The law of the sea

APPENDICES

APPENDIX I
SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES

Jasper Yeates Brinton[33]

SUMMARY OF THE NAVIGATION LAWS OF THE UNITED STATES

While the navigation laws of the United States are in many respects the most advanced and progressive of any in the world, the form in which they exist is far from satisfactory and is a serious handicap on their usefulness. They are voluminous and complicated and in much confusion. Even on comparatively simple topics it is often impossible to distinguish the law of to-day from the law of yesterday.

The reason is not hard to find. It lies in the fact that these laws represent one of the oldest bodies of statute law in the books, and for well over a century have been subject to a steady piecemeal amendment, but with little or no attempt at revision or codification. The result is that on almost every subject there is a bewildering overgrowth of laws—law after law covering and partly modifying, but seldom explicitly repealing, the older law, which thus remains as a stumbling block to even the expert reader.

A complete revision is urgently needed and has been undertaken by the Shipping Board. In the meantime, it is of course desirable that knowledge of the laws as they exist shall be made as conveniently accessible as possible and the summary herewith is presented as a contribution towards that end. It does not pretend to be either complete or exhaustive, but merely undertakes to cover very generally the principal topics, with a somewhat more extended reference to the practical aspects of ship registry as embodied not only in the laws but in the regulations and practices which have grown up around them.

Most of the statutes which have been summarized herein except the recent Merchant Marine Act (Jones Bill) and other laws of this year will be found in the 600 page compilation of the Navigation Laws (1919) prepared with the thoroughness and accuracy to be looked for from any work issued under the direction of the present Commissioner of Navigation. It may be procured from the Superintendent of Documents, Washington, at the cost of one dollar. Subject to the obvious limitations on any compilation which must necessarily include a large body of conflicting and practically obsolete statutes, the work is in every respect admirable. The volume, however, is confined to statute law, and for much of the practical information covering those branches of operation of ships involving the agency of the customs service, including the documentation of vessels, reference must be had to the Customs Regulations, the last edition of which was published under date of 1915, and which may also be secured from the Superintendent of Documents.

In addition to these two principal compilations reference should also be made to the series of Rules and Regulations of the Board of Supervising Inspectors, issued by the Steamboat Inspection Service, Department of Commerce, to the various publications of the Department covering the Rules of the Road, the International Rules, the Inland Rules, and the Pilot Rules, respectively, together with the notable series of pamphlets issued by the Department from time to time, covering such special subjects as the Measurement of Vessels, the Comparative Study of Navigation Laws of the Maritime Nations, and other similar topics. So far as the writer is aware, however, there is no volume which contains any general summary of the whole body of our navigation laws.

I. Ship Registry

Therefore, if a ship is actually owned by American citizens, her nationality is American, and she is entitled to the protection accorded to American property all the world over, regardless of the fact that for any reason she may not be entitled to, or may not desire to take, American registry.

The rule as to the use of a flag is somewhat different and more strict in England. Under the Merchant Shipping Acts the use of a British flag on board a ship owned either in whole or in part by persons not lawfully qualified to own a British ship, subjects the vessel to forfeiture. But there are no such provisions in the law of the United States and questions as to the improper use of the flag of this country upon vessels have not arisen, although occasional diplomatic negotiations have been undertaken to prevent the use of the American flag in foreign countries. Generally speaking it may be said that the United States has been extremely lax in regulating the use of her flag.

In 1892, a special act was passed granting American registry to certain foreign-built vessels of the American Line under conditions as to the building of other vessels, but this was a special and very limited proviso.

The Panama Canal Act of 1912, however, made a radical change in our policy and opened American registry to foreign-built vessels not over five years old, owned by American citizens, although denying to these vessels the privilege of entering the coasting trade.

The Ship Registry Act of 1914 went a step farther and removed the limitation as to age, and also authorized the President to suspend, as to these vessels, the rigorous provision that the watch officers of all vessels engaged in foreign trade should be citizens of the United States. This authority was exercised by the President and many such vessels have been registered.

In 1915 a law was passed to facilitate the transfer of American-owned vessels from foreign to domestic registry by a repeal of the prohibitory duties on such vessels on condition that before leaving an American port they should secure the necessary documentation.

The Shipping Act of 1916, as amended in 1918, and again by the Merchant Marine Act of 1920, further enlarged the scope of the registry laws by providing that vessels (whatever their previous history) purchased, chartered or leased from the Board by citizens of the United States may be registered, or enrolled and licensed, or both enrolled and licensed, as vessels of the United States and entitled to the benefits and privileges of such documentation.

The various classes of vessels now entitled to registry under these laws may be thus divided:

(1) American-built vessels which have always been American-owned;

(2) American-built vessels formerly owned by foreign owners, but subsequently purchased by American citizens;

(3) Vessels captured in war lawfully condemned and owned by citizens;

(4) Vessels forfeited for breach of the laws;

(5) American-built vessels sold by the government to citizens, and foreign-built vessels bought or chartered by the government and sold to citizens;

(6) Vessels whose documentation is authorized by special act;

(7) Wrecked vessels purchased by citizens and repaired in American shipyards on proof that the repairs are equal to three times the appraised salved value; this is a special permission which is a dead letter except as to the coastwise trade, as wrecks can now be admitted to registry for foreign trade regardless of the amount of repairs;

(8) Vessels for foreign trade wherever built, wholly owned by citizens of the United States;

(9) Vessels purchased, chartered or leased from the Shipping Board by citizens of the United States.

