ABSTRACT
3.1 On 1 December 1873, President Ulysses S. Grant, in his fifth annual message to the Senate and House of Representatives, considered the appropriate treatment of vessels registered by a flag State while on the high seas. He described the steamer Virginius that in September 1870 had been duly registered at the port of New York as a part of the commercial marine of the United States and received the certificate of her register in the usual legal form. In October 1873, while sailing under the flag of the United States on the high seas, she was forcibly seized by a Spanish gunboat and was carried into the port of Santiago de Cuba where 53 of her passengers and crew – consisting of US, British and Cuban nationals – were summarily tried by court-martial for piracy and executed by firing squad. He stated:
It is a well-established principle, asserted by the United States from the beginning of their national independence, recognized by Great Britain and other maritime powers, and stated by the Senate in a resolution passed unanimously on the 16th of June, 1858, that – American vessels on the high seas in time of peace, bearing the American flag, remain under the jurisdiction of the country to which they belong, and therefore any visitation, molestation, or detention of such vessel by force, or by the exhibition of force, on the part of a foreign power is in derogation of the sovereignty of the United States.
The government of Spain believed that the vessel and her crew were aiding insurgents on the island of Cuba, then part of the Spanish empire. The Spanish contention was that, since the vessel was in fact Cuban owned, she must have obtained her American papers by fraud and was not entitled to the protection of the American flag. The US Attorney-General Williams accepted that because of the concealment of the Cuban-national beneficial ownership at the time of registration – the oath and declaration upon registration that there was “no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence, or otherwise, interested in such ship or vessel” was false – there was no right, as between her true owners and the United States, to carry the American flag. The US response was rather that the question of whether or not the ship was entitled to fly the American flag was a matter purely for US jurisdiction. 1 The proposition that 28the courts of the flag State alone are competent to determine the right to fly a national flag appears to have been accepted by Spain, which restored the vessel to the control of the US government and paid the sum of $80,000 by way of reparation and also certain compensation to the families of the deceased British seamen. 2