commander had evacuated Iloilo and the insurgents had taken control before the expedition under General Miller arrived; (2) in delaying the occupation of Iloilo after General Miller's arrival, so that the insurgents were able to make and carry out preparations for burning the town; (3) in the manner of landing and occupation when finally made. As to the first contention, we are of opinion that there was no duty upon the United States under the terms of the protocol, or of the then unratified treaty, or otherwise, to assume control at Iloilo. De jure there was no sovereignty over the islands until the treaty was ratified. Nor was any de facto control over Iloilo assumed until the taking up of hostilities against the United States on the part of the so-called Filipino Republic required it on February 11, 1899. The sending of General Miller's force, at the request of the business men of the place, was an intervention to preserve peace and property. As between the United States and the claimants or their government, it was a matter of discretion whether or not to do this, and no fault can be imputed because of delay in undertaking such an intervention. As to the second contention, it appears that the delay was, at least, largely due to request of the business men who had originally sought intervention (among them six of the present claimants) who feared the town would be burned and their property destroyed if General Miller attempted to land and to take forcible possession. Even if it is assumed that there was any duty toward the claimants to act promptly, under all the circumstances we can not say that the delay was culpable. As to the third contention, it appears that the Filipino insurgents, who burned Iloilo, were acting under orders from and professed allegiance to the so-called Filipino Republic, which, on February 4 preceding, had declared war against the United States and had attacked the American forces at Manila, thus bringing on a conflict which lasted over three years. There was no wanton or intentional destruction of property by the vessels or troops of the United States. Indeed there is evidence that the troops exerted themselves vigorously to put out the fires and to stop looting. The most that is claimed is that, if the operations of landing and taking the town had been carried out in a different way, the burning by the insurgents might have been prevented. But the circumstances were difficult and the general situation was trying. The operations were in charge of experienced officers and we do not feel competent to criticize their judgment as to the conduct of military operations. Considering all the circumstances, we do not think that any culpable disregard of the interests of the claimants has been shown. We decide that these claims must be rejected. Done at Washington, D. C., November 19, 1925. The President of the Tribunal, J. PARSONS (Philippine War Claim) Award rendered at Washington, November 30, 1925 Destruction of stock of liquors by American military authorities at Manila during Philippine insurrection justified as a police measure. This is a claim for a stock of liquors destroyed by order of the Provost Marshal General, under authority of the Military Governor General, at Manila, during the Philippine insurrection. We are satisfied that the destruction was a matter of police entirely within the powers of the military government and quite justified by the circumstances. Hence, we hold that this claim must be rejected, and it is so decided. Done at Washington, D. C., November 30, 1925. The President of the Tribunal, A. NERINCX. "ZAFIRO" CASE (Philippine War Claim) D. Earnshaw, A. Young, G. Gilchrist. [Claim No. 39] Award rendered at Washington, November 30, 1925 The United States held liable for looting by Chinese merchant crew of supply ship to Admiral Dewey's fleet in Manila Bay. The liability of the state for the actions of a public ship must depend upon the nature of the service in which she is engaged and the purpose for which she is employed. The Zafiro was a supply ship, acting in Manila Bay as a part of Admiral Dewey's forces, and under his command through the naval officer on board for that purpose and the merchant officers in charge of the crew. The nature of the crew, the absence of a régime of civil or military control ashore, and the situation of the neutral property, were circumstances calling for diligence on the part of those in charge of the Chinese crew to see to it that they were under control when they went ashore in a body. These are claims for property looted or destroyed by the crew of the Zafiro, on May 4, 1898, while the ship was moored alongside the wharf of the Manila Slipway Company at Cavite, engaged in coaling. The claimants were employees of the company and lived on the premises in houses belonging to the company. During the naval battle of May 1, 1898, in Manila Bay, as the wharf and premises were in the line of fire and shells were