The Paquete Habana 175 US 677 (1900) Case Digest

U. Balt. L. Rev., 1985

In The Paquete Habana, decided in 1900, the United States Supreme Court adopted the doctrine that coastal fishing vessels are exempt from capture as prize of war. The Court held that the exemption was an established custom of international law, which-in the absence of a controlling executive or judicial decision-should be incorporated into the corpus of our common law. The Paquete Habana influenced the development of positive rules of international law that expanded the class of civilian vessels that are exempt from capture. Recently, the lower federal courts have begun to utilize The Paquete Habana as precedent for the incorporation of international law other than that governing the conduct of naval warfare. In this article, the author analyzes the decision and its historical antecedents and examines the applicability of The Paquete Habana principle to twentieth century naval conflicts involving the United States. The author contends that the overriding importance of The Paquete Habana is its role as a monument to the continuing vitality of international law.

University of Baltimore Law Review, 1985

In The Paquete Habana, decided in 1900, the United States Supreme Court adopted the doctrine that coastal fishing vessels are exempt from capture as prize of war. The Court held that the exemption was an established custom of international law, which-in the absence of a controlling executive or judicial decision-should be incorporated into the corpus of our common law. The Paquete Habana influenced the development of positive rules of international law that expanded the class of civilian vessels that are exempt from capture. Recently, the lower federal courts have begun to utilize The Paquete Habana as precedent for the incorporation of international law other than that governing the conduct of naval warfare. In this article, the author analyzes the decision and its historical antecedents and examines the applicability of The Paquete Habana principle to twentieth century naval conflicts involving the United States. The author contends that the overriding importance of The Paquete Habana is its role as a monument to the continuing vitality of international law.

Peiris, Nuwan. "International Tribunal for the Law of the Sea." The International Journal of Marine and Coastal Law 29, no. 1 (2014): 149-157.

Natural Resources Journal, 1997

Canada's marine policy recognizes that the living resources of the sea are not inexhaustible and that the freedom offishing enjoyed on the high sea by distant water fishing nations is subject to regulation. Canada has initiated regulatory mechanisms to ensure optimal utilization, maintenance and enhancement of resources through international cooperation, in line with the 1982 United Nations Convention on the Law of the sea (UNCLOS). In particular, Canada has been forced to regulate European fishing. Diplomatic initiatives proved ineffective in securing support of the European Union towards curbing excessive fishing effort, and Spanish vessels continued to flagrantly violate the moratoria that had been imposed on 28 species of straddling stocks, including the highly endangered species of Greenland Halibut. Therefore, Canada amended its Coastal Fisheries Protection Act in March 1995, permitting enforcement action against the recalcitrant Spanish trawler, ESTAL While the EU threatened sanctions against Canada, calling the seizure of ESTAI an act of piracy and blatant violation of international law, Canada maintained that unilateral action was necessary to protect depleted fish stocks, and to ensure rational utilization of dwindling stocks of Greenland Halibut. This paper explores the background of applicable international law and the state of necessity which defines the fortuitous set of curumstances that could permit conduct prohibited by international law. It concludes that all the particularly strict conditions for a genuine plea of necessity were in existence when Canada arrested the Spanish trawler, ESTAI. It further notes, with emphasis, that measures taken were precautionary in nature. They were taken under the pressure of exceptional circumstances, namely, the grave and imminent danger which foreign overfishing poses to Canadian essential interest on the Grand Banks.

The Italian Yearbook of International Law Online, 2009

All the legal documents referring to this case and cited in this article may be found at: <http://www.justia.com>. 2 Claimant Kingdom of Spain's Motion to Dismiss or for Summary Judgment, ibid., p. 7. 3 "Salvor" is a nautical term which indicates a person who saves a vessel or its cargo. Salvage law governs salvage, which is the act of rescuing life or property from peril in water. The goal of salvage law is thus to provide an incentive to mariners' solidarity. By way of analogy, admiralty courts have applied the concept of salvage to the recovery of ancient relics. If a private actor rescues an ancient shipwreck, thus being considered a salvor, he/she is entitled to a reward. The reward often consists of a generous percentage of the value of the saved vessel or part of the sale proceedings and auctioning of recovered artifacts. NORRIS, Benedict on Admiralty: The Law of Salvage, 1991, pp. 1-4. 4 When no owner exists or can be determined, the party who recovers the property at sea is entitled to the application of the law of finds. Under this doctrine, title to the abandoned property is given to the finder. While under salvage law, the salvor merely possesses the ship, under the law of finds, he/she is entitled to property, as the law of finds assumes that "the property involved was never owned or was abandoned". See WILDER, "Application of Salvage Law and the Law of Finds to Sunken Shipwreck Discoveries", Defense Counsel Journal, 2000, pp. 92-105, p. 93. 5 "[…] The Republic of Peru affirms and restates its sovereign and other rights in property that originated in its territory or was produced by its people […]".

