FOURTH SESSION

Saturday Morning, April 29, 1922, at 10.30 o'clock a.m.

The Society met at 10.30 o'clock A.M., with Hon. George Gray, a VicePresident and a member of the Executive Committee, presiding.

The CHAIRMAN. Gentlemen of the Society: I understand that the reports made by the subcommittees on the advancement of international law at the session last evening will be the subject of discussion this morning, and that subject is now before the Society. Action upon the report of Subcommittee No. 1 is now in order.

The CHAIRMAN. Is Dr. Hill present? (After a pause) Is any other member of the subcommittee present who would like to introduce the subject of that report?

Professor GEORGE GRAFTON WILSON. Mr. Chairman, I move that Dr. Judson speak for Subcommittee No. 2.

Dr. HARRY PRATT JUDSON. I do not know, Mr. President, what course the Society desires to take, but to bring it before the Society, I move the adoption of the report.

Baron S. A. KORFF. I second the motion.

Professor WILSON. May we have a summary of their conclusions before we vote upon them? I think we may not all be familiar with them.

Dr. JUDSON. The subject is the "Status of Government Vessels," and the recommendations are:

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.

Those are the recommendations, Mr. Chairman.

Admiral RODGERS. I would like to ask, under what system a government vessel is presumed to run? There are two systems well known to the law of nations. One is the law of the respective countries applying to naval ships, and the other is the law applying to privately owned ships, municipal law. We have now under the army transport system, and we had until a very short time ago under the naval transport and hospital system, vessels running under the orders and administrative rules of the Navy Department, which did not comply either with naval law or with municipal law. If the master exercised his full powers under the civil law and not in accord with the administrative orders of the War Department or of the Navy Department, he would meet with discharge, and that was sufficient to make good the government's orders, but it did not give the ships any standing in foreign ports. Then the question arises, what would happen if a liner owned by the government, run as a merchantman, enters a foreign neutral port during war. Where would she stand?

The CHAIRMAN. Owned and operated by the government?
Admiral RODGERS: As a liner, like the Shipping Board vessels.

Dr. JUDSON. With your permission, I will ask Mr. Kingsbury, Secretary of our Subcommittee, to answer.

Mr. HOWARD THAYER KINGSBURY. Mr. Chairman, the questions which Admiral Rodgers has just put, were really the basis of the study which this subcommittee undertook to make, and on which it undertook to frame these recommendations. There have grown up in the last few years, particularly since the beginning of the war, this new and somewhat indeterminate class of vessels which are partly government and partly private, and there has been much conflict in the decisions in this country and in England and on the Continent as to what their status would be and how far they were subject to the duties and liabilities of government ships, and how far they were regulated as private ships by municipal law; and it was the task of this subcommittee to try to formulate a body of very simple rules which might assist in reaching some decision on those points.

The lower courts of the United States have held, as was pointed out in the body of the report, that a vessel which was either owned or controlled by a government and which was operating in public service, whether or not a naval vessel, was entitled to the immunities of a government vessel, and could not be made subject to the process of a municipal court. That question has not yet been decided by the Supreme Court of the United States. I do not think it has been decided by the highest courts in England, and I understand that the decisions in the Continental countries are somewhat conflicting on the subject. So that the field is open for an attempt at formation of rules of international law on the subject. As I say, that was what this sub

committee was striving to do. So I fear it is impossible to answer categorically Admiral Rodgers' questions, except to say that the present state of the law is uncertain. and therefore it is desirable to try to clarify it.

Admiral RODGERS. The hospital ships of the Navy gave great trouble at the outbreak of the war,-three of them were under my command. There was chaos on board, and they were not amenable to any law whatever on the high seas. It resulted in the Department at the beginning of the war removing from the hospital ships the merchant crews who declined to go to sea on them, and in substituting an entire naval crew, in order to have a recognized system of law instead of the administrative set of rules which is operative now under the War Department, and is neither military, naval nor municipal law.

Mr. EDWARD A. HARRIMAN. Mr. Chairman, I was not quite clear as to the last recommendation of the subcommittee in regard to the equal treatment of ships owned by foreign governments. I should like to know whether that is intended to prevent any discrimination by the United States in favor of its own vessels in its own ports and in the Panama Canal, for example. It is not clear to me.

Mr. KINGSBURY. The report did not undertake to deal with preferential treatment of domestic vessels in matters of that kind. The recommendation of the subcommittee was that in any immunities from judicial process which a nation undertook to afford to its own quasi-public ships, it should give at least as favorable treatment to the quasi-public ships of a foreign national. But that was simply in regard to immunity from judicial process, and not such discriminations as might apply to Panama Canal tolls or municipal regulations.

Professor PHILIP MARSHALL BROWN. I understood that the suit is to be brought in the courts of the home country of the flag of the ship. If that is so, I ask what would happen in the case of a collision in a foreign port between such a ship used for commercial purposes with another vessel. Do I understand that according to this recommendation suit could be brought in rem?

Dr. JUDSON. I will ask Mr. Kuhn of the subcommittee to answer. Mr. ARTHUR K. KUHN. Mr. Chairman, in answer to the question it was not intended that the claimant should be relegated exclusively to the jurisdiction of the flag of the ship at all. It was only intended that governments that do not allow action for damages caused by some action of the vessel to be brought against the vessel by reason of government immunity should provide at least in their own jurisdiction some procedural remedy by which a claim could be presented and approved and compensation allowed. However, if the courts of the foreign country grant that remedy, then of course it is not necessary for the claimant to be relegated to the jurisdiction of the home country of the vessel. As a matter of fact, however, the body of the report shows by a review of the state of the law in this and other countries that there is no such remedy in a vast number of cases; and therefore we have

suggested that governments should allow a remedy at least in their own jurisdiction where no remedy is allowed in the foreign country.

Professor WILSON. Mr. Chairman, I would like, if I may, to have the report read again in regard to the status of public owned ships engaged in private business.

Dr. JUDSON. The thought of the subcommittee was that it would be very difficult to bring such a vessel under the judicial system or operation of a foreign country in which it might be; but, nevertheless, if there is a court of any kind, there ought to be a remedy, and we could not think of any other remedy but that in the courts of the country to which it belonged.

The CHAIRMAN. That would require Congressional legislation.

Dr. JUDSON. Probably; doubtless.

Professor WILSON. Then as I understand it, a government-owned vessel is exempted from judicial process if not engaged in commercial undertaking?

Dr. JUDSON. If operated by the government; that is to say, if government officers are in control of the ship.

Professor WILSON. Then in case of governments which are taking over practically all private property, they would be at an advantage in carrying on their business against a government where property is privately owned. Dr. JUDSON. I suppose they would, if the government takes over these vessels and operates them.

Professor WILSON. I merely wish to inquire whether this Society would wish to give a preference to governments of that type over governments that are protecting the rights of property of their own private citizens.

Dr. JUDSON. The subcommittee believed in that case that there should not be such preference. It was unable to see how advantageously judicial processes would lie against naval officers, for instance, in command of such a ship, or any officer of the government. The situation is such as to render that difficult. There ought to be, however, by Congressional action in this country and similar action in other countries, a mode of providing for such matters, but we did not see how it could be done in the courts of foreign countries.

Mr. HARRIMAN. Mr. Chairman, it is difficult for me to see why, if the government goes into a private undertaking, the government and those concerned in carrying out that private undertaking should not be subject to the same laws as a private citizen would be under the same circumstances.

Professor ELLERY COREY STOWELL. I feel the same way that Professor Wilson does.

Mr. ARTHUR K. KUHN. Might I say in reply to that objection that the subcommittee considered that and thought it might be a desirable conclusion. At any rate, we are compelled to recognize the facts under which the government is operated in all countries, and it would be most objectionable to have government officers, officers of the Navy, or other employees,

arrested in foreign ports, for example, where they have not the facilities of private companies for defending themselves and taking other steps for the protection of the vessel, the crew, and the cargo; and it would be an interference with government function which I do not think the world is at the present time willing to undertake.

Professor MANLEY O. HUDSON. May I ask the gentleman a question? What is the difference in the facilities that the private firm has and those that the government has in a foreign port?

Mr. KUHN. As I understand it, in practical matters, private firms have permanent agents located in the ports with which they do business, and the government does not necessarily always operate lines permanently. They may operate a vessel for the purpose of carrying a cargo for an isolated voyage, as I understand it. I do not claim to be entirely informed on the subject. That is the fact with the United States Government. They have used their vessels for isolated voyages, for isolated purposes, without operating regular lines of traffic; and probably other governments do the same. And our government will continue to do her transportation of coal and other cargoes not in a regular line, and in that way I think there is an essential difference between the government and the private owner. At any event, quite apart from that, I do not think that the government should be interfered with by municipal courts in the operation of vessels upon which they have their own officials in command. That is the main principle, which, it seems to me, is the practical one.

Mr. CHARLES HENRY BUTLER. Mr. Chairman, the question which is now before the Society is, to my mind, a very important one. The question is, whether under this tendency of governmental requisition, if this immunity is granted from process to all vessels which in any way come under the control of the government, there will not be a great fleet of practically irresponsible engines of destruction going around on the ocean. The safety which I have to my maritime venture is that if a ship owned by anyone else, responsible or otherwise, rams into it and sinks it, I can at once get my remedy by taking process in rem. If simply because a government may be using that vessel, that vessel is immune from process when it goes into a foreign port, but not the home port of the vessel that has suffered damages, there is no redress absolutely unless it is taken up diplomatically. A little while ago a number of cases were pending in the courts of this country, and many are still pending, and it is of vast importance to maritime owners as to how this question will be decided. There was a batch of these cases in the Supreme Court of the United States, and after they had been held by that tribunal for various periods from three to eight months, they went off on some technical question, and the court ordered the rest of the cases back for reargument, so that the question was hung up there for something like two years. I think there were several cases there decided as to what extent this operation for purely commercial purposes should carry with it immunity,