over whom such courts have adequate jurisdiction, but alone on their inability to give redress in a case where jurisdiction over the person or property cannot be exerted. In other words, the distinction between the two classes of cases is that which exists between the refusal of a court to grant relief because it has no jurisdiction to do so, and the failure of a court to afford redress in a case where the wrong is admitted and jurisdictional authority over the wrongdoer is undoubted.

The principle enunciated by Mr. Justice White apparently underlies the decision of the court in the case of Johnson Lighterage Co. No. 24,16 in which it was held that a suit in rem could be maintained against the property of a foreign government to recover for salvage services rendered in saving the property while in the possession of a Lighterage Company which had contracted to transport it from a railroad terminal to a vessel. Judge Haight, in the opinion rendered by him in this case, said:

It is undoubtedly the general rule that the courts of this country are without jurisdiction to entertain, except by consent, either an action in personam against our own government or that of a friendly foreign nation or sovereign, or an action against its property in its possession and devoted or destined to be devoted to the public use. The Siren, 7 Wall. 152, 154, 19 L. Ed. 189; Stanley v. Schwalby, 147 U. S. 508, 512, 13 Sup. Ct. 418, 37 L. Ed. 258; The Exchange, 7 Cranch, 116, 3 L. Ed. 287; Tucker v. Alexandroff, 183 U. S. 424, 440, 463, 22 Sup. Ct. 195, 46 L. Ed. 264; Hassard v. United States of Mexico, 46 App. Div. 623, 61 N. Y. Supp. 939; Briggs v. Light Boats, 11 Allen (Mass.) 157. But there is what may be termed an exception to this rule, although it is probably not strictly such, which was enunciated and applied by the Supreme Court, so far as our own government is concerned, in The Davis, 10 Wall. 15, 19 L. Ed. 875, and followed and applied as to a foreign government by Judge Brown, in the Southern District of New York, in Long v. The Tampico (D.C.) 16 Fed. 491. This so-called exception, I think, must control the questions to be decided in the case at bar. In the former of these cases it was held that personal property of the United States on board a private vessel for transportation from one point to another was liable to a lien for services rendered in saving it, and although such lien could not be enforced by a suit against the United States, or by a proceeding in rem, when the possession of the property could only be had by taking it out of the actual possession of an officer of the government, yet it could be enforced by a proceeding in rem where the process

16 (1916) 231 Fed. Rep. 365.

of the court could be enforced without disturbing the possession of the government.

In The Attualita case the court very pertinently commented as follows on the serious consequence of a decision which would grant to a privately owned merchant vessel in the service of the government whose flag it flies the immunities accorded to foreign war vessels:

There are many reasons which suggest the inexpediency and the impolicy of creating a class of vessels for which no one is responsible in any way. For actions of the public armed ships of a sovereign, and for those whether armed or not, which are in the actual possession, custody and control of the nation itself, and are operated by it, the nation would be morally responsible although without her consent not answerable legally in her own or other courts. For the torts and contracts of an ordinary vessel it and its owners are liable. But the ship in this case, and there are now apparently thousands like it, is operated by its owners, and for its action no government is responsible at law or in morals.

The persons in charge of the navigation of the ship remain the servants of the owners and are paid by the owners. The immunity granted to diplomatic representatives of a sovereignty, to its vessels of war, and under some circumstances to its other property in its possession and control, can be safely afforded because the limited numbers and the ordinarily responsible character of the diplomats or agents. in charge of the property in question and the dignity and honor of the sovereignty in whose services they are, make abuse of such immunity rare. There will be no such guaranty for the conduct of the thousands of persons privately employed upon ships which at the time happen by contract or requisition to be under charter to sovereign govern

ments.

In line with the thought expressed in the above quoted excerpt it may be observed that, if merchant vessels under requisition of the government of the country to which they belong should be regarded as entitled in the ports of another country to the immunities accorded to public armed vessels the local tribunals of such other country would seemingly be impotent to determine even the rights of its own nationals in cases involving torts, salvage and contracts of various kinds, and controversies between seamen and masters of vessels. And the local courts might be precluded from the administration of criminal jurisprudence in cases wherein the arrest of any persons con

nected with the vessel for an offense committed within the territorial jurisdiction of the country wherein the courts are located might occasion delay in the departure of the vessel from the port.

With regard to the question of the lack of remedies open to persons who may be precluded from asserting rights against a vessel under requisition in the courts, it seems clear that it is not a sufficient answer that redress may be sought directly from the government to which the vessel belongs. If, as seems possible might be the case, no such redress is available and at best it would be inconvenient and uncertain-such persons evidently have no remedy except by application to their government for assistance through diplomatic channels, a remedy likewise uncertain as well as long drawn out.

There are other serious questions pertinent to be considered in relation to the status of requisitioned vessels. If the view should be taken that such vessels should be given a treatment assimilated to that accorded to vessels of war and should not be subjected to laws and regulations governing merchant vessels in foreign ports, a grave question might be raised as to the propriety of neutral governments permitting such vessels freely to enter and leave their ports and to transport therefrom merchandise of all kinds, including articles of contraband in times of war.

In the case of The Belgenland," the Supreme Court of the United States pointed out that there are certain circumstances in which courts in this country will exercise their discretion to take or to refuse jurisdiction over foreign vessels, their officers, and crews in ports of the United States.

In the case of The Attualita it was argued that in the exercise of a sound discretion jurisdiction should be declined. Such a contention, the court held, was foreclosed by what the court said in the case of The Belgenland. It may be observed with regard to this point that, apart from what the court said in this last mentioned case, the grounds upon which it appears proper to sustain the jurisdiction of courts in cases involving requisitioned vessels seem pertinent to the question as to whether the courts should in the exercise of their discretion decline to take jurisdiction.

17 114 U. S. 365.

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.21 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.