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INTRODUCTION

The Flight from Flag to Flag

The flag of a nation is a powerful symbol, and protection of the flag is no mere ritual. When the flag is physically attacked, the people and the government naturally respond. Thus, the story of the merchant fleet’s flag is a crucial and central part of the history of a nation’s engagement abroad, in peace and war.

The United States has a rich history of engagement with the sea. The thirteen British colonies in North America that declared their independence in 1776 all had seaports on the Atlantic coast or on waterways that led to the Atlantic Ocean. Some of the grievances that led to the Declaration of Independence were maritime in nature—particularly the Sugar Act of 1764 and the Tea Act of 1773. With the exception of some of the Indian wars, all of America’s wars engaged the American Navy, and indeed, many of the wars that the United States fought in the nineteenth and twentieth centuries were caused by incidents involving attacks on U.S. naval or merchant shipping or bombardment of a fortification in a harbor. In the twenty-first century, the U.S. Navy remains the strongest in the world, but its flagged merchant fleet is small, ranking at twenty-second in the world in registered tonnage.¹

The United States’ sensitivity to the reception of its merchant flag in foreign ports and on the high seas is deeply related to the nation’s sense of its identity. In the eighteenth-century world in which the United States declared its sovereignty, acceptance of and respect for U.S.-flagged ships were both essential to national identity. If the flag were not respected, foreign trade by American merchants in U.S. ships would have been nearly impossible. Recognition of the merchant flag was a matter not only of practical business or legal national status but also—and perhaps most important—of national honor. The principle of freedom of the seas, which held that ships of all nations had equal rights to travel on the high seas (out of the territorial waters of any nation), had been articulated in 1609 by Hugo Grotius in Mare Liberum. U.S. statesmen and journalists were well aware of this principle in the early years of the republic and understood that failure to recognize the right of ships under the U.S. flag to sail the open seas would be a failure to recognize the United States as a nation.²

Flags, of course, are highly emotional symbols, not only in the United States but around the world. Often the presence of a national flag on board a merchant ship is a source of pride, but if a ship is attacked, disrespected, or discriminated against, its flag can be a source of dismay.

When the United States entered into treaties of commerce and navigation and exchanged consuls, ministers, and ambassadors with other nations, recognition of the nation took legal, economic, and diplomatic form. But the symbol of that recognition was respect and honor shown to the flag itself, both on ships and at the diplomatic outposts of the nation abroad. Later in the nineteenth century, Americans developed their version of the cult of the flag, a phenomenon found in Europe and Asia in the same period. As the cult flourished in the United States, it was replete with ceremonial practices and a pledge of allegiance to the flag; the symbolism of the stars and stripes became even more deeply embedded in the American psyche.

From the earliest days of the American republic, the treatment of U.S.-flagged merchant ships abroad was considered a matter of honor. The code of honor among ships was similar to the code of honor among gentlemen that led to hundreds of duels in that era. Throughout the nineteenth century, ships flying the U.S. flag frequently, in the course of legitimate (and sometimes illegitimate) business, drew the nation into conflict with other nations—sometimes into war and more often into maritime “incidents” that only threatened to lead to larger armed conflict. While the honor code among gentlemen declined in the United States in the nineteenth century and nearly vanished after the Civil War, the rhetoric of national honor still shaped public discussion of the treatment of the national flag, whether it was flying on a naval ship, on a merchant ship, or at an embassy or consulate in a foreign city. The issue took on far greater significance in 1917, when German U-boats sank U.S. merchant ships that prominently displayed the flag, dragging the United States into World War I. Following that war, the public and Congress, disillusioned with Woodrow Wilson’s lofty and largely unrealized war goals, were content to see the transfer of some U.S.-owned shipping to foreign flags, under which the ships could be operated at lower cost and without drawing the nation into another military conflict in defense of the flag’s honor.

When war broke out in Europe again in September 1939, the United States was able to remain neutral for twenty-seven months precisely because much U.S.-owned shipping had rapidly shifted to foreign flags; when some of those foreign-flagged ships carrying petroleum and other cargo to the Allies were sunk, the American flag was not endangered, and national honor did not require U.S. involvement in the war. The handful of episodes directly involving U.S.-flagged merchant ships did not generate the crisis that had arisen in 1917. The nation entered the war only after Japan’s direct attack on the U.S. naval base at Pearl Harbor, an attack characterized by President Franklin Roosevelt as “dastardly” and perceived by the public as a stab in the back. The flag and the nation had been struck, not on merchant ships but on Navy ships, a naval base, and U.S. airfields without warning, even as peace talks supposedly proceeded in Washington. During U.S. participation in World War II, official U.S. policy further endorsed the use of the Panamanian and other flags for some U.S.-owned or -controlled ships.

Aside from diplomatic and military considerations, the straightforward business and profit lessons U.S. ship-owning corporations learned in the period of neutrality (1939–1941) and during World War II led them in the 1950s and 1960s to greatly expand their flight from the flag, primarily to the flags of Panama and then Liberia. Operating a ship with a foreign crew under a foreign flag was simply cheaper. Despite the protests of American merchant mariners and their unions, the courts ruled that U.S. law did not apply to labor conditions on board American-owned, foreign-flagged ships; instead, the laws of the flag state applied. In these decisions, the courts reflected an obscure 1905 ruling of the Permanent Court of Arbitration at The Hague regarding the grant of the French flag to slave-trading dhows in the Indian Ocean operating out of the sultanate of Muscat. The flight from the flag and the flight from U.S. labor law have become firmly and legally established.

In the late twentieth century and early twenty-first century, the decline in the number of ships flying the U.S. flag remained a concern to American mariners who found employment opportunities greatly reduced; cruise ships, tankers, and freighters, owned by American corporations or American investors in foreign corporations, fly foreign flags and hire very few, if any, Americans. The dismay at the decline of the U.S.-flagged merchant fleet is shared by many Americans who take pride in the national maritime heritage, not from any personal economic motive but as part of their sense of national identity.

The attraction of operation under foreign flags in the late twentieth century produced a new generation of flags of convenience that drew shipowners from the major maritime nations of Europe as well as from the United States. Consequently, in the early twenty-first century, the face of the world’s merchant shipping is entirely altered, with a large percentage of ships now registered under flags of microstates around the world.

From time to time in recent decades, one of the few merchant ships flying the U.S. flag has set off an international incident, requiring a short display of U.S. military force that echoes the honor code of the earliest days of the republic. However, since 1939 the United States has avoided becoming involved in war to defend freedom of the seas and the honor of the American flag because of the flight of American-owned shipping from flag to flag. This work unfolds that tale.