exploding about the houses, the claimants and their families went away for safety, leaving the premises in charge of Filipino watchmen and Chinese employees of the company. On May 4 the Zafiro was ordered to go to the Spanish coal pile at Cavite to coal, and in order to do so moored alongside the company's wharf. The evidence as to what followed is in conflict and there is much dispute as to the facts. We do not doubt that the affidavits of the watchmen and of the Chinese employees are at least somewhat exaggerated. But it is clear enough that the Chinese crew of the Zafiro took a substantial part in the looting of the houses of the claimants and destruction of their property, which was undoubtedly complete and thorough. Hence it becomes necessary to consider whether and how far the United States is liable for the actions of the crew. It appears that the Nanshan and Zafiro, two British merchant vessels, were bought by Admiral Dewey at Hong Kong, under authority of the Secretary of the Navy, in April, 1898. They were not commissioned, but were registered as American vessels, and the original crews (British officers and Chinese sailors) were shipped in the American merchant service. The reason for so doing is set forth in Admiral Dewey's Autobiography as follows: "We registered them as American merchant steamers, and by clearing them for Guam, then almost a mythical country, we had a free hand in sending them to English, Japanese, or Chinese ports to get any supplies we might need." In other words, it was not intended that they should trade and they did not trade. They were used as supply ships and colliers; and the purpose of registering them as merchant steamers was to enable them to resort to neutral ports to obtain supplies and coal, not for general purposes of the United States, but for the specific purposes of Admiral Dewey's naval operations. An ensign and four men were placed on each and Admiral Dewey and Admiral Crowninshield each speak of the naval officers as being "in command." Admiral Crowninshield says: "The naval officer exercised control over all the movements of the ship and gave all orders concerning her. The merchant captain was merely his executive officer, being familiar with the crew and with the ship." Ensign Pearson, now Commander Pearson, who was on the Zafiro, says: "My instructions were not to interfere particularly with the details of the ship's routine, but to receive the Admiral's orders for the ship and see them carried out, and to assist as much as possible and consistent with the general duty of the ship." He adds: "At the time of her purchase she was manned by British merchant officers and a crew of Chinese. With the exception of the captain and chief engineer, these officers and crew were retained on the vessel. . . . A. M. Whitton, who had been first mate, was made captain, and W. D. Prideaux, formerly second mate, was made first mate. . . . The handling and management of the Chinese crew was left to the ship's officers, who had been with the crew in the merchant service and better understood their ways and peculiarities.” On behalf of the United States, it is contended that the Zafiro, registered as a merchant ship, must be so regarded and cannot be held to be a public ship for whose conduct the United States may be held liable. In support of that contention reference is made to a long line of cases as to the immunities of public ships, e. g., The Exchange, 7 Cranch, 116; The Charkich, L. R. 4 Adm. & Eccl. 59; The Parlement Belge, 5 P. Div. 197; The Guj Djemal, 264 U. S. 90; The Pesaro, 277 Fed. Rep. 473; The Attualita, 238 Fed. Rep. 909. In addition counsel for the United States rely upon the seventh convention of the Second Hague Conference of 1907, and on the decisions of the United States Court of Claims in Stovell v. United States, 36 Ct. Cl. 392, and The Manila Prize Cases, 188 U. S. 254, in which, it is argued, the status of the Nanshan and the Zafiro was established. us. We have no difficulty in distinguishing those cases from the one before The Exchange case had to do with the immunity of war ships in foreign ports. So also the other cases first cited have to do with claims to immunity from process while in foreign ports. That is quite a different question from the one before us, which is not one of what immunity the Zafiro might have claimed in Hong Kong, but of what responsibility attaches to the United States for her action, in Manila Bay, where and while she was acting as a supply ship for Admiral Dewey's squadron, in the naval operations he was then and there conducting, and was under his orders through a naval officer put on board to carry them out. No such situation is presented in the cases cited. In The Guj Djemal, 264 U. S. 90, and Ex Parte Hussein Lufti Bey, 256 U. S. 616, the Turkish Government owned, possessed, and operated the vessel, but it was engaged in "ordinary commerce under charter to a private trader." It was held that the