1876

R v Keyn The Franconia Court for Crown Cases Reserved CCCR

The Franconia, German Ship, collided with the Strathclyde, a British ship, in the English Channel, within three miles of the English coast. The German captain of the Franconia was prosecuted in England for manslaughter of a passenger on board of the British ship. The defendant was found guilty, but the question whether an English court had jurisdiction to try the case was reserved for CCCR, the decision by 7/6 votes, was that the English court did not have jurisdiction.
Resolution
Cockburn: On board of a foreign ship on the high seas the foreigner is liable to the law of the foreign ship only. It is only when a foreign ship comes into the ports of waters of another state that the ship and those on board become subject to the local law …

[Was Keyn on British Territory? whether the three mile belt of sea surrounding Great Britain was British territory the judge said that according to ‘ancient law of England’ it was not.] [Reversed by the Territorial waters jurisdiction act 1878] [Judge then considered if in CIL a rule to that effect existed]. … to be binding, the [International] Law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty … or implied from the established usage... Nor, in my opinion, would …the unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without and Act of Parliament, what would amount to a new law. In doing so we should be unjustifiably usurping the province of the legislature… … It is obviously one thing to say that the legislature of a nation may, from the common assent of other nations, have acquired the full right to legislate over a part of that which was before high sea, and as such common to all the world; and another and very different thing to say that the law of the local state becomes thereby at once, without anything more, applicable to foreigners within such part, or that, independently of legislation, the Courts of the local state can proprio vigore so apply it…