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55. Collection of sources on entry into port under force majeure.

ENTRY INTO PORTS UNDER FORCE MAJEURE

• There is a clear customary law right of entry into ports by ships in distress in order to preserve human life.

• A ship does not have an absolute right to enter foreign ports or internal waters in order to save its cargo, where human life is not at risk, if the gravity of the ship’s situation is outweighed by the probability, degree and kind of harm to the coastal State that would arise were the ship allowed to enter.

• It appears to be a well settled rule of customary international law that a ship entering a foreign port by reason of force majeure or distress is not subject to the jurisdiction of the port State in connection with actions to relieve the distress.

Diplomatic practice

• Secretary of State Webster letter to Lord Ashburton, British plenipotentiary, August
1, 1842:[1]

“If a vessel be driven by weather into the ports of another nation, it would hardly be alleged by anyone, that, by the mere force of such arrival with in the waters of the state, the law of that state would so attach to the vessel as to affect existing rights of property between persons on board, whether arising from contract or otherwise The local law would not operate to make the goods of one man to become the goods of another man. Nor ought it to affect their personal obligation, or existing relations between themselves; nor was it ever supposed to have such effect, until the delicate and exciting question which has caused these interferences in the British islands arose. The local Jaw in these cases dissolves no obligations or relation lawfully entered into or lawfully existing according to the laws of the ship’s country.”

Views of commentators

Right to enter port:

· P. Jessup, The Law of Territorial Waters arid Maritime Jurisdiction 194 (1927):

“Distress

“There is one condition under which a foreign vessel in territorial waters may claim as of right an entire immunity from the local jurisdiction. The condition is that such presence in territorial waters be due to force majeure. If a ship is driven  in by storm, carried in by mutineers, or seeks refuge for repairs or provisioning, international customary law declares that the local state shall not take advantage of its necessity. The question has frequently received the attention of the American courts and other branches of the government.”[2]

· G. Schwarzenberger, I International Law as applied by International Courts and Tribunals 197-198 (3rd ed. 1957):

“The limitation imposed on territorial jurisdiction by the rules of international customary international law which govern foreign ships in distress offer a typical illustration of the manner in which rules of jus aequum develop in international law. For centuries, the position of foreign ships in coastal waters was precarious. If prohibitions against the entry of foreign ships existed, the full rigour
of the law might be enforced against them. As a matter of grace, the necessity which forced such ships to contravene local law might be taken into account.  Gradually, the privileges of ships in distress were laid down in specific clauses of numerous treaties between maritime powers. By means of the operation of the most-favoured-nation standard, the scope of such rules was still further extended.

“Rules of this kind were considered so much in accordance with a  constructive interpretation of the working principle of reciprocity behind  international law and the courtesy of the sea that, since the nineteenth century, far-reaching immunities of ships in distress from local jurisdiction were taken much for granted in relations between civilized nations. At this stage they came to be treated  as rules of international customary law or, other words, opinion juris sive necessitatis attached to this beneficial international custom.[3]

“Moreover, the original character of these rules as treaty clauses impressed on them the stamp of jus aequum. They were not to be interpreted as jus strictum, but in an equitable manner. Thus, ships in distress have not only a right to seek shelter in the territorial sea, but also the right of free access to national ports and, while in the port of the coastal State, they even enjoy certain immunities from local jurisdiction.”

· McDougal and Burke, The Public Order of the Oceans 110 (1962):

“The one customary right of access [to foreign ports], quite universally accepted, arises from the humanitarian obligation to admit vessels in distress because of weather or damage to the vessel. A threat to the safety of the vessel,  or person on board, is generally considered to require the suspension of coastal laws prohibiting or severely punishing entry into port without coastal consent.[4] Coastal competence to exclude is not completely overridden however; if the entry of the vessel in distress would threaten the health and safety also of the port and its population, exclusion may still be permissible.”

· A.V. Lowe, The Right of Entry into Maritime Ports in International Law, 14 San Diego L. Rev. 597, 610 (1977):

“The Right of Entry in Distress

“All merchant ships in distress have a right to enter the ports of a foreign State. This right is grounded upon humanitarian considerations.[5] It therefore attaches to the distress boat rather than to its flag State and is not affected by questions of recognition.”

· Ships in Distress, 11 Encyclopedia of Public International Law 287-289 (1989):

“While the 1982 Convention [on the Law of the Sea] is silent on the right of ships in distress to enter foreign ports, this customary right is universally accepted arid arises from the humanitarian obligation to admit vessels seeking refuge in port by reasons of weather, fire on board, engine trouble or other disaster endangering persons on board. Such entry is generally considered to require the suspension of coastal laws prohibiting or severely penalizing entry into port without coastal consent. But a coastal State may still close its ports if its vital interests so require or the entry of the vessel in distress would threaten the health and safety of the port and its population. . . .”.

· R.R.Churchill & A.V. Lowe, The Law of the Sea 63 (3d ed. 1999):

“The one case where there is a clear customary law right of entry into port concerns ships in distress. If a ship needs to enter port or internal waters to shelter in order to preserve human life, international law gives it a right of entry. . It is,  however, unsafe to extend that principle further. In particular, it is by no means clear that a ship has a right to enter ports or internal waters in order to save its
cargo, where human life is not at risk. At least in circumstances where the condition of the ship carries a risk of serious pollution, the better view is that  coastal States may forbid such ships to enter their internal waters if measures have been taken to save the lives of persons on board: the decision should be taken by weighing the gravity of the ship’s situation against the probability, degree and kind of harm to the coastal State that would arise where the ship allowed to enter.”[6]

Jurisdiction of port State:

· G. Schwarzenberger, I International Law as applied by International Courts and Tribunals 197-198 (3~ ccl. 1957):

“On the narrower question of the right of access to ports by foreign ships in distress, the Kate A. Hoff case (1929) provides relevant authority. If they are ‘forced into port by storm, or compelled to seek refuge for vital repairs or provisioning, or carried into port by mutineers,’ they may even claim exemption, ‘at least to a certain extent, from the operation of local laws.’ [citations omitted]
“Thus, for instance, a coastal State is fully entitled to exact customs duties from a ship which enters its territorial sea or ports for the purpose of discharging her cargo. To insist, however, on this right in relation to a ship which merely desired to take temporary shelter and does not intend to unload its cargo would be morally an abuse of rights. Actually, as specific rule of jus aquum, by which a ship in distress is exempted from local jurisdiction regarding involuntary violation of the municipal law of the coastal State provides an equitable solution of the dilemma.”

