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by Martin Grieve
Last modified: 2012-01-21 by rob raeside
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by Martin Grieve
Extracts from the National Archives commonly make reference the use of flags in the UK. Below are selections found by perusing the Archives from the 19th Century.
September 25th 1871. Marine Department, Board of Trade.
Quotation from
(Wheaton's ?) International Law, edition 1866, note 163.
"Where a state has
authority to enquire into the national character of a merchant vessel apparently
of another state, for any purpose, whether of war or peace, it cannot be bound
by the flags or papers used. It can go behind the ostensible nationality
indicated by these and ascertain the actual nationality, which depends on the
domicile of the owner and other facts. The state may, if it chooses, hold the
ship concluded by the fact of having used the flags and papers she has knowingly
carried, if that result is favourable to the interests of the state. This is
normally done in war, and may be done in peace. It is simply the application to
the inquiry of a rule of conclusive prescription as estopped against a party.
Whether it shall be enforced depends on state policy. The vessel cannot claim
the application of the rule in its own favour." End of quotation.
"It
will thus be seen that a vessel of one nation assuming the character of another
takes upon itself the risk of both, and possesses the full immunities of
neither. And it cannot be said that such an international doctrine is at all
unreasonable. The question actually referred is, 'whether the fact of flying the
French flag debars the vessel, from claiming the protection and assistance of a
British consul.' This question is too wide to be answered by a simple negative
or affirmative and it involves considerations not only of municipal but of
international law.
Municipal Law
As regards British municipal law, I
am distinctly in favour of the view which the Admiralty appears to take, but I
think it right to observe that Mr. O'Dowd appears to dissent from this view in
some important particulars; and that if the words 'or any distinctive national
colours' are to be taken literally as meaning the colours of any nation, Mr.
O'Dowd's view of the subject, as far as relates to the application of the
Merchant Shipping Act 1854, Section 105, is undoubtedly correct. But I must give
it as my opinion, without denying for a moment that there may be arguments in
favour of the literal interpretation, that the words first quoted must be taken
with the context; and according to the doctrine so often applied by the Courts
as the words '(two indecipherable, probably Latin words)' must be held to mean
any distinctive British national colours. I consider therefore that section 105
does not forbid a British vessel to hoist foreign colours and does not give
authority to British consular officers, i.e. to take away such colours. In
short, I consider the whole of that Section, including the part relating to a
Warrant from Her Majesty or from the Admiralty, to be inapplicable to the case
of a British vessel flying foreign colours. I am equally of opinion that Section
103 para 2 of the same Act is inapplicable to the present case for it only
relates to matters or things done or papers or documents carried, with intent to
conceal the British character of such ship from any person entitled by British
law to inquire into the same, or to assume a foreign character, or with intent
to deceive any such person as lastly hereinbefore mentioned; and though the
words 'as to assume a foreign character' appear to stand alone, I consider that,
like the rest of the paragraph, they are meant to contemplate a fraudulent, or,
at least, a deceptive intent. In a case like the present, where the owners come
openly to ask permission, there can be no intent to defraud or deceive, so that
I consider the paragraph to be inapplicable. I am not aware of the existence of
any other enactment which bears on the subject, and I am therefore of the
opinion that, as far as municipal law is concerned, the 'Princess Royal' flying
French colours under the circumstances described is subject to the same
liabilities and entitled the same privileges as any other British vessel.
International Law.
With regard to international law the situation is
entirely different. It is simply impossible that a vessel, British according to
British law, voluntarily assuming, in the eyes of all maritime nations, the
character of a French ship, can lay claim to all the immunities of a British
ship sailing under British colours. Supposing for instance, that a vessel
belonging to a nation at war with France were to fire a signal to bring her to,
and, sailing on, were to fire into her, is it reasonable to suppose that the
British government could demand any apology or reparation? Such a question is
rather for the Foreign Office than for me; but I cannot conceive that there can
be any doubt about the answer. I think, speaking generally, that as regards
International law, the 'Princess Royal' cannot in all respects claim the
protection and assistance of a British consul in the same way as British vessels
carrying the British flag. [MT 9/59]
"Well established principle of
International Law that the owner of any ship using a national flag and assuming
a national character cannot upon any trial or judicial proceeding be allowed to
urge to his own advantage or in his own defence, that the flag and character so
assumed, are not the flag and character which properly belong to the ship." [MT
9/53]
David Prothero, 2 December 2010
1. Admiralty Circular No.17, 21 February 1874.
Seizure of Illegal Colours
hoisted on board merchant vessels.
