The photo of Bush and wife walking on the carpet with a flag print on it at ground zero should be enough to infuriate anybody.
My argument is the gold fringe indicates an Admiralty Ensign.
Found this reference from Bouvier's law dictionary.
A lengthy read though.
I found a verifiable citation for "law of the flag" in BOUVIER'S LAW DICTIONARY, Baldwin's Students Ed. (1946), FLAG, pp. 423-424 (italics in original, boldface emphasis added, [F.] = "Fed. Rep." = Federal Reporter in original):
Law of the Flag. An expression supplied to the municipal law of the country to which a ship belongs of which the flag is the symbol, when that law is resorted to in preference to the lex loci contractus [The law of the place where an agreement is made.] for the construction and effect of a contract or the determination of a liability affecting the ship or her cargo.
The law of the flag is "to regulate the liabilities and regulations which arise among parties to the agreement, be it of affreightment or by hypothecation, upon this principle, that the ship-owner who sends his ship into a foreign port gives a notice by his flag to all who enter into contracts with the shipmaster, that he intends the law of that flag to regulate those contracts, and they must either submit to its operation or not contract with him or his agent at all;" Foote, Priv. Int. L. 408; and in England this rule is usually followed, the tendency being that, in the absence of indication of the intention of the parties the presumption is in favor of the law of the ship's flag; Scrutton, Chart. Part 11; contra, 3 Moo. P. C, N. S. 272; 129 U. S. 397; 12 Q. B. D. 589; 10 id. 540; in which cases it was held that the lex loci contractus must prevail. In his treatise on merchant shipping (3d ed. 170) MacLachlin thus states the rule as to the effect of the law of the flag on the authority of the master. "The agency of the master is devolved upon him by the law of the flag. The same law that confers his authority, ascertains its limits, and the flag at the mast-head is notice to all the world of the extent of such power to bind the owners or freighters by his act. The foreigner who deals with this agent has notice of that law, and, if he be bound by it, there is no injustice. His notice of the national flag which is hoisted on every sea and under which the master sails into every port, and the circumstance that connects him with the vessel isolates that vessel in the eyes of the world, and demonstrates his relation to the owners and freighters as their agent for a specific purpose and with power well defined under the national maritime law; id; this was suggested by the author quoted as a possible explanation of the apparently anomalous exception of bottomry bonds from the general rule that the lex loci contractus prevails.
This precise rule was followed in the leading English case of Lloyd v. Guibert, where the question was as to the master's authority to bind the ship-owner; L. R. 1 Q. B. 115; S. C. 6 B. & S. 100, and 33 L. J. Q. B. 245; S. C. on appeal 35 id 74; 6 B. & S. 120.
In this case, in the Queen's Bench, Blackburn, J., in language almost exactly following the above quoted, applied the law of the flag (French), which did not recognize a personal liability of the owner in a bottomry bond, as against the lex loci contractus (Danish), or the laws of the place of performance (English), or that of the place when the cargo was loaded (Haytien). The court after noting the "singular absence of authority" said that two American cases had been cited; 1 La. 528 and 3 Sto. 465, adding that "neither of these decisions is binding on us, but we have derived very great assistance from them." As to the last of these cases there follows this comment: "The very learned judgment of Mr. Justice Story just referred to affords a complete answer to a plausible argument in which was suggested that the general maritime law clothed the master with power to bind his owners absolutely, and that the municipal law of the owner's country was analogous to secret restrictions in the ostensible authority of a partner or other agent clothed with general power." In the Exchequer Chamber, where the judgment was affirmed, Willes, J., said: "The general rule, that where the contract of affreightment does not provide otherwise, there, as between the parties to such contract, in respect of sea damage and its incidents, the law of the ship should govern, seems to be not only in accordance with the probable intention of the parties, but also most consistent and intelligible, and therefore most convenient to those engaged in commerce." The same doctrine was applied by the English Court of Appeal to the master's control over the cargo as well as the ship, by Brett, L. J., in L. R. 7 P. D. 137; by Dr. Lushington in Br. & L. 38, and in a later case by Sir J. Hannen, who sustained a sale of part of a damaged cargo, where it was shown by the result to have been unnecessary, such sale being authorized by the law of the flag; [1891] Prob. 328. But see 1 La. 249; id 528, where the lex loci contractus was held to prevail.