· Colombos, The International Law of the Sea 329-330 (6th rev. ed. 1967):

“~ 353. Vessels in distress—When a ship is driven to take refuge in a foreign port by stress of weather, or is compelled to do so by force enajeure or any other overruling necessity, she is not subject to the local regulations of the port with regard to any incapacity, penalty, prohibitions, duties or taxes in force at that port. The same principle is follow in the United States.. . The rule based on circumstances of force majeure extends to ships seeking refuge in a foreign port for vital repairs or a strict necessity of provisioning. In such a case, international customary law “declares that the local State shall not take advantage of the ship’s necessity.”[7]

· D.P.O’Connell, The International Law of the Sea, vol. II, at 853-854 ((Shearer ed. 1984):

“The idea that ships forced by circumstances within the jurisdiction of other States are immune from its exercise . . . is as old as the Law of the Sea . . . .. and literary explanation is sparse. . . . The principle being one of involuntary action, it was applied to cases of force majeure other than stress of weather. . . . Goods brought into the United States by superior force or by inevitable necessity were deemed not to be imported and so not liable to duty unless sold, consumed, or incorporated to local property.”[8]

· American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, vol. 2, § 512 RN 5 (1987):

“The authority of the coastal state generally applies to ships ‘voluntarily in port’, not to ships driven to take refuge in a port by force majeure or other necessity.”[9]

· Ships in Distress, 11 Encyclopedia of Public International Law 287 -289 (1989):

A ship that has entered a foreign port because of distress is normally exempt from customs and other duties. . . . - But even if a situation of distress objectively exists, the coastal State will not grant immunity to the vessel entering its port or its territorial waters if this vessel is engaged in illegal activities such as piracy, traffic in arms, drug traffic or smuggling. . .

Oppenheim’s International Law, vol.1, parts 2—4, § 204, at 624-625 (9th ed. Jennings & Waifs eds. 1992):

“§ 204 Vessels in distress. By ancient custom a foreign vessel which has to take refuge in a port owing to stress of weather or other danger to its safety, enjoys a certain immunity from the local jurisdiction.”[10]



[1] Moore, Digest of International Law 353, 354 (1906), citing Webster’s Works, vol.VI, 303, 306. Secretary Webster’s letter related to the taking of the Creole by mutineers into a British port.
[2] The relevant decisions and correspondence is then set out by Jessup in pages 194-208. To the same effect, see 11 G. Hackworth, Digest of International Law 277-282(1941).
[3] Citing to The Creole (1855), Moore, 1 International Arbitrations, p. 4375, at pp. 4377 and 4378.
[4] Citing to The Kate A. Hoff Case [1929-301 Ann. Dig. 129 (No. 82); The May v. The King, [1931] Can.
Sup. Ct, 374, [1931-32] Ann. Dig. 154 (No. 82); Rex v. Flohant, [1935] 2 D.L.R. 685, [1938-40] Ann. Dig.
164 (No. 6 1). In Cushin and Lewis v. The King, a Canadian court held that a ship entering in distress must
still conform to some coastal laws, including in the immediate case, the requirement of filing a report with the
collector of customs. [1933-34] Ann. Dig. 207 (No. 87); (19351 Can. Exch.103. See also Jessup, The Law of
Territorial Waters and Maritime Jurisdiction 194-208 (1927); Institute of International Law, 47 Annuaire(II)
486 (Resolution adopted by the Institute of International Law 1957); Schwarzenberger, International Law as
Applied by International Courts and Tribunals 197-98 (3rd ed. 1957).
[5] Citing to the Creole case (1853) reprinted in J.B. Moore, International Arbitrations 4375; R. v. Flahaut [1935] 2 D.L.R. 685 (Canada); the Carlo-Alberto case, [1832] S. Jur, I, at 664 (France); [1808] The Eleanor, 6 C.Rob. 39 (U.K.); the Kate A. Hoff, 5 Ann. Dig. 129 (1929).

[6] See the Guidelines on places of refuge for ships in need of assistance, IMO resolution A.949(23), December 5, 2003.
[7] Citing Jessup at 194. Other citations to the opinion of Justice Story in The Brig Concord, 9 Cranch 387 (1815); The Louise F, 293 Fed. 933 (1923) and The Rebecca, 23 AJIL 860 (1929).

[8] U.S cases cited in support of these propositions include Hallett & Browne v. Jenks, 3 Cranch, 210, at 219 (Marshall, Ci, 1805); The New York, 3 Wheat. 59(1818); Brig Concord, 9 Cranch 387 (1815); The Diana, 7 Wall. 354(1869); The Nuestra Senora de Regla, 17 Wall. 29(1873).
[9] Citing Kate A. Hoff Claim (United States v. Mexico (1929), 4 R. Int’l Arb. Awards 444 (1951)
[10] Citing Chief Justice Marshall’s decision in Hallet & Browne v. Jenks, 3 Cranch 210 (1805).


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