Sec.105 of MSA 1854. Only Red Ensign and
white bordered Union Jack allowed on merchant ships. Lawful for any officer on
full pay in Military or Naval Service of HM and British Officer of Customs or
any British Consular Officer to board ship and take away illegal colours.
2. Before so doing Naval officer will send communication in writing and allow reasonable time to elapse.
3. In any Home Port seek approval of superior authority; in Foreign Port communicate with consul or otherwise avoid giving offence to Local Authorities.
David Prothero, 3 December 2010
1875. Statute Law Revision Act repealed 1845 Act for the Prevention of
Smuggling.
David Prothero, 3 December 2010
24 July 1883. Consul at Corunna reported that a Fenian flag had been hoisted
by Mr. Kelly, Master and owner of Brig 'Trio' registered in Dublin. Fenian flag
considered to be a national flag.
The Board of Trade minute.
"No
prohibition of fancy flags or even rebel flags if they do not resemble colours
of Her Majesty's ships or national colours. Had not been flown at the peak the
only place flag worn to show nationality. Consul acted under Instruction 18
referring to 'improper colours'. It should be altered to 'illegal colours'."
[MT 9/222 file 1883]
David Prothero, 3 December 2010
31 October 1884. Captain Robert H. Boyle of HMS 'Tourmaline', Sheerness, to
Vice-Admiral Corbett, C-in-C. Reported British merchant ships not showing
colours when passing. [MT 9/222 file1883]
4 November 1884. Admiralty
forwarded the report to the Board of Trade, adding, "Great shipping companies
not wanting in this matter. Influx to steamer class introduced a class of master
in need of instruction. What steps will Board of Trade take re failure of ships
to show their colours ?"
Board of Trade Minute.
"So far as the action
of Captain Boyle was concerned it was no doubt founded upon the Queen's
Regulations of 1879, Clause 88; 'Should a British merchant ship refuse to show
her colours to one of HM ships, the name of the ship, of the master and the
owners are to be ascertained and one or more affidavits of the facts are to be
taken on the first occasion that offers, before a consul or other competent
authority and transmitted to the Admiralty with a full report of the occurence.'
The command of the Navy has always been a prerogative of the Crown of England,
and no other authority need be sought for the regulations in question.
There still remains the question under what authority British shipmasters are
required to show their colours to HM Ships. A refusal or omission to do so can
hardly be held to be a 'matter or thing done or permitted to be done with intent
to conceal the British character of the ship from any person entitled by British
law to enquire into the same or with intent to deceive such person' within the
meaning of Sec.103 Merchant Shipping Act 1854, but perhaps that section may
furnish a sufficient text for the issue of a circular. Still the matter may in
certain circumstances be of real importance, and as the Admiralty have addressed
the Board of Trade they might be asked whether they are aware of the origin of
the regulation requiring Naval officers to report a refusal, and of the
authority under which a British ship is required on signal to show her colours
to a man-of-war. It is possible that it may turn out to be one of those customs
of the Navy, handed down by prescription from the earliest times when the
Sovereign had supreme command of the Navy and jurisdiction over merchant
seamen."
20 November 1884. Board of Trade to Admiralty. "Agree there is
more than just courtesy involved, signals concerning distress might be ignored,
but by what authority is a British merchant ship required to show colours to one
of HM ships?"
24 November 1884. Admiralty to Board of Trade. Considering
the matter.
25 February 1885. Royal Courts of Justice; Henry James, Farrer Herschell and
Alex Staveley Hill.
An officer of HM Ships is only 'entitled to enquire',
when he has reasonable grounds for believing that the merchant vessel is engaged
upon illegal business which would entail a forfeiture. Under such circumstances
he may call upon her to disclose her character, and may take every step
necessary to verify the same.
