or ruled a line of earlier American decisions. A very recent English decision adheres to the earlier American doctrine. (See The Tervaete, 38 Times Law Rep. 460.) In The Western Maid cases the vessel was either owned, operated on a bare boat charter, by the government when the alleged cause of action arose. The case of a requisitioned vessel, operated under government direction by a master and crew employed by the private owner, has not yet been decided by the United States Supreme Court. In the case of foreign vessels, it is desirable that there should be some recognized and convenient method of establishing the fact of government ownership or control. In the case of The Roseric, 254 Fed. 154, this was done by a suggestion presented by the foreign diplomatic representative, but this practice was disapproved in Ex parte Muir, 254 U. S. 522, although it had been accepted more than a century ago in United States v. Peters, 3 Dall. 121, and had also been allowed by the Circuit Court of Appeals (The Adriatic, 258 Fed. 902) and by the English courts (The Constitution, L. R. 4 Prob. Div. 39). In Ex parte Muir, supra, the Supreme Court indicated that such representations should be made through the State Department, but the practice of that Department in accepting and presenting such suggestions at the request of a foreign Power is by no means uniform. The recent practice has been to decline to do so. This Subcommittee recommends that the subject under discussion be clarified by an agreement upon a body of rules or principles. Each government necessarily has power to determine what immunities it will grant to vessels owned or controlled by it, and how far it will recognize principles of international law according similar immunities to foreign vessels, but this limitation is not peculiar to this special field of international law. It is therefore properly within the functions of the American Society of International Law to assist in the formulation of such a body of rules, in the hope that their justice, logic and convenience, may conduce to their general acceptance. This Subcommittee has formulated and recommends the following rules: 1. Government vessels are those which are owned or requisitioned by or chartered to a government. If a vessel is controlled and directed by a government and employed for public purposes, it is immaterial whether the interest of the government is that of ownership, or is based upon charter or requisition. 2. A government vessel operated by the government for public purposes is immune from foreign judicial process. 3. A government vessel operated by private persons for commercial purposes is not immune from foreign judicial process. 4. A government vessel operated by the government for commercial purposes is immune from foreign judicial process, but injuries committed. by such vessel should render the government liable in its own courts. 5. Municipal law determines the liabilities of government vessels in domestic courts. 6. Every government should accord, both by executive action and judicial decision, at least as favorable treatment to the vessels owned or controlled by a friendly foreign government as it accords to those owned or controlled by it. 7. Some convenient method of proof of the governmental character of foreign vessels should be adopted by international agreement. The Subcommittee recognizes that some of the foregoing proposed rules present certain controversial features. It may well be that if various governments undertake the operation of commercial shipping on an extensive scale, some of the immunities above suggested will prove too liberal, unless some method is adopted by international agreement for the convenient adjudication and collection of maritime claims arising out of the operations of foreign vessels, similar to that provided by the Act of Congress of March 9, 1920, in regard to claims against Shipping Board vessels. The immunities which a government affords or denies to its own vessels in its own courts may also limit or affect the immunities which it may justly claim for them in a foreign jurisdiction. (See The Pesaro, 277 Fed. 473.) This Subcommittee has refrained from reporting any recommendations upon the question of the continuance of immunity, in respect to claims arising during the governmental ownership or control of a vessel, after such vessel has passed into private ownership, as it considers this a question of municipal rather than international law. It has also refrained from reporting any recommendations in regard to the status of foreign government vessels in the ports of a neutral or of a co-belligerent nation, in time of war. The general obligations of neutrality are beyond the scope of this report. Special regulations on the part of neutrals, or of allies, or of co-belligerents operating jointly against a common enemy, depend so largely upon the special circumstances of varying situations that this Subcommittee has thought it inexpedient to attempt to formulate any general rules upon the subject. The questions discussed in this report involve various elements of policy as distinguished from law, upon which the varying interests of different nations may easily lead to different conclusions. The questions present themselves in different aspects in peace and in war. During the war the movements of almost all vessels were matters of great importance to the belligerent governments, and it was essential that they should not be delayed by judicial proceedings. In normal times of peace, it is appropriate that where vessels are performing commercial functions, there should be some effective and convenient method of enforcing pecuniary claims arising out of their operation. Just where the line is to be drawn between the immunity which properly attaches to the operations and instrumen talities of government and the responsibility which normally arises out of commercial activities is a question to be solved by the course of practical evolutionary development rather than by the a priori reasoning of theoretical jurisprudence. Respectfully submitted by Subcommittee No. 2, this 28th day of April, 1922. HARRY PRATT JUDSON, Chairman. The CHAIRMAN. The report of Subcommittee No. 3 is now in order. REPORT OF SUBCOMMITTEE NO. 3 PROBLEMS OF MARITIME WARFARE PRESENTED BY PROFESSOR GEORGE GRAFTON WILSON, CHAIRMAN Mr. President, ladies and gentlemen: Subcommittee No. 3 of the Committee for the Advancement of International Law was designated, "To endeavor to reconcile divergent views and secure general agreement upon the rules which have been in dispute heretofore." In the report of Subcommittee No. 3 at the meeting of April 29, 1921, there was mentioned as among typical divergent views: Problems of maritime warfare, e. g., the abolition of the distinction between absolute and conditional contraband, and the extension of the doctrine of continuous voyage. The following suggestions have been made: (a) That outside of neutral jurisdiction, the ultimate destination of a neutral vessel or cargo determines the liability of either to condemnation. (b) That there should be considered the abandonment of the doctrine of conditional contraband, specifically with reference to the treatment of foodstuffs. (c) That there should be considered the feasibility of a general agreement concerning the operation and effect of neutral governmental certification of the non-hostile uses of neutral foodstuffs destined to hostile territory, as a safeguard against capture and condemnation. I. A review of the practice during the World War shows an abandonment of the distinction between absolute contraband and conditional contraband, not merely as regards foodstuffs but in general as regards all classes of goods. The reasons were such as: (1) The impossibility of devising acceptable lists of absolute and conditional contraband. (2) The difficulty in distinguishing between material for food and for war purposes, e.g., fats. (3) The difficulty in determining the actual use to which foodstuffs would be put when bound for a belligerent country, e.g., when national resources are mobilized. A review of pertinent diplomatic papers and court decisions shows that the theoretical distinction between absolute contraband and conditional contraband has not a sound rational basis. The reasons were such as: (1) The impairment, if not disappearance, of the distinction between civil and military population. (2) The right of a state to make its own list of contraband. (3) The impossibility of making clear and continuing distinctions between absolute and conditional contraband even if utmost good faith prevail. The proposal that a neutral government certify the non-hostile use of foodstuffs exported from its jurisdiction has been put forward at various times, but it has not as yet been adopted. (The shipments of foods for humanitarian relief is not here considered, e.g., Belgian relief shipments.) The proposal involves such difficulties as: (1) The problems in determination of what is non-hostile use, e.g., food for workers in a woolen mill versus workers in an ammunition factory. (2) Possibility of mobilization of all the population, e.g., as in the World War. (3) The placing of additional and heavy burdens on neutral states, e.g., in certification of cargoes. (4) The liability to misunderstandings which might involve neutral states in war, e.g., if certification is found to be false, incomplete, misleading. There seem to be difficulties too great to warrant the maintenance of the distinction between absolute and conditional contraband. There seems to be no adequate advantage in placing burdens upon neutral states as proposed in neutral certification of foodstuffs. The adoption of any policy in regard to contraband is closely related to visit and search and blockade and other war measures; for, as the list of contraband is extended, blockade becomes less important; and, as the list is limited, blockade becomes more important. It has been suggested that the penalty for contraband may be graded by the nature of the contraband goods carried; but this proposition seems open to the objections raised in several of the cases above. Any restriction interferes with the neutral's right to continue his trade with the belligerent, and may raise questions as to neutral convoy, or may throw the burdens of war unduly upon the neutrals. The Subcommittee, therefore, recommends the abolition of the distinction between absolute and conditional contraband. II. As to the doctrine of continuous voyage, it was suggested at the annual meeting in 1921, that: "Outside of neutral jurisdiction, the ultimate destination of a neutral vessel or cargo determines the liability of either to condemnation." Practice of recent years has shown a tendency to extend the old doctrine of continuous voyage. The reasons were such as: (1) The desire to prevent goods from reaching the enemy, e.g., even if passing through the jurisdiction of several neutral states. (2) The willingness of neutrals to concede the extension, or not to maintain earlier opposition, e.g., the attitude of certain states during the World War. (3) The so-called right of reprisal against enemies without regard to neutrals, e.g., practice in the World War. (4) The claim of certain belligerents that goods could not be sent to neutrals which might replace or supplement other goods which such neutrals might send to an opposing belligerent. The extension of the doctrine of continuous voyage has been pressed so far that seaborne commerce between neutrals and belligerents has become practically impossible. It was not the idea of continuous voyage as originally advanced to follow the course of any except the goods on board the vessel brought before the court. The extension of the doctrine of continuous voyage to goods which might be released if the captured goods should reach a bona fide neutral destination does not properly come within the terms of the earlier doctrine, but the belligerent should be allowed to protect itself from the extension to the other belligerent of aid indirectly through the use of these goods. Possibly there may be developed a doctrine placing the burden on the receiving state to guarantee that goods received shall not release corresponding amounts of goods for shipment to the belligerent; but this places a new obligation upon the neutral state. The doctrine of continuous voyage should not be extended beyond the principle: "That the ultimate destination of a neutral vessel or cargo determines the liability of either to condemnation, but cargo otherwise innocent may become liable to condemnation if destined to aid the belligerent." Other interference with neutral goods or vessels should rest upon the effective enforcement of blockade and other accepted measures of war. GEORGE GRAFTON WILSON, Chairman. The CHAIRMAN. Subcommittee No. 4, Professor Reeves. Professor JESSE S. REEVES. Mr. Chairman, the hour is late, and I am wondering if any time is available for the presentation of a report which is quite informal. The CHAIRMAN. Well, how long is the report apt to be? The CHAIRMAN. If you prefer, you may present it tomorrow morning. Otherwise, you may present it tonight. I will consult your own wishes about that. |