The Case of the S.S. “Lotus” (France v. Turkey)

Judgment of September 7th 1927. Full judgment can be found here.

Background

  • Case initiated by France to the Permanent Court of International Justice (PCIJ) in The Hague which is the predecessor to the International Court of Justice.
  • This case is well known for analysing the condition of jurisdiction.
  • The judgment being in 1927, with the events that took place in 1926, the case was pre-UNCLOS (United Nations Convention on the Law of the Sea of 1982), the treaty drawn upon in particular to this event was the Convention of Lausanne on July 24th 1923, and in particular, Article 15, respecting conditions of residence and business and jurisdiction.

Facts of the case as agreed by both parties:

  • 2nd August 1926, just before midnight, a collision occurred between the French steamship named S.S. Lotus and the Turkish steamship named S.S. Boz-Kourt on the high seas.
  • The S.S. Boz-Kourt was cut in two, sank, and eight Turkish nationals aboard died.
  • Lotus attempted to save all passengers on board, who managed to save 10 persons.
  • Lotus continued its course to Constantinople (now modern day Istanbul), and arrived there on the 3rd August.
  • The first officer and watch on board of the French ship was French citizen Monsieur Demons.
  • The captain of Boz-Kourt was Hassan Bey, who managed to be saved from the collision.
  • On the 3rd August the Turkish police immediately started an investigation into the collision.
  • On the 5th August M. Demons was requested by the Turkish authorities to give evidence.
  • The Turkish authorities then arrested M. Demons, without notice given by the French Consul-General and Hassan Bey.
  • On the 28th August the case was heard by a court in Turkey, to which M. Demons argued that Turkish courts have no jurisdiction. The Turkish court objected this argument.
  • On September 11th, M. Demons demanded bail, to which it was granted on the 13th September to the sum of 6,000 Turkish pounds.
  • On September 15th, the Turkish court sentenced M. Demons to 80 days imprisonment and a fine of 22 pounds. Hassan Bey was sentenced to a more severe penalty.
  • The prosecutor of the Turkish court entered an appeal against the decision, to which effectively suspended the execution of the sentence until a decision upon appeal had been made, however an agreement made on 12th October did not effect the criminal proceedings against M. Demons in Turkey. According to France, M. Demons was imprisoned for 39 days.
  • The action of the Turkish judicial authorities gave rise to diplomatic concern from the French government. Both the French government and the Turkish government then agreed for the case to be transferred to the PCIJ in The Hague.

Case

  • The questions asked of the Court was :
    • Has Turkey violated the principles of international law with improper use of jurisdiction, and if so, what principles?
    • If Turkey are found to violate these principles, what reparation is due to M. Demons, the officer in command on board of Lotus at the time of the collision.

What did France say?

  • France said criminal proceedings against M. Demons during which a collision occurred belongs exclusively to France courts.
  • France said Turkish authorities were wrong to prosecute M. Demons, and this therefore violated international law on jurisdiction.
  • The French government want reparation amounting to 6,000 Turkish pounds paid by the Turkish government.

France furthermore argued that:

  • As the practice of international law of civilised nations, a “state is not entitled..to extend criminal jurisdiction of its courts to include a crime or offence committed by a foreigner abroad solely in consequence of the fact that one of its nationals has been a victim of the crime of offence. Putting it another way to reiterate this stance, international law does not allow a state to take criminal proceedings against the foreign offender by reason of the victim’s nationality.
  • Acts performed on the high seas in the relevance of criminal proceedings are subject to the courts of the nationality of the ship. Jurisdiction is given to the courts whose flag the vessel flies. Putting it another way to reiterate this stance, international law recognises the exclusive jurisdiction to the state of a vessel whose flag is flown. In the Court’s judgment, they mentioned that this principle is not always universally accepted, the United Kingdom refused the United States for the extradition of John Anderson, a British seaman who had committed homicide on board an American vessel. The United Kingdom recognised the jurisdiction of the United States but also mentioned the entitlement to exercise theirs.
  • The nationality of the victim is not sufficient grounds to override the above rule.
  • The act of the collision must be considered in the jurisdiction to which the ship applies.
  • Jurisdiction cannot be transferred to the nationality of the vessel sunk.
  • The fact that both ships are of different nationalities and collided together, jurisdiction cannot be transferred from one ship to another, there is no such agreement of international law to this effect.
  • In order for a Turkish court to have jurisdiction, they should be able to point towards some form of international law on jurisdiction in favour of Turkey.

What did Turkey say?

  • They argued to the court to give judgment in favour of the Turkish court.
  • In addition to France’s argument, Turkey responded, inter alia, that:
  • The place where the offence was committed was the S.S Boz-Kourt flying the Turkish flag, and so Turkish Courts have jurisdiction of the offence.
  • (A key argument) Article 15 of the Convention of Lausanne 1923 allows Turkey jurisdiction whenever such jurisdiction does not come into conflict with a principle of international law.
  • Turkey has jurisdiction, and therefore no reparation should be paid by the Turkish government to the French government.

Judgment

  • There is no rule of international law that criminal proceedings occurring from collisions at sea are exclusively within the jurisdiction of the state on whose flag the vessel is flown.
  • This therefore means, in answer to the questions asked of the Court:
    • Turkey has not violated principles of international law by instituting criminal proceedings against M. Demons.
    • As such there is no occasion to give judgment on reparation to France.

Important notice

  • After this case, a convention was signed at Geneva in 1958 (the High Seas Convention) that specifically addressed jurisdiction on collisions on the high seas under Article 11.
  • Article 11, in three paragraphs state:
    • 1. In the event of a collision at the high seas, no penal or disciplinary proceedings may be instituted against the master or any service person of the ship other than the flag state of the ship or the nationality of the person.
    • 2. For disciplinary procedures, only the state issuer of a master’s licence have the ability to withdraw it, even if the holder of the licence is not a national of the issuing state.
    • 3. No arrest or detention of a ship can be ordered by any authorities other than the flag state of the ship.
  • Had this convention been in place before the time of the Lotus collision, the judgment of the PCIJ would have been different. Turkey would not have had the jurisdiction to institute criminal proceedings against M. Demons due to Article 11 paragraph 1.
  • The exact wording of Article 11 is also included in the convention's successor, UNCLOS (United Nations Convention of the Law of the Sea of 1982) under Article 97.

Lotus Principle

  • This case highlighted what is known as the lotus principle in international law. This means that states can do as they wish unless it is made explicit that it is prohibited in international law.