"When the depression made itself felt in the Congo, the Minister of the Colonies decided, on June 20th, 1931, with a view to reducing the cost price of colonial products, that, as from July 1st, 1931, the Unatra Company's rate for the carriage of the most important products should be reduced to a purely nominal figure. In consideration of this reduction, the Government was, under certain conditions, to refund losses incurred by the Company.

66

Transporters other than Unatra asked to be given the benefit of the same arrangement, but met with a refusal until October 1932, when the Belgian Government decided to grant them similar treatment.

"The Court holds that the decision taken by the Minister of the Colonies on June 20th, 1931, is a governmental act to be accounted for by the right of supervision retained by the Government over Unatra. As regards its scope, the Court sees in it two distinct elements: the reduction of the transport tariffs and the refund of losses, this being however recoverable.

"Under the Special Agreement, the Court is asked to decide whether the measures taken were in conflict with the international obligations of Belgium 'having regard to all the circumstances of the case'. In the view of the Court, these circumstances comprise the peculiar importance of fluvial transport for the whole economic organisation of the Colony, the character of Unatra as a private company charged with the conduct of an organised public service and, finally, the economic depression. The Court recognises that the Belgian Government was the sole judge of the remedies called for by this depression, subject of course to its duty of respecting its international obligations.

"The Court holds that these obligations are in the first place those incumbent on Belgium under the Convention of Saint-Germain of September 10th, 1919, and in the second place those resulting from general international law.

"In so far as the Parties to the case are concerned, the Convention has taken the place of the Acts of Berlin and Brussels of 1885 and 1890. The signatories of the latter Acts included some States other than those which are parties to the Convention. The Court however observes that the latter has been presented by the Governments of Belgium and the United Kingdom as the instrument which the Court is asked to apply in this case; it also says that, to its knowledge, the validity of this instrument has not been challenged by any Government. As regards general international law, the Court observes that the principle of respect for vested rights is the principle invoked.

"The Government of the United Kingdom contended that the Belgian decision of 1931 was in conflict with the international obligations defined above in the following respects:

They made it-intentionally-impossible for fluvial transporters-including Mr. Chinn-other than Unatra to carry on their business and thus established in favour of Unatra a de facto monopoly incompatible with the principles of freedom of trade and navigation; and by creating for the advantage of a Belgian company a régime in the benefits of which the British subject Mr. Chinn could

not share, they introduced discrimination inconsistent with the principle of equality of treatment.

66

As regards the first of these arguments, the Court observes that freedom of navigation comprises two separate factors: freedom of movement for vessels and freedom of transport. In the present case the British Government has given weight exclusively to the latter aspect, which may be called the commercial aspect; for that reason the Court, though not failing to recognise that freedom of navigation and freedom of trade are, in principle, separate conceptions, does not think it necessary to examine them separately. The Court observes that, while the Convention of SaintGermain abolished the régime of the open door, stipulated in the Berlin Act, it maintained the principle of freedom of trade in the sense of the right, in principle unrestricted, to engage in any commercial activity; but it points out that this does not mean the abolition of competition. Mr. Chinn could not, when he settled in the Congo, have been ignorant of the serious competition which he would encounter on the part of Unatra, having regard to the latter company's connection with the Belgian Government. Furthermore, as regards the de facto monopoly alleged to have been created in favour of Unatra, the Court finds that it would only have been incompatible with freedom of trade if it had possessed the character of an exclusive concession, precluding the right of others to engage in the same business. The Court, however, finds nothing indicative of such a prohibition. What the Government of the United Kingdom describes as a de facto monopoly, the Court only regards, either as a natural consequence of the situation of a service under State supervision, as compared with private concerns, or as a possible effect of commercial competition.

"The Court does not exclude the possibility that Unatra may have taken advantage of the lowering of its rates to obtain the business of its competitors; but it considers that there is nothing to show that this was the motive and aim of the Belgian Government's action. "In regard to the second argument of the Government of the United Kingdom, the Court observes that the Convention of SaintGermain recognises the principle of equality of treatment. In the Court's opinion, the form of discrimination which is forbidden is that which is based upon nationality, involving differential treatment as between persons belonging to different national groups, by reason of their nationality. But in the Court's opinion, the special treatment accorded to Unatra was bound up with the latter's position as a company under State supervision, and not with its character as a Belgian company.

"Lastly, as regards the argument which the Government of the United Kingdom had founded on the general principles of international law, the Court is unable to see in Mr. Chinn's position before the Belgian Government's decision, anything in the nature of a genuine vested right; he merely possessed an interest, which was exposed to all the hazards resulting from the Government's commercial policy. It is true that in 1932, the Belgian Government decided to grant advances also to transporters, other than Unatra, but the Court considers this step was in the nature of an act of grace.

"It is for the foregoing reasons, in particular, that the Court is led to the conclusion that the measures taken by the Belgian Government in 1931 in connection with fluvial transport on the waterways of the Congo, were not in conflict with the international obligations of that Government towards the Government of the United Kingdom."

CONSULAR CONVENTION BETWEEN THE UNITED STATES AND GREECE, NOVEMBER 19/DECEMBER 2, 1902 2

DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA 3

Nicholas G. Lely, appellant, v. Abraham Kalinoglu, appellee

George Kalinoglu, a Greek national residing in the city of Washington, died in that city and left surviving him a father, a mother, two brothers, and two sisters, all subjects of Greece residing in Greece except one brother-appellee-who is a naturalized citizen of the United States residing in Washington. Kalinoglu died intestate leaving personal estate. At the time of his death his brother was temporarily in Greece. In the meantime, appellant, as the acting consul of Greece in the District of Columbia, was appointed administrator. Subsequently appellee filed his petition in the proceedings asserting his right under the probate laws of the District of Columbia to be appointed administrator of his brother's estate. Appellant answered setting up the consular convention between the United States and Greece in support of his right to be appointed his administrator. The lower court held that the treaty between the United States and Greece did not have the effect of displacing the prior rights of administration conferred upon appellee by the laws of the District.

The opinion of the Court of Appeals (no. 6306), March 4, 1935, is in part as follows:

"The question depends upon the extent of the right of consuls of the most favored nation to administer the estate of their deceased nationals. We have held that the effect of the 'most-favorednation' clause in the Greek Consular Convention included the pertinent provisions of the treaty with Sweden. Diamantopoulos v. Glekas, 11 F. (2d) 200, 54 Wash. Law Rep. 133. The provisions of that treaty relied upon are as follows:

In the event of any citizen of either of the two contracting parties dying without will or testament, in the territory of the other contracting party, the consul-general, consul, vice-consul-general, or vice consul of the nation to which the deceased may belong, or, in his absence, the representative of such consulgeneral, consul, vice-consul general or vice consul, shall, so far as the laws

2 Treaty Series, No. 424; 32 Stat. L. (pt. 2), p. 2122.

Appeal from the Supreme Court of the District of Columbia.

of each country will permit and pending the appointment of an administrator and until letters of administration have been granted take charge of the property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate.'

*

"The question is not new. It was carefully considered by the highest courts of the States of Minnesota, Washington, Ohio, California, Maryland, and New York and answered unqualifiedly in the negative. In the New York case the opinion of the court was prepared by Judge Cardozo. It is full and interesting and, in the view we take, as convincing as it is exhaustive. Since, as we think, it is impossible to add anything to it, we adopt its reasoning and conclusion as our own. In his discussion of the treaty provisions, Judge Cardozo considered the matter not only from the viewpoint of the language used, but in the light of international usage in relation to the functions of consuls, and also in the light of our diplomatic history as the result of our dual form of government, and by suitable illustrations indicates the consequences which would follow the supplanting of our local laws if the rights asserted be granted. He construes the words of the treaty-so far as the laws of each country will permit to indicate the intention to make the treaty provisions subordinate to local laws in relation to administration. And the other words, and, moreover, have the right to be appointed as administrator of such estate', to be qualified by those just previously quoted. The two provisions, taken together, he concludes, mean that the consul is not merely to have the right of temporary intervention but is, moreover, to have the right, in case of the failure or disqualification of those preferred by statute, to be appointed administrator. This seems to us the correct understanding of the treaty, and is the view taken by the Court of Appeals of Maryland in the Chryssikos case cited in the footnote; and indeed by all the courts in the cases which we have examined, for all reach the conclusion that the words 'so far as the laws of each country will permit' refer not only to special administration, but as well to the last clause in the treaty article providing for general administration."

6

TREATY OF COMMERCE AND NAVIGATION BETWEEN THE UNITED STATES AND SWEDEN AND NORWAY, JULY 4. 1827 +

4

DECISION OF THE CIRCUIT COURT OF APPEALS, 9TH CIRCUIT

The Taigen Maru, no. 7192 (73 F. (3d) 922)

5

On April 18, 1931, the appellant, van der Weyde, filed a libel in rem against the steamship Taigen Maru based upon claim for personal injuries suffered by him on May 16, 1922, while aboard the respondent vessel on the high seas. The appellant at the time of his alleged injuries was a Netherland subject and a member of the

Treaty Series, No. 348; 8 Stat. L., 352.

5 Appeal from the District Court of the United States for the Western District of Washington, Southern Division.

crew upon the respondent vessel-then the steamship Luise Nielsenof Norwegian nationality. The acting Norwegian consul was allowed to intervene and filed a protest against the court taking jurisdiction on the ground that it was a dispute between a member of the crew of a Norwegian vessel and the master and owners of said vessel, and according to the ship's articles and the applicable law of Norway was a dispute to be decided by the Norwegian consul subject to appeal to the courts of Norway.

The District Court entered an order dismissing the libel which reads in part as follows:

"The court having given consideration to the protest against jurisdiction being entertained in the above entitled cause, and libelant's response thereto, and having concluded that, in the exercise of its discretion, the court should not hear said cause upon the merits:

"Now Therefore, it is hereby ordered:

"(1) That said cause be, and the same hereby is dismissed. . . .” On the appeal the appellee argued apparently for the first time that the decree of the lower court dismissing the libel should be confirmed because the court was without jurisdiction to entertain the suit. At the time the alleged injuries were sustained by libelant the treaty of commerce and navigation of 1827 between the United States and Sweden and Norway was in force. Article 13 of the said treaty provides in part as follows:

"The consuls, vice consuls, or commercial agents, or the persons duly authorized to supply their places, shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country; or the said consuls, vice consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. . . .”

The decision of the Circuit Court of Appeals, November 19, 1934, reads in part as follows:

"Where treaty stipulations exist, however, with regard to the right of the consul of a foreign country to adjudge controversies arising between the master and the crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations are the law of the land and must be fairly and faithfully observed. The Belgenland, 114 U. S. 355, 364, 5 S. Ct. 860, 29 L. Ed. 152; Wildenhus' Case, 120 U. S. 1, 17, 7 S. Ct. 385, 30 L. Ed. 565.

"The authorities we have cited lead us to the conclusion that the District Court was without jurisdiction to entertain the suit and the libel should have been dismissed for that reason rather than as an exercise of discretion."