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The Threat from the Sea

1.

Roll on, thou deep and dark blue ocean—roll!” wrote Byron in a comradely salute to the last great romantic wilderness on the planet. “…Man marks the earth with ruin—his control/ Stops with the shore….” In 1818, he could hardly have foreseen that it would not be very long before man would mark the ocean, too, with ruin, poisoning whole seas with his industrial effluent, or fishing them out with vast synthetic nets deployed by immensely powerful hydraulic winches. Yet the sea is still wild: as global warming takes hold, shipwrecking storms are beginning to blow more fiercely, and with greater frequency, than they did in Byron’s time, and the reach of the law of the land over the anarchy of the sea is, if anything, even more tenuous now than it was then. Mankind has always had much to fear from the ungovernable sea, and never more so than in this period of international terrorism, when who knows what abominations may soon arrive on our shores from the lawless terrain of the world’s oceans.

The application of national law to events on the high seas was dealt with in a highly readable book by A.W. Brian Simpson, Cannibalism and the Common Law, published in 1984.* Simpson, now a professor of law at the University of Michigan, concentrated chiefly on the landmark case of Regina v. Dudley and Stephens (1884), which arose from the unhappy last voyage of the yacht Mignonette.

In mid-May 1884, Mignonette sailed from Southampton, England, bound for Sydney, Australia, with a crew of four professional seamen who were commissioned to deliver the boat to her new Australian owner. On July 5 she was wallowing in a violent storm in the South Atlantic when a poorly timed maneuver put her broadside-on to a huge breaking sea. The force of the wave broke away the bulwarks and a section of planking on the leeward side; as the yacht quickly sank, the crew scrambled into a cockleshell dinghy, taking with them basic navigational instruments and two cans of turnips as their only provisions. They had heaved a half-full water cask into the sea, hoping to pick it up later, but it disappeared from sight.

On July 9, they caught a passing turtle and ate it, bones and all. By July 21 there was talk of drawing lots to decide which of themselves should be killed for food, though it seems that no draw probably took place. On July 24, the captain, Tom Dudley, a devout Anglican churchgoer, took his penknife to the throat of the seventeen-year-old cabin boy, Richard Parker, severing the jugular vein and catching his blood in the ship’s chronometer case. On July 29, while the survivors were still dining on the remains of young Parker, they were spotted by a passing German ship, and taken back to England, where the captain and mate (the deckhand escaped prosecution because he was needed as a witness for the Crown) were put on trial for murder.

Legally speaking, a ship is much like a floating embassy, a detached chunk of the land whose flag it flies, so that seamen aboard a British ship are subject to the same laws that govern their brethren ashore. Mignonette was a registered British ship, and had the act of cannibalism taken place aboard the yacht, there would have been no question about whether an English court had jurisdiction in the matter. But, as the defense counsel for the crew argued, Richard Parker had been killed in the dinghy, not a registered ship, in international waters, so that no court, English or otherwise, could rightly try a case concerning an act committed in a wilderness without laws. This ingenious proposition was not well stated by the defense counsel, Arthur—soon to be Sir Arthur—Collins, QC, who bungled most of his best arguments in the trial. The judges made no sense of it at all, but in his book Brian Simpson gives that first line of defense more weight than it was credited with at the time.

The second line of defense (again far better put by Simpson than by counsel) was that the situation in which the men found themselves at sea was so extreme that the law of the land could hardly apply to it:

In desperate conditions, such as those confronting Dudley and Stephens [the mate aboard Mignonette], men are reduced by circumstances to a state in which it is incongruous to think of laws applying at all. They are in a state of nature, where there are no legal rights, duties, or crimes…. Laws exist to regulate social arrangements in normal conditions, not in wholly abnormal conditions when society breaks down. Arthur Collins toyed with this approach, but he never formulated the idea at all clearly. The judges seem to have been quite incapable of grasping it….

The befuddled judges in the courtroom were anxiously trying to counter popular opinion expressed in the dockside pubs of England, where there was little doubt that the trial was an outrage. The lore, as opposed to the law, of the sea was quite clear: so long as lots had been properly drawn beforehand, the crew of Mignonette had obeyed the rules and could not be guilty of a crime. Public sympathy was with the men and against the lawyers. The sea had its own code of justice, and the lubberly invasion of men in wigs and gowns was resented as an impertinent trespass on hallowed maritime tradition, in which “survival cannibalism” was an accepted social practice.

The newspapers of the time sided with the judges: the idea that the sea was a realm beyond law, at a time when the sea afforded the arterial highway system of the British Empire, was a dangerous affront to the order of things. As the Spectator editorialized,

The conviction that such murders are justified by the law of self-defence, and are not, therefore, illegal, is so general amongst seafaring men, and has so infected naval literature, that a solemn judgement to the contrary, pronounced by more than one judge, has become indispensable.

