it stipulated that ships and cargo were to be confiscated in case this were done, then it would be possible to defend the contention that the loss should be averaged which was sustained through refusal of homage; for in that case we must consider that the captain had fought for the preservation of both ship and cargo. What Weitsen adds, namely that his opinion was adopted in the stipulation contained in section 28 of the Leges Nauticae of Charles V, is not true. This clause merely stipulates that losses sustained in the defence of a ship against pirates and enemies shall be averaged, a clause which is also repeated in section 2, title IV, of the Leges Nauticae of Philip II, as well as inserted in the Frisian laws. But the ground for this is quite different, for a battle with pirates or enemies is always fought in behalf of the safety of both ship and cargo.