ing with the former, however, it is said to be the duty of police authorities to have regard for the rank of the offenders, and to accord them, while under arrest, treatment that shall not betray disrespect towards the naval service of their country.1 Possibly the commander of a vessel of war who goes ashore in order to accomplish an end directly connected with or incidental to the public business which brought his vessel into the port, ought not, while so engaged, to be amenable to local process, provided he does not, in the course of his errand, violate the local law. It is believed that he should not, for example, be arrested for an offense committed during a previous visit, or be served with process in a civil suit charging him with tortious conduct at any prior time. It is not known, however, that such an exemption within the limits stated has been claimed or granted by the United States. For reasons of courtesy and expediency, a usage has arisen permitting foreign officers to seize and take on board their ships, without obstruction, members of crews who have become intoxicated and whose offenses have not been directed against persons or property ashore; 3 likewise, to exercise the customary authority for the maintenance of discipline over seamen, remaining ostensibly within the foreign naval service, and subject to its de facto control. Such officers obviously possess no right, however, to arrest seamen who have deserted and escaped from actual control.5 (5) 256. Other Vessels in Foreign Public Service. The reasons which justify and demand the exemption from local jurisdiction of foreign vessels of war are applicable also to other ships devoted to foreign public service. This is fully acknowledged Leal, Brazilian Chargé, Aug. 30, 1847, S. Ex. Doc. 35, 30 Cong., 1 Sess., 29, Moore, Dig., II, 586; Mr. Seward, Secy. of State, to Mr. Webb, Jan. 23, 1867, MS. Inst. Brazil, XVI, 162, Moore, Dig., II, 590; Mr. Fish, Secy. of State, to Commodore Case, Jan. 27, 1872, 92 Dom. Let. 322, Moore, Dig., II, 588; Mr. Sherman, Secy. of State, to Mr. McKenzie, Minister to Peru, telegram, April 2, 1897, MS. Inst. Peru, XVIII, 24, Moore, Dig., II, 588. 1 See Case of the Forte, Moore, Arbitrations, V, 4925-4928, citing Brit. and For. State Pap., LIII, 150, id., LIV, 579, Moore, Dig., II, 587. Declares Hall: "Even the captain is not considered to be individually exempt in respect of acts not done in his capacity of agent of his State." Higgins' 7 ed., 208. 3 Mr. Buchanan, Secy. of State, to Mr. Leal, Brazilian Chargé, Aug. 30, 1847, Senate Ex. Doc. 35, 30 Cong., 1 Sess., 28, 32, Moore, Dig., II, 589. Tucker v. Alexandroff, 183 U. S. 424, 433, Moore, Dig., II, 590. 5 Id. OTHER VESSELS IN FOREIGN PUBLIC SERVICE [$ 256 with respect te vessels owned and possessed by a State, and notably when they belong to some department of the government.1 American courts appear, however, to have encountered difficulty in agreeing as to the circumstances when a foreign merchant vessel requisitioned by the government of its own State is likewise to be accorded exemption.2 There seems to be no doubt that the essentially public character of a ship is not lost by reason of her incidental use as a vehicle of commerce, provided the vessel be employed substantially for national purposes.3 Again, as to whether a ship is so employed and concerning the fact of requisition, the courts of the United States are disposed to accept the declaration of the foreign sovereign making the claim. Doubtless an appropriate method of suggesting to a tribunal the interest of such a sovereign is through the medium of the executive branch of the government. The Supreme Court has recently deemed inadequate the suggestion in behalf of a foreign embassy presented by private counsel appearing as amici curiæ.5 According to the trend of a group of American decisions, requisition does not suffice to exempt a foreign ship from local jurisdiction unless the vessel is within the actual possession of the authorities of the sovereign thus attempting to assert control. This 1 Thus revenue cutters, or ships belonging to any department of a foreign State, would be doubtless accorded exemption without question. 2 During The World War, both before and after the United States became a belligerent, numerous ships were requisitioned by European powers, and impressed into the public service for use in transporting supplies across the Atlantic. Certain of these vessels were libeled in American ports. 