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In the case of The Attualita,12 an Italian merchant vessel requisitioned by the Italian Government, the Circuit Court of Appeals for the Fourth Circuit held that the vessel was not exempt from suit in a court of this country. This ship, which it appears was employed in the Italian Government service at a fixed rate and remained under the control and management of the owner who paid the officers and crew, had been libeled by a Greek steamer to recover damages for loss resulting from a collision between the two vessels which occurred in the Mediterranean Sea. The contention was pressed in this case that The -Attualita being under requisition of the Italian Government was immune from the jurisdiction of the courts of this country under principles of international law.
The decision of the court appears clearly to be grounded on sound principles.
It is of course well settled that aliens have free access to the courts of this country to maintain and defend their rights in cases of this character. 18
In the opinion of the court reference was made to the well known case of The Exchange,14 in which the Supreme Court of the United States held that the public armed vessels of a foreign nation may, upon principles of comity, enter the harbors of this country with the presumed license of the government, and while there are exempt from the jurisdiction of local courts.
Chief Justice Marshall in rendering the opinion of the court said that the “perfect equality and absolute independence of sovereigns, and common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.” It appears that he divided these cases into the following classes : (1) the immunities accorded the person of the sovereign in a foreign country; (2)
12 238 Fed. Rep. 909.
18 The Maggie Hammond, 9 Wall. 435; The Belgenland, 114 U. S. 368; The Kaiser Wilhelm der Grosse, 175 Fed. Rep. 215.
147 Cranch, 116.
the immunities granted by civilized nations to foreign diplomatic representatives; (3) the immunities allowed the troops of a foreign prince which are permitted to pass through his dominions; and (4) the immunities granted to public armed vessels.
In the light of this often quoted rule there appears to be no violation of international law or comity in the action of an admiralty court in taking jurisdiction in proceedings in rem or in personam instituted with a view to recovering indemnity for loss resulting from the alleged improper navigation of a merchant vessel the services of which the owner thereof has been temporarily required by his government to place at its disposal in consideration of a stipulated compensation for such services.
Any contention that a court in the United States should not adjudicate a controversy of this kind because a sovereign should not be impleaded as a private litigant to defend his rights before judicial tribunals of a foreign government, appears clearly not to be well grounded. The action of a court in taking jurisdiction in the case must not necessarily result in impleading the government to which the vessel belongs, since the courts are open to the owner of the vessel to defend his rights in proceedings instituted against it.
The following excerpt from the opinion of the court in Workman v. The Mayor,” in which Mr. Justice White discussed at some length the question of the right to recover for maritime torts committed by government owned vessels, seems pertinent to this point:
We, of course, conceive that where maritime torts have been committed by the vessels of a sovereign, and complaint has been made in a court of admiralty, that court has declined to exercise jurisdiction, but this was solely the cause of the immunity of sovereignty from suit in its own courts. So, also, where, in a court of admiralty of one sovereign, redress is sought for a tort committed by a vessel of war of another nation, it has been held that as by the rule of international comity the sovereign of another country was not subject to be impleaded, no redress could be given. Both of these rules, however, proceed upon the hypothesis of the want of a person or property before the court over whom jurisdiction can be exerted. As a consequence, the doctrine above stated rests not upon the supposed want of power in courts of admiralty to redress a wrong committed by one 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.
15 179 U. S. 552.
The principle enunciated by Mr. Justice White apparently underlies the decision of the court in the case of Johnson Lighterage Co. No. 24,” 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 of the court could be enforced without disturbing the possession of the government.
16 (1916) 231 Fed. Rep. 365.
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 governments.
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 connected 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,17 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.