1996

International maritime transport is the most important mean of transport in international trade. This activity is realized through the use of vessels, which present the unique characteristic of traveling through the seas, sometimes inside jurisdictional water of the states, sometimes on the so-called high seas. This special character of ships presents a special interest for the conflict of laws studious, because of the existence of several jurisdictions on which the vessel realizes its function, and whose laws are potentially interested in being apply to eventual controversies arising from the acts of the ship. Furthermore, since early ages vessels confronted major perils in the sea differents to those in land, so the same participants in this activity, vessels' owner and cargo owners, created particular rules of law in order to make logical the exercise of maritime commerce. 2 characteristics that are important to look at. The fact that confllict of laws are competence of state courts, has produced opposed approaches and several theoretical positions about the solutions of this issues. On the other hand, maritime law has received a special treatment by the United States constitution, and it is exclusive competence of the federal government. This situation has translated in unique rules applicable to maritime conflict of laws. However, the theories proposed to solve state conflict of laws have influenced the solution of maritime conflict of laws in federal courts. In first place, I will give an introduction to United States conflict of laws theory and their application by federal courts. At this level, my exposition will be brief, because of the complexity of this problems, that would imply a complete work of investigation. In second place, I will analyze conflict of laws in admiralty and maritime jurisdicition, first in general and second in each particular institution of this area of law. In this sense the study of the case law is fundamental. Finally, I will study the Venezuelan system of private international law with special attention to the field of maritime law conflicts. Also I will look at the new legislative proposals now in discussion in Venezuela. I hope, at the end of this investigation, to find certain points of contact between both system, and if one of them is more developed than the other, as I expect to conclude, how the Venezuelan legislation can be improved by the incorporations of the American ideas, or if some of those solutions are incompatible with the purposes and expectations of the Venezuelan law. Normally, the field of Conflict of laws includes the study of problems of choice of the applicable law as a principal subject, but also includes jurisdiction, proof of foreign law, recognition of foreign acts and judgements, and international procedural law. However, I will only deal in my investigation with problems of choice of the applicable law for a simple reason: a researching comprehending all subject will be too ambitous. I think that my investigation would be more productive dealing with a restricted field of study than trying to reach all aspect of Conflict of Laws. CHAPTER II PREAMBLE Before start to deal with the specific problems of maritime conflict of laws, is essential to review some concepts that are necessary to consider, in order to understand my area of study. First, I will give you some ideas about Maritime Law, and then I will briefly review the United States conflict of laws system. A. Maritime Law Maritime Law or Admiralty' is the area of Law which studies the legal consequences of the transport through water. Approximately three quarters of the world's international commerce is taken care by water. This can give us an idea of the importance of the development of coherent legal rules, which can not create obstacles to a very dynamic economical activity. One of the principal characters of Maritime Law is its international essence." Mostly all situations that maritime law regulates, contain factors from different countries. As consequence, legislators must have in mind that when they enact a legal rule, this would probably affect foreign parties in their economic activities with national parties. From ' For a differentiation between Admiralty and Maritime Law, see 1 THOMAS SCHOENBAUM, Admiralty And Maritime Law 2 (1987). Even if there are differences between Admiralty and Maritime Law, for my purposes we will give them the same treatment. ". admiralty law rules frequently have an international origin"; Id. at 155. See also R. RODIERE

2006

At the Third United Nations Conference on the Law of the Sea, the United States delegation took the lead in negotiations concerning provisions on the settlement of disputes. In its view, a system of peaceful and compulsory settlement of disputes was one of the main objectives to be pursued as one of the essential aspects of an overall comprehensive law of the sea settlement. The influence of the United States on the negotiations and on the final text of the Convention is evident, notwithstanding the many permutations made necessary by the compromises reached in order to obtain consensus. Although, after 1994, all of the Administrations have been in favor of the U.S. accession to the Convention, the dispute-settlement provisions that were considered among the main attractions of the Convention by the Clinton Administration, are viewed as much less important and attractive by the present Administration, which has, inter alia proposed that the exception to compulsory jurisdiction for m...

The International Journal of Marine and Coastal Law, 2018

Cloaking the cargo of sunken colonial vessels with flag State immunity creates pro tempore resolutions through procedural impediments that inevitably reward illegal acts, revitalize colonial policies and extend periods of unjust enrichment. Immunity should only be extended when conventional law requirements are met and applied in conformity with any rules applicable between the parties in light of present-day conditions. Absent immunity, States with verifiable links could argue merit-based claims in unbiased fora that could rely on modern legal principles, rather than those prevailing when the cargo sank, to adjudicate contemporary disputes. Merit-based resolutions would address the Pandora’s box resulting from the convergence of advances in underwater technologies and the socio-political shifts that occurred since the cargo sank. Historically inert pauses under water unique to other legal quagmires offer an inimitable opportunity, when immunity is restricted, to adhere to modern et...