Barges, lighters and other boats provided with sails or internal motive power, if falling within these classifications, are entitled to documents, as also barges and boats without sails or internal motive power engaged in the Canadian trade or employed upon the marine waters of the United States or engaged in the carriage of passengers.

The following classes of vessels are not within the provisions of the registry laws and therefore require no documents:

(1) Boats or lighters not masted, or if masted and not decked, employed in the harbor of any town or city and not carrying passengers.

(2) Barges or canal boats or boats without sails or internal motive power employed wholly upon canals or on the internal waters of the state and not engaged in trade with contiguous foreign territory and in carrying passengers;

(3) Barges or boats without sail or motive power, plying on inland rivers or lakes of the United States, also not engaged in trade with contiguous foreign territory and in carrying passengers;

(4) Vessels plying waters wholly within the limits of the state having no outlet into a river or lake on which commerce with foreign nations or among the states can be carried on.

Originally the license, which is applicable only in the coasting trade, was an altogether separate document from the enrollment, the form of each document being provided by statute. In 1906, however, the two documents were consolidated into one, so far as enrolled vessels were concerned, leaving the license only to be required in the case of smaller vessels. As the law now stands these documents are distinguished as follows:—

Registry is required, for vessels engaged in the foreign trade and in the trade with our insular possessions, except Hawaii and Porto Rico, and is permitted to vessels engaged in the domestic trade under certain requirements as to entry at the Custom House when laden with certain commodities, etc. There is but a single form of register.

Enrollment of License is required for vessels of twenty tons or over when engaging in the coasting trade. Separate forms are issued for the coasting trade or fisheries, and for yachts.

License alone is required for vessels between five and twenty tons when likewise engaged in the coasting and fishing trade.

Vessels of less than five tons may not be licensed, nor may pleasure vessels of less than sixteen tons be documented except under special instructions from the Department of Commerce.

In general form and purpose these documents closely resemble each other and further consolidation and simplification is badly needed.

In addition, under an act passed in 1917, the Shipping Board was given authority in its discretion to permit vessels of foreign registry, and foreign-built vessels which had been admitted to American registry under the Act of 1914, already referred to, to engage in coastwise trade during the war, and for three months thereafter.

This latter act has been in terms repealed by the Merchant Marine Act of 1920, but with the proviso (§ 22) that all foreign-built vessels admitted to American registry, which were owned on February 1, 1920, by citizens of the United States, and all foreign-built vessels owned by the United States on the date of the signing of the Act (June 5, 1920), when sold and owned by citizens of the United States, may engage in the coastwise trade so long as they continue in such ownership.

The general policy above outlined is supplemented by a further proviso of the Merchant Marine Act (§ 27) forbidding the transportation of merchandise between points in the United States, or such of its possessions as are subject to the operation of the coastwise laws, in any other than documented vessels of the United States, owned by citizens of the United States, except in the case of the vessels to whom the privilege has been extended by the provisions above referred to.

Practically each step in the process of securing the ship's papers is marked by the production or issuance of one or other of a number of important documents. These steps are as follows:

Prior to 1866 the penalty for the violation of this requirement was the severe one of forfeiting her status as a vessel of the United States. To-day the penalty is a fine of $30 upon every arrival of the vessel in a port.

In addition to this, every steam vessel of the United States is required to have her name conspicuously placed in distinct, plain letters not less than six inches high, on each outer side of the pilot house, and in case the vessel is a side-wheeler, then also upon the outer side of each wheel-house. "Double-enders" may place the names on the parts corresponding to the bow and stern; and on vessels whose sterns do not allow sufficient space for lettering, the letters may be placed on adjacent parts so as to conform as closely as possible to the requirements, and provided always that the home port shall be marked at one end of the vessel.

Scows, barges and other vessels with square bows may be marked on the bow instead of the side, where such marking would be speedily worn out by chafing against other vessels.

The "home port" as required to be marked on the stern of the vessel, may mean either the port where the vessel is documented, or the place in the same district where the vessel was built, or where one or more of the owners reside. From this it follows that the home port need not be the port of documentation, for, as already noted, the law is that the vessel must be registered in the district which includes the port to which the vessel at that time belongs, such port being defined by law as that at or nearest to which the owner, or if there be more than one, the managing owner of the vessel, usually resides.

Questions as to what is a vessel's "home port" frequently arise in connection with contracts for repairs and supplies and liens arising from the same. As will be seen the port of registry and the home port may often be quite different places.

It is also required that the owner's affidavit shall name the master of the vessel together with a statement that the master is a citizen, with a note of the means whereby he acquired his citizenship. The person thus named by the owner is thereby deemed her master for all legal purposes, regardless of the question of his competency, or as to who actually commands the vessel, but no name of a master who has not the necessary license to command a vessel of the class in question will be accepted by the Collector. Thus, while in the case of a barge any citizen may be named as the master, or one citizen may be named as master for any number of barges, in case of a tug or larger vessel requiring a licensed master, the person named as master must be licensed and qualified to perform this duty. This, however, is entirely irrespective of whether he has in fact assumed or does in fact assume actual command over the vessel. For such purposes the command may be a nominal one.

The importance of this document is illustrated by the fact that the penalty for a statement knowingly false is a forfeiture of the vessel, or of its value, to be recovered from the person by whom the oath was made.