vessel could be libeled for services and supplies. In The Pesaro, 277 Fed. Rep. 473, the ship was owned by the Kingdom of Italy, was in possession of the Italian Government, and was manned by a master, officers, and crew employed by a department of the government. But it "was engaged in commercial trade, carrying passenger and goods for hire, and in such trade was not functioning in a naval or military capacity, or under the immediate direction of the department of the Italian Government having to do with military or naval affairs." (473-4.) Even if the case before us were necessarily governed by the question whether immunity could have been claimed for the Zafiro in a foreign port, these decisions would not be in point. Even more is this true of The Attualita, 238 Fed. Rep. 909, where the crucial point, as the court decided, was to be found in the circumstance that the Italian Government was not in possession of the ship which it owned. In the admirable opinion of Judge Mack in The Pesaro, 277 Fed. Rep. 473, 481, it is said. "If, as I believe, sound principles of admiralty jurisprudence require that a ship be treated as an entity separate and distinct from her owner, the immunity of a public ship should depend primarily, not upon her ownership, but upon the nature of the service in which she is engaged and the purpose for which she is employed." We agree. But if we carry this out and say that the liability of the state for her actions must depend upon the nature of the service in which she is engaged and the purpose for which she is employed, it is obvious that the case before us differs radically from all those which have been cited and on which the United States relies. It may be conceded that the Zafiro does not meet all the requirements of "a converted merchantman" under Convention VII of the Second Hague Conference of 1907. But the purpose of that convention was to distinguish converted merchantmen from privateers and to give them a proper status as ships of war; not to cover such a case as that presented here. As to the Manila Prize Cases, 188 U. S. 254, and Stovell v. United States, 36 Ct. Cl. 392, we think, when looked at critically, they go to sustain liability of the United States. One of the findings of the Court of Claims, affirmed by the Supreme Court of the United States, was: "The naval officer exercised control over the vessel and gave all orders concerning her. The merchant captain was merely his executive officer, being familiar with the crew." (188 U. S. 280.) Another finding was: "The duty of the naval captain on said ship was to take general charge of the vessel, execute all orders from the flagship, controlling the movements of the Nanshan, . . . but not to interfere with the internal management and discipline of the ship, and such things as loading and unloading cargo." (Id., 281.) The question involved in those cases was whether the merchant officers of the Nanshan and Zafiro were entitled to prize money for ships taken in the battle of Manila. The District Court held that "the Nanshan and Zafiro not participating in any of said captures and not being armed vessels of the United States within signal distance of the vessel or vessels making the capture, under such circumstances and in such conditions as to be able to render effective aid if required, are not entitled to share in any of the prize money." (Id., 282-3.) The Court of Claims "held on the facts that the Nanshan was not at the battle of Manila in such a condition as to enable her to render effective aid if required; that she was performing the functions of a collier, to be protected instead of to act aggressively." (Id., 282.) These findings were approved and adopted. They are far from showing that the Zafiro at the time in question was a mere merchant ship for whose actions the United States would not be responsible. From all the evidence we are of opinion that the Zafiro was a supply ship, acting in Manila Bay as a part of Admiral Dewey's force, and under his command through the naval officer on board for that purpose and the merchant officers in charge of the crew. We have next to inquire whether at the time of the looting in question the Chinese crew were under discipline and officered, so as to make the United States responsible, and to consider how far the United States would be chargeable for want of supervision by those who had or should have had the crew in charge under the circumstances. It is well settled that we must distinguish between soldiers or sailors under the command of officers, on the one hand, and on the other hand bodies of straggling and marauding soldiers not under the command of an officer, or marauding sailors not under command or control of officers. Hayden's Case, 3 Moore, International Arbitrations, 2985; Case of Terry and Angus, Id., 2993; Mexican Claims, Id., 2996-7. These cases draw a very clear line between what is done by order or in the presence of an officer and what is |