David Prothero, 4 December 2010
9 March 1885. Admiralty to Board of Trade. Suggests a Bill requiring showing
colours as desirable, and thus giving legal sanction to a time-honoured custom.
25 March 1885. Admiralty to Board of Trade. Propose to introduce Bill
making it incumbent upon British merchant vessels under moderate penalty to
display National colours and Distinguishing Flag on being signalled by HM ship.
Also to amend Sec.105 of Merchant Shipping Act 1854 to obtain power to enforce
penalty thus providing for wearing improper colours. [MT 9/360]
30 March
1885. Board of Trade to Admiralty. Agree.
31 March 1885. Admiralty Bill to be drafted.
17 April 1885. Draft Bill.
22 November 1886. Draft Bill sent by Admiralty to Board of Trade.
David Prothero, 4 December 2010
"If National Colours other than the Red Ensign etc. are hoisted on board a
ship belonging to a subject of Her Majesty then besides the penalty of five
hundred pounds, any of Her Majesty's Naval or military officers on full pay may
board such ship and take away such colours, and they are forfeited.
By
Section 103 [2] if the Master or owner of any British ship does or permits any
matter or thing with the intention to conceal the British character of such ship
'from any person entitled by British law to enquire into the same' or to
assume a foreign character, or within intent to deceive such person etc., the
ship shall be forfeited and the Master, if the offender, shall be guilty of a
misdemeanour.
The obligations upon Her Majesty's subjects are therefore
complete enough, and the penalties sufficiently severe, but it may be open to
question whether they cannot be to easily evaded in the very cases where they
have been infringed. If under Section 105 improper national colours are hoisted,
then the ship may be boarded, and if under Section 103 [2] there is concealment
of national character 'from any person entitled by law to enquire' then the
penal consequences shall follow. The Law Officers have advised that an
officer is only 'entitled to enquire' when he has reasonable grounds for
believing the ship to be liable to forfeiture.
I presume these matters
have been duly considered and that it is deemed either too serious in an
international point of view to empower HM's ships in time of peace to board a
merchant vessel and 'take every step necessary to enable the Naval Commander to
verify her national character', or it has been considered that the new enactment
itself implicitly confers such a power. The latter alternative seems however
open to doubt. In any case I merely call attention to the points in compliance
with Mr. Gray's request for my observations and suggestions from a legal point
of view."
Note in margin. "The Bill seems to me to be harmless and very
mild. It is certainly right in principle." [MT 9/360]
3 December 1886.
Board of Trade agree to draft Bill.
David Prothero, 5 December 2010
Feb 1887. White Star steamer 'Gaelic' of Liverpool was in Hong Kong flying Chinese flag at the fore and Red Ensign aft. Chinese flag removed by Harbour Master on the orders of the Admiral. White Star sought legal opinion which was that any flag could be flown providing that the Red Ensign was also flown. No further interference.
David Prothero, 6 December 2010
24 Oct 1888. British Consul, Dunkirk informed the Foreign Office that the
Schooner 'Guild Mayor' of Drogheda, entered on 19th inst. wearing an Irish
Ensign, a green flag with the Union Jack in the corner but without the harp.
Phillip Owens, the Master, had written that a green Flag with the Union Jack in
the corner was the one generally used by vessels of his port when entering ports
of England, and that until then no authorities or any other person had told him
it was wrong.
12 Nov 1888. Board of Trade Solicitor. "It was not even the
flag used by Irish ships before the Union as this contained a harp on a green
ground and in the corner a red St George's cross on a white ground." Green
ensign a mainly fancy flag and not an improper flag. Union Jack in corner shows
no attempt to conceal British character of the ship, nor to assume foreign
character. Does not resemble British National colours as defined. [MT 10/529]
David Prothero, 6 December 2010
1888. Hartlepool Ship-Owners queried the need to display an ensign. Normally hoisted only to show Customs that the vessel was arriving from a foreign port. [MT 10/529]
David Prothero, 6 December 2010
1888. 5 December. Board of Trade "Looking to the doubtful state of the law as
to the flying of 'fancy flags', i.e. Irish Ensign."