In 3 Sto. 465, although the law of the flag was, in fact, enforced, the decision cannot be said to have followed the rule laid down by MacLachlin, as in that case the particular point decided was as to the liability of the owner of the freighter, when the former was a citizen of a state the laws of which did not recognize such liabilities, while by the law of the state in which the freighter resided and also of the foreign port where the cargo was shipped, such a liability existed, and the lex domicilii of the ship-owner was held to govern the contract. See also 8 Pet. 538; BOTTOMRY.
As to the effect of the law of the flag, upon the construction of a contract of affreightment, the decisions in this country as a rule are usually governed by the lex loci contractus. In the case of The Brantford City, Judge Brown thus stated this rule: "The 'law of the flag' . . . does not embody any rule of legal construction. Literally, it is but a concise phrase to express a simple fact, namely, the law of the country to which the ship belongs, and whose flag she bears, whether it accords with the general maritime law or not. In so far, however, as the law of the flag does not represent the general maritime law, it is but the municipal law of the ship's home. It has, therefore, no force abroad, except by comity. But foreign law is not adopted by comity, unless some good reason appear in the particular case why it should be preferred to the law of the former. The most frequent and controlling reasons are the actual or presumed intent of the parties or the evident justice of the case arising from its special circumstances.
On this ground, the law of the ship's home is applied by comity, to regulate the mutual relations of the ship, her owner, master, and crew, as among themselves; their leins for wages, and modes of discipline; 1 W. Rob. 35; 1 Low. 455; 3 [F.] 577; 29 [F.] 127. For the same reason it is also applied, by comity, to torts on the high seas, as between vessels of the same nation, or vessels of different nations subject to similar laws, though not if they are subject to different laws; 105 U. S. 24. Independently of the intent of the parties, the law of the flag has no application to cases of tort, as between ships or persons of different nationalities and conflicting laws; and Federal law, by which stipulations of a common carrier exempting him from the consequences of his own negligence are held to be against public policy and void, is controlling in cases of suits brought here upon shipments made here on board foreign ships under bills of lading signed by foreign masters, though such stipulations be valid by the law of the ship's flag." 29 [F.] 373.
This case is expressly approved by the supreme court in a case upon the same point, which is the leading American case upon this branch of the subject; 129 U.S. 397, 461. See comments on this case by the circuit court of appeals; 67 [F.] 493. Precisely the contrary view, under almost identical circumstances, was held in the case of The Missouri and the doctrine of Lloyd v. Guibert was held to extend to this particular point; 41 Ch. Div. 321. Where both the law of the flag and the lex loci contractus were British, the law of England was held to govern the contract; 63 [F.] 268; 60 [F.] 247. In a shipment of goods in England, in an English vessel, on an ordinary bill of lading, the liability of the vessel is to be determined according to the law of the place of shipment, as the law of the flag; 19 [F.] 101. So also where the bill of lading was made expressly subject to "a live stock contract." and there was an express provision in that contract that all questions relating to the bill of lading should be determined by British law; 24 [F.] 922. But the circuit court of appeals, in a similar case, where the bill of lading contained the "so-called flag clause" (that liability should be determined by the law of England, but there wasno reference to this in the charter, made in this country), held it no evidence to modify the latter and that it was ineffective to substitute the law of the flag for the lex loci contractus with respect to the stipulation for exemption from liability for negligence; 66 [F.] 607; affg. 56 [F.] 126.
Generally it may be said that the doctrine of the Missouri is in conflict with the current of authority in England, it being usually held in that country that as to such stipulations in the bill of lading the lex loci contractus prevails; 9 Q. B. D. 118; 10 id 521, 540; 12 id 596; 3 Moo. P.C. N. S. 272; and to the same effect and under precisely similar circumstances is a judgment of the court of cassation in France, imperfectly stated in a note to the case last cited and fully reported in 75 Journal du Palais (1864) 225, and see 1 Dalloz 449. This question, it may be remarked, is as yet scarcely to be considered settled by any hard-and-fast rule of law, and the only certain guide, says Bowen, L. J., "is to be found in applying sound ideas of business, convenience, and sense to the language of the contract itself with a view to discovering from it the true intention of the parties." “The only fool bigger than the person who knows it all is the person who argues with him.
Stanislaw Jerzy Lec quotes (Polish writer, poet and satirist 1906-1966)