3 See The Parlement Belge, L. R. 5 P. D. 197, in contrast to The Charkieh, L. R. 8 Q. B. 197. See, also, The Maipo, 252 Fed. 627; The Maipo, 259 Fed. 367; also, The Jassy, 1906, 10 Aspinwall, 278. See procedure followed in the case of The Schooner Exchange v. McFaddon, 7 Cranch, 116, 118; The Pizarro, 19 Fed. Cases, No. 11,199; The Luigi, 230 Fed. 493, 495; The Maipo, 252 Fed. 627; The Carlo Poma, 259 Fed. 369. In re Muir, 41 Sup. Ct. Rep. 185; The Pesaro, U. S. Sup. Ct., Feb. 28, 1921. See The Roseric, 254 Fed. 154, 162-163, where the Court received and acted upon the suggestion in behalf of a foreign State, and made known by counsel for its embassy, acting as amici curia. Compare The Florence H., 248 Fed. 1012, 1017. In the case of The Adriatic, 258 Fed. 902, the Circuit Court of Appeals, Third Circuit, declared that where the suggestion was made by the British Ambassador, appearing as amicus curia, it felt bound, on principles of international comity, to accept the suggestion and avowal "as conclusively establishing both the fact of the requisition and its governmental character." Haight, J., 904. See, also, The Athanasios, 228 Fed. 558. See, for example, The Attualita, 238 Fed. 909; The Tampa, 245 Fed, 137: The Maipo, 252 Fed. 627. See also The Johnson Lighterage Co. No. 24, 231 Fed. 365, 366-367. In the case of The Carlo Poma, 259 Fed. 369, 370, it was stated by way of dictum by Ward, J., in behalf of the Circuit Court of Appeals (Second Circuit): "The law of the United States is the same [as the English], except that requirement may be attributable to a decision of the Supreme Court of the United States in 1869, in a case not involving any question of international, law. On principle, however, it would seem that not the ownership or exclusive possession of a ship by a foreign sovereign gives rise to the claim of immunity, but rather the appropriation and devotion of the vessel to the public service under governmental authority. This idea has found some judicial approval in the United States. When a ship which has been the immunity of property of a sovereign, whether the United States or a foreign sovereign, depends, not merely upon the ownership, but also upon the actual possession by the sovereign of the property at the time the process is served. The Davis. 10 Wall. 15, 19 L. Ed. 875; Long v. The Tampico (D. C.), 16 Fed. 491; The Attualita, 238 Fed. 909, 152 C. C. A. 43." It may be noted that in this case the vessel was owned and operated by the Italian Government, and clearly entitled to the exemption demanded in its behalf. See, in this connection, Fred K. Nielsen, "Lack of Uniformity in the Law and Practice of States with Regard to Merchant Vessels", Am. J., XIII, 1, 12–21. The case was that of The Davis, 10 Wall. 15, where the question was whether personal property of the United States on board a vessel for transportation, was subject to a lien for salvage services rendered in saving the property; and whether, also, such a lien should be enforced when the property was not in the possession of an officer of the Government, and the process of the Court could be enforced in a proceeding in rem without disturbing the possession of the Government. No question of international law was involved. The reason for permitting the enforcement of the lien under the circumstances stated, was because such action did not conflict with the theory on which the Government was exempt from local process without its own consent. That theory was not identical with that on which, under the law of nations, a foreign sovereign claims and enjoys exemption for vessel property. The distinction between the nature of the two claims was thus tersely emphasized by Charles H. Weston in "Actions Against the Property of Sovereigns", Harv. Law Rev., XXXII, 266, 270: "It is said that the principle governing both cases is the same since immunity is granted out of respect for the 'independence of sovereign authority.' In so far as this phrase expresses the policy underlying the decisions, it merely cloaks the difference between them. In cases involving the local sovereign it represents the State's need for executive freedom from harassing litigation. In cases involving the foreign sovereign it indicates the desire to avoid international friction by substituting diplomatic negotiations for the decrees of local tribunals." See, also, The Roseric, 254 Fed. 154, 161, where Rellstab, J., declared "The immunity of the sovereign's instrumentalities devoted to public service from the process of its own courts, as I understand the previous cases, is not based upon the idea that it may be 'safely accorded', but on account of its dignity and independence, and because it is necessary, for the well-being of the nation that it serves, that it shall not be hampered or interfered with in the use of such instrumentalities. "In the case of the courts of one sovereignty waiving jurisdiction over another sovereignty's instrumentalities, the thought of safety to private litigants, to my mind, is at least equally irrelevant. The immunity in such cases, as already noted, is based upon the idea that sovereigns are of equal dignity and independence, and that out of regard for such rights, and to maintain and further amicable relations among them, it is, by tacit agreement, recognized as needful, in certain particulars, that one sovereign should decline to exercise some of its prerogatives when to exercise them would necessarily place another sovereign in a subordinate position." 2 Rellstab, J., in The Roseric, 254 Fed