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The reasons why courts should not decline to take jurisdiction in the case of vessels of the character in question could seemingly be advanced at least to some degree against the action which it appears was taken by Judge Chatfield of the District Court of the Eastern District of New York, in deciding that, without prejudice to the court's jurisdiction, the steamship Glenedin, a private merchant vessel, under requisition to the British Government, might be released to that Government for the purpose of being used as a public vessel on the giving of a bond to secure the claim or to return the vessel except as the needs of the British Government might keep it elsewhere while under requisition or charter by the British admiralty.18

In the case of the Maipo,19 the District Court for the Southern District of New York held that a naval transport owned by a foreign government and in its possession through a naval captain and crew, although chartered to a private individual to carry a commercial cargo, was not subject to seizure under process of an admiralty court of the United States in a suit by shipper for damage to the cargo. The contention appears to have been raised by the libelant in this case that the ship was subject to process because of its use for commercial purposes. A case of this character appears to raise a question of jurisdiction somewhat more vexatious than that involved in the case of a requisitioned vessel engaged in trade.

In the case of The Charkieh,20 Sir Robert Phillimore held that a vessel owned by the Khedive of Egypt, though flying the flag of the Turkish Navy, was not free from process in rem, when she had come with a cargo to England and had been entered at the customs like an ordinary merchant vessel. While the case apparently was decided on the ground that the Khedive was not an independent sovereign, the court said:

I must say that if ever there was a case in which the alleged sovereign (to use the language of Bynkershoek) was "strenue mercatorem agens," or in which, as Lord Stowell says, he ought to "traffick on the common principles that other traders traffick" it is the present

18 Decided November 27, 1918.

19 (July 8, 1918) 252 Fed. Rep. 627.

20 Law Rep. 4 A. & E. 59.

case; and, if ever a privileged person can waive his privilege by his conduct, the privilege has been waived in this case.

It was not denied, and could not be denied, after the evidence that the vessel was employed for the ordinary purposes of trading. She belongs to what may be called a commercial fleet. I do not stop to consider the point of her carrying the mails, for that was practically abandoned by counsel. She enters an English port and is treated in every material respect by the authorities as an ordinary merchantman, with the full consent of her master; and at the time of the collision she is chartered to a British subject, and advertised as an ordinary commercial vessel. No principle of international law, and no decided case, and no dictum of jurists of which I am aware has gone so far as to authorize a sovereign prince to assume the character of a trader, when it is for his benefit; and when he incurs an obligation to a private subject to throw off, if I may so speak, his disguise, and appear as a sovereign, claiming for his own benefit, and to the injury of a private person, for the first time, all the attributes of his character; while it would be easy to accumulate authorities for the contrary position. (See, especially, Kluber Europe. Volkerrecht, Sec. 210, and authorities cited in note.)

Judge Mayer in his decision in the case of The Maipo referred to the case of The Charkieh as the "sole authority for the libelant's view" of the status of The Maipo and said that the former had been overruled by The Parlement Belge." In that case the court held that an unarmed packet belonging to the King of Belgium and in the hands of officers commissioned by him and employed in carrying mails was not liable to be seized in a suit in rem to recover redress for a collision, and that the fact that the vessel had been engaged in trade did not take away the immunity attaching to it as a public vessel, the property of an independent sovereign.

Judge Mayer's opinion in the case of The Maipo is evidently in harmony with the decision in the Parlement Belge, and with the general trend of American and British cases involving questions with regard to the immunity of government owned property.22 However, it is submitted that there is a sound doctrine in the observations made by Sir Robert Phillimore in the case of The Charkieh with regard to

21 (1878) L. R. 5 P. D. 197.

22 The Siren, 7 Wall. 152; The Davis, 10 Wall. 15; Stanley v. Schwalby, 147 U. S. 508; Hassard v. Mexico, 61 N. Y. Supp. 939; The Athol, 1 Wm. Rob. 374.

the forfeiture of immunity by a government owned vessel employed for commercial purposes.

The experience of judicial and administrative authorities in the United States during the last few years, when navigators of requisitioned vessels and government owned vessels have frequently been involved in litigation in courts in this country, and when large quantities of various kinds of property have been purchased here in behalf of foreign governments, suggests the unfortunate consequences of a general rule that courts of the United States are without jurisdiction to entertain a suit against the property of a foreign government within the jurisdiction of this country. If the theory of such an immunity is carried to its logical conclusion, it would seem to follow that not only may persons be deprived of the right to institute proceedings involving government owned property in tort and in contract but governmental authorities may be debarred from imposing equitable taxation on such property and from subjecting it to laws generally applicable to similar privately owned property. To the objection that the taking of jurisdiction by the courts in cases of this character is derogatory to the sovereignty of the government to which the property belongs, it seems a sufficient answer that it is equally and indeed considerably more derogatory to the sovereignty of the country in which the property is found to be shorn of vital attributes of sovereignty, exercised through administrative and judicial authorities, in order that such immunity may be granted.

It is interesting to observe in connection with this question of immunity of government owned vessels that the Act of Congress of September 7, 1916,23 contains the following provision with regard to the operation of vessels purchased, chartered or leased from the United States Shipping Board:

Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole, or in part, or hold any mortgage, lien or other interest therein.

The importance of harmonious practice among nations with re

23 39 Stat. L. 728.

gard to questions such as those roughly sketched in this article is obvious. Considering the difficulties in the way of progress in attaining this object, it is unfortunately true that much time and effort will be required in making any appreciable headway in dealing with the numerous and various problems requiring solution.



(Being Part XVI of Some Questions of International Law in the European War. Continued from previous numbers of the JOURNAL.)


English and American Doctrine and Practice. The question of the right of enemy subjects to sue in the courts of an adversary can hardly be said to be regulated by international law, unless the muchcontroverted Article 23 (h) of the Hague Convention of 1907 respecting the laws and customs of war on land, is interpreted to apply to the actions of the judicial authorities. Certainly it is not true, as is sometimes asserted, that it is a principle of international law that they have no right of access to the courts of the adverse power. Like the practice in respect to trading with the enemy the matter is determined by the municipal law of each belligerent and is based upon considerations of public policy. The early English common law rule was that an action could not be brought in an English court by or on behalf of an enemy alien except by virtue of a statute, order in council, proclamation or license from the Crown, or unless he came into the country under a flag of truce, or cartel, or in pursuance of some other act of public authority which put him in the King's peace pro hac vice. As long ago as 1454 Mr. Justice Ashton said that "an alien enemy who came here under the King's license or a safe conduct could maintain an action for trespass." In the leading early case on the subject, Wells v. Williams, decided in 1698, and many times cited by the English courts during the recent war, it was held that, although an enemy alien was in England without a safe conduct, yet if he continued to reside there by the King's leave and protection and without molesting the government and without being molested by

1 Compare Huberich, Trading with the Enemy, p. 191; also the recent Canadian case of Korzwiski v. Harris Construction Co. (1916), 18 Que. P. R. 97. 21 Salk. 45, quoted by the Court of Appeal in Porter v. Freudenberg (1915), 112 L. T. R. 313.

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