The jury found the men guilty of murder as charged, but pleaded for mercy on their behalf. The judge then sentenced them to death—though he did not put on the traditional black cap while doing so. The sentence was almost immediately commuted to one of six months’ imprisonment without hard labor. So society was protected from the wild customs of the sea by the most solemn pronouncement in the English lawbook (“You [will] be taken to the prison where you came, and that on a day appointed for the purpose of your execution you be there hanged by the neck until you be dead”), while the sea-lawyers in the pubs were mollified by the shortness of the jail time actually served for the offense. Captain Tom Dudley earned the ultimate accolade of Victorian celebrity: Madame Tussaud’s found space for his wax effigy.

Simpson’s book, which ranges far and wide in its discussion of gory tales of men in dire straits at sea, memorably documents the fraying of law as it reaches out into international waters. The cherished principle of “the freedom of the high seas” is barely separable from the troubling fact that the ocean is a licentious wilderness where people have always been able to get away with doing things they could not do on land.

2.

Fresh from reporting on chaos at the site of the Twin Towers in American Ground, William Langewiesche has taken on the rampant legal chaos of the sea in the twenty-first century. The Outlaw Sea is in part a sequence of lucid and often thrilling stories about recent founderings, groundings, and acts of piracy. It is also an unsettling appraisal of the laws, treaties, conventions, traditions, and organizations which, meant to regulate the sea, succeed largely in creating myriad loopholes for ingenious rogues to exploit. According to Langewiesche, the watery seven tenths of the globe are littered with some 143,000 ships: most sail under “flags of convenience,” registered in such countries as the island state of Tuvalu in the Pacific; many are dangerous rustbuckets, nearly all are undermanned, with crews on third-world wages. The owners of these vessels, hidden behind multiple fronts and shell companies, are hard—and sometimes impossible—to trace. Though there now exists an International Law of the Sea (still not ratified by the US) and its enforcing body, the International Maritime Organization, the best efforts to police the sea have so far proved alarmingly ineffective. Meanwhile, as Langewiesche dryly notes, Osama bin Laden and his associates “are in the shipping business,” with a considerable fleet of elderly freighters. The whereabouts and identities of these much-sought-after ships are unknown: in the way of the sea, their present names, and the flags they now sail under, are buried so deep in an ocean of misleading paperwork that they are beyond discovery.

The flag of convenience—that flimsiest of legal fictions—bears much of the blame for the lawless state of the sea. Few ships engaged in international trade have ever come within sight of the port of registration displayed on their sterns. Vessels owned and operated by entities within the US and the European Union go about the world as detached chunks of Liberia or Belize, subject to the tolerant provisions of Liberian or Belizian law on manning, pay, maintenance, and safety. Owners of fishing boats have lately taken to reflagging in order to evade onerous conservation measures enacted by their actual home countries. It is a marvelous, Alice in Wonderland– like system, and irresistible to prudently cost-conscious shipowners and scheming lawbreakers alike.

Langewiesche says that the practice

began in the early days of World War II as an American invention sanctioned by the United States government to circumvent its own neutrality laws. The idea was to allow American-owned ships to be re-flagged as Panamian and used to deliver materials to Britain without concern that their action (or loss) would drag the United States unintentionally into war.

My understanding is that reflagging for base commercial reasons began well before World War II, and seamen’s unions in the US fought against it in the 1930s. Interestingly, Conrad’s Typhoon (1902) begins with the ominous reflagging of the steamship the Nan-Shan, whose colonial British owners, Messrs. Sigg and Son, “judged it expedient to transfer her to the Siamese flag.” Mr. Jukes, the first mate, is affronted by the new flag, which tellingly sports a white elephant on a red ground, though the dim and literal-minded Captain MacWhirr—Conrad’s model of the new breed of machine-age captains—sees nothing wrong with it. Determined to keep to schedule and save Messrs. Sigg the cost of the extra coal required to steam around the edge of the storm, MacWhirr insists on driving his ship straight through the center of the typhoon. It’s part of Conrad’s purpose that we associate the multiple misfortunes that befall the Nan-Shan, and her miserable cargo of two hundred Chinese coolies, with the “queer flag” under which she sails, beyond the reach and protection of English law. At the end of the story, Jukes writes a letter to a friend, complaining that the reflagging had left the ship in a situation of precarious legal solitude:

  1. *

    A.W. Brian Simpson, Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise (University of Chicago Press, 1984), p. 353.

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