Vous êtes sur la page 1sur 2

The Paquete Habana - Exam Brief 175 U.S. 677 Keyed to Damrosch 5th customary int.

law: here were two principles, there're general state practice and opinio juris Facts: Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag were fishing off the Cuba coast. They were owned a Spanish subject that was born in Cuba and living in Havana. The vessels were commanded by a subject of Spain, also residing(gyvenantis) in Havana. Their cargo consisted (krovin sudar)of fresh fish, caught by their crew(gulos). The fish were kept alive to be sold alive. Until stopped by the blockading squadron (na, eskadrils) they had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. Issues: Whether a court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter? Holding: Yes Analysis: By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing( pripastamas) their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. In 1403 and 1406 Henry IV ordered that fisherman of foreign nations become under his special protection so that the fisherman in the course of their duty would not be hindered, interfered, or molested by any of his subjects. The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence. Several authorities of other nations and treaties prohibit the taking of any fishing vessels as a prize of war. In addition, the United States allies in previous wars have also prohibited it. The court looked to these decisions to determine the current state of Customary international law. Rule: A court may look to established rules of other nations when their own nation lacks any treaty, legislation, proclamation, or instruction that is on point for a particular matter. Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat.

Dissent or Concurrence: Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting: The district court held these vessels and their cargoes liable because not satisfied that as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from seizure. This court holds otherwise, not because such exemption is to be found in any treaty, legislation, proclamation, or instruction granting it, but on the ground that the vessels were exempt by reason of an established rule of international law applicable to them, which it is the duty of the court to enforce.

Teismas gali atrodyti nustatytas taisykles kit taut, kai savo tautos neturi jokios sutarties, teiss aktai, skelbimas, ar nurodymas, kad yra take konkreiu klausimu. Kai nra sutartis ir nra valdymo konsultantai arba teiss aktas ar teismo sprendimas, kurortas turi bti turjo civilizuot taut tradicijas ir paproius, ir, kaip rodymas j, teisinink ir komentatoriai darb, kurie met darbo, mokslini tyrim , ir patirtis apie save ypatingai gerai susipain su dalyk, i kuri jie gydyti. Apygardos teismas nusprend, iuos laivus ir j krovinius, atsakinga, nes ne "sitikinusi, kad teisiniu poiriu, be joki potvarkius, sutarties ar paskelbtomis vejybos laivai, ios klass yra atleidiami nuo areto. is teismas turi kitaip, ne todl, kad toks atleidimas nuo mokesio, galima rasti visoms sutartims, teiss akt, skelbimas, ar mokymui j suteikianios, bet ant ems, kad laivai buvo atleistos dl nustatytos taisykls joms taikomos tarptautins teiss, kuri ji yra teismo pareiga vykdyti.