1889. 4 March. Board of
Trade. Decision made to insert a provision in the Merchant Shipping (Colours)
Bill, defining the Red Ensign, with certain exceptions, as the proper national
flag for all British merchant ships. [MT 10/528]
David Prothero, 6 December 2010
24 Oct 1888. British Consul, Dunkirk informed the Foreign Office that the
barque 'Lady Elizabeth', of Castletown, had entered on 20th wearing Manx three
legs in yellow in plain red part of Red Ensign, and asked if this was allowed.
The Foreign Office asked the Board of Trade who were told by the Admiralty
that no warrant had been issued.
Board of Trade file.
5 Dec 1888.
Looking to the doubtful state of the law as to the flying of "fancy flags".
Reference to recent case concerning the Irish Ensign.
28 January 1889.
"Until provision is made as to the time when a British merchant ship is to hoist
her flag in evidence of her nationality it is difficult to make out that a
breach of the law has been committed."
4 Mar 1889. "They are going to
insert a provision in the Merchant Shipping (Colours) Bill, defining the Red
Ensign, with certain exceptions, as the proper national flag for all British
merchant ships."
4 March. Admiralty Opinion. "Gist of section 105 of
Merchant Shipping Act 1854 is to prevent a British merchant ship from making
herself out to be a British man-of-war. Red Ensign now no longer used by the
Royal Navy, but it was at the time of the Act, and until the Act is amended must
be considered one of HM's colours, especially as Admiralty never relinquished
authority over Red Ensign. While Manx Red Ensign is not one of HM's colours, it
resembles one of HM's colours." [MT 10/528]
David Prothero, 6 December 2010
Notice given, 14 May 1889.
Question to be put, 17 May 1889, by Lord
George Hamilton.
Bill printed 20 May 1889.
"1889. A Bill to amend the
law relating to the use of flags in the British Merchant Service.
Be it
enacted by the Queen's most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:
Feb 1890. Merchant Shipping (Colours) Act 1889 made it necessary to amend
Instructions to Consuls. It was emphasised that it applied only to National
Colours, that Section 105 of Merchant Shipping Act 1854 prohibited hoisting
other than British Colours and that the 1889 Act repeated them. Intention of the
Admiralty was to prevent use by British vessels of some fancy ensigns in lieu of
national colours. [MT 9/358]
David Prothero, 8 December 2010
22 Feb 1890. Admiralty. Every mail steamer sailing from Queenstown flies
American Ensign at fore, and also on arriving New York. General practice in most
parts of the world.
8 Mar 1890. Referring to Cunard and White Star Lines;
"Usual to fly American Ensign at fore on leaving or entering port, and also to
fly at fore ensign of any country when an important official of that country
happens to be on board. British Ensign still flown in normal place in addition."
[MT 9/358]
David Prothero, 8 December 2010
In May 1890 the question of where the National Colour should be flown was
raised. The Secretary to the Admiralty wrote, "It is to be inferred that the
impression exists that the proper position for the National Colour is at the
peak or ensign staff, but my Lords point out that the law makes no definite
provision in this respect, nor would it in their opinion be practicable to lay
down any rule on the subject. [MT 9/358]
David Prothero, 8 December
2010
In November 1890 it was pointed out that coasters hoisted the Red Ensign as
the signal that a tug was required. The Admiralty suggested using the Red Ensign
made into a weft, but the Board of Trade wrote that a weft in open waters
generally meant, "I wish to communicate", and suggested that tugs should agree
another signal. The use of the Red Ensign as a tug signal was to be deprecated.
In war every merchant ship would have to show colours to Forts and Men-of-War
etc.. [MT 9/360]
David Prothero, 8 December 2010
Merchant Shipping Act 1894 (57 & 58 Vic c.60) Effective 1 January 1895.
Consolidation of Acts relating to Merchant Shipping since 1854. The whole Act
can be seen at
http://www.legislation.act.gov.au/a/db_2237/19870112-2780/pdf/db_2237.pdf.
Sections 68 to 72 covering 'National Character and Flag' are substantially
sections 103 and 105 from the 1854 Act, and sections 73 to 75 are the 1889 Act.
The requirement to hoist colours on entering/leaving British port was now
restricted to vessels of 50 tons gross or more. [BT 103/308]
David
Prothero, 8 December 2010
