(b) Other Public Ships.

THE "PARLEMENT BELGE."

COURT OF APPEALS, 1878.

(L. R.,5 Probate Div., 197.)

A public vessel of a foreign state-not a ship of war-carrying the mails, and also carrying merchandise, is nevertheless exempt from the jurisdiction of the admiralty courts, in England.

This was an appeal on behalf of the Crown from a decision of Sir R. J. Phillimore.

The judgment of the court (James, Baggallay, and Brett, L. JJ.) was delivered by Brett, L. J. "In this case proceedings in rem on behalf of the owners of the Daring were instituted in the Admiralty Division, in accordance with the forms prescribed by the Judicature Act, against the Purlement Belge, to recover redress in respect of a collision. A writ was served in the usual and prescribed manner on board the Parlement Belge. No appearance was entered, but the Attorney-General, in answer to a motion to direct that judgment with costs should be entered for the plaintiffs, and that a warrant should be issued for the Parlement Belge, filed an information and protest, asserting that the court had no jurisdiction to entertain the suit. Upon the hearing of the motion and protest the learned judge of the Admiralty Division overruled the protest and allowed the warrant of arrest to issue. The Attorney-General appealed. The protest alleged that the Parlement Belge was a mail packet running between Ostend and Dover, and one of the packets mentioned in article 6 of the convention of the 17th of February, 1876, made between the sovereigns of Great Britain and Belgium; that she was and is the property of his Majesty the King of the Belgians, and in his possession, control and employ as reigning sovereign of the state, and was and is a public vessel of the sovereign and state, carrying now, that the public vessels of a foreign state, coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits. Nor will such ships be seized, or in any way interfered with, by judicial proceedings in the name and by the authority of the state, to punish violations of public laws. In such cases, the offended state will appeal directly to the other sovereign. Any proceedings against a foreign public ship would be regarded as an unfriendly if not hostile act, in the present state of the law of nations."

his Majesty's royal pennon, and was navigated and employed by and in the possession of such government, and was officered by officers of the Royal Belgian navy, holding commissions, etc. In answer it was averred on affidavits, which were not contradicted, that the packet boat, besides carrying letters, carried merchandise and passengers and their luggage for hire. * * *

"The proposition raised by the first question seems to be as follows: Has the Admiralty Division jurisdiction in respect of a collision to proceed in rem against, and in case of non-appearance or omission to find bail, to seize and sell, a ship present in this country, which ship is at the time of the proceedings the property of a foreign sovereign, is in his possession, control, and employ as sovereign by means of his commissioned officers, and is a public vessel of his state, in the sense of its being used for purposes treated by such sovereign and his advisers as public national services, it being admitted that such ship, though commissioned, is not an armed ship of war or employed as a part of the military force of his country? * * *

"It is admitted that neither the sovereign of Great Britain nor any friendly sovereign can be adversely personally impleaded in any court of this country. It is admitted that no armed ship of war of the sovereign of Great Britain, or of a foreign sovereign can be seized by any process whatever, exercised for any purpose by any court of this country. But it is said that this vessel, though it is the property of a friendly sovereign in his public capacity and is used for purposes treated by him as public national services, can be seized and sold under the process of the Admiralty Court of this country, because it will, if so seized and sold, be so treated, not in a suit brought against the sovereign personally, but in a suit in rem against the vessel itself. This contention raises two questions; first, supposing that an action in rem is an action against the property only, meaning thereby that it is not a legal proceeding at all against the owner of the property, yet can the property in question be subject to the jurisdiction of the court?

"Secondly, is it true to say that an action in rem is only and solely a legal procedure against the property, or is it not rather a procedure indirectly, if not directly, impleading the owner of the property to answer to the judgment of the court to the extent of his interest in the property? ***

"Having carefully considered the case of the Charkieh, we are of opinion that the proposition deduced from the earlier cases in an earlier part of this judgment is the correct exposition of the law of nations, viz., that as a consequence of the absolute independence of

every sovereign authority and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction.

"This proposition would determine the first question in the present case in favor of the protest, even if an action in rem were held to be a proceeding solely against property, and not a procedure directly or indirectly impleading the owner of the property to answer to the judgment of the court. But we cannot allow it to be supposed that in our opinion the owner of the property is not indirectly impleaded. The course of proceeding, undoubtedly, is first to seize the property. It is undoubtedly, not necessary, in order to enable the court to proceed further, that the owner should be personally served with any process. In the majority of cases, brought under the cognizance of an Admiralty Court, no such personal service could be effected. Another course was therefore taken from the earliest times. The seizure of the property was made by means of a formality which was as public as could be devised. That formality of necessity gave notice of the suit to the agents of the owner of the property, and so, in substance, to him. Besides which, by the regular course of the admiralty, the owner was cited or had notice to appear to show cause why his property should not be liable to answer to the complainant. The owner has a right to appear and show cause, a right which cannot be denied. It is not necessary, it is true, that the notice or citation should be personally served. But unless it were considered that, either by means of the publicity of the manner of arresting the property, or by means of the publicity of the notice or citation, the owner had an opportunity of protecting his property from a final decree by the court, the judgment in rem of a court would be manifestly contrary to natural justice. In a claim made. in respect of a collision the property is not treated as the delinquent per se. Though the ship has been in collision, and has caused injury by reason of the negligence or want of skill of those in charge of her, yet she cannot be made the means of compensation if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to show that the liability to compensate must be fixed not merely of the property, but also on the owner through the property.

"If so, the owner is at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the court. It is no answer to say that if the property be sold after the maritime lien has accrued, the property may be seized and sold as against the

new owner.

"This is a severe law, probably arising from the difficulty of otherwise enforcing any remedy in favor of an injured suitor. But the property cannot be sold as against the new owner, if it could not have been sold as against the owner at the time when the alleged lien accrued. This doctrine of the Courts of Admiralty goes only to the extent, that the innocent purchaser takes the property subject to the inchoate maritime lien which attached to it as against him who was the owner at the time the lien attached. The new owner has the same public notice of the suit and the same opportunity and right of appearance as the former owner would have had. He is impleaded in the same way as the former owner would have been. Either is affected in his interests by the judgment of a court which is bound to give him the means of knowing that it is about to proceed to affect those interests, and that it is bound to hear him if he objects. That is, in our opinion, an impleading.

"The case of The Bold Buccleugh does not decide to the contrary of this. It decides that an action in rem is a different action from one in personam and has a different result. But it does not decide

that a court which seizes and sells a man's property does not assume to make that man subject to its jurisdiction. To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded. any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court.

“But it is said that the immunity is lost by reason of the ship having been used for trading purposes. As to this, it must be maintained either that the ship has been so used as to have been employed substantially as a mere trading ship and not substantially for national purposes, or that a use of her in part for trading purposes takes away the immunity, although she is in possession of the sovereign authority by the hands of commissioned officers, and is substantially in use for national purposes. Both these propositions raise the question of how the ship must be considered to have been employed.

"As to the first, the ship has been by the sovereign of Belgium,

by the usual means, declared to be in his possession as sovereign, and to be a public vessel of the state. It seems very difficult to say that any court can inquire by contentious testimony whether that declaration is or is not correct. To submit to such an inquiry before the court is to submit to its jurisdiction. It has been held that if the ship be declared by the sovereign authority by the usual means to be a ship of war, that declaration cannot be inquired into. That was expressly decided under very trying circumstances in the case of the Exchange. Whether the ship is a public ship used for national purposes seems to come within the same rule. But if such an inquiry could properly be instituted it seems clear that in the present case the ship has been mainly used for the purpose of carrying the mails, and only subserviently to that main object for the purposes of trade. The carrying of passengers and merchandise has been subordinated to the duty of carrying the mails. The ship is not, in fact, brought within the first proposition. As to the second, it has been frequently stated that an independent sovereign cannot be personally sued, although he has carried on a private trading adventure. It has been held that an ambassador cannot be personally sued, although he has traded; and in both cases because such a suit would be inconsistent with the independence and equality of the state which he represents. If the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the court against the owner of the property, then the attempt to exercise such an authority is an attempt inconsistent with the independence and equality of the state which is represented by such owner. The property cannot, upon the hypothesis, be denied to be public property; the case is within the terms of the rule; it is within the spirit of the rule; therefore, we are of opinion that the mere fact of the ship being used subordinately and partially for trading purposes does not take away the general immunity. For all these reasons, we are unable to agree with the learned judge, and have come to the conclusion that the judgment must be reversed." 1

1 In the case of Briggs v. Light-Boats in the Supreme Court of Massachusetts, 1865 (11 Allen, 157), the plaintiff had built some floating lights, for the United States government, and had delivered them and received the contract price; and the title to them had vested in the United States, subject to the builder's lien. The plaintiff now sought to enforce his lien.

GRAY, J., says, in the course of his judgment, "wherever the question has been raised, courts of admiralty have generally declined to take jurisdiction of a libel in rem against a public ship, without the consent of the government. In every aspect in which we can look at these suits, in the light of principle or of authority, we cannot escape the conclusion that the state courts have no jurisdiction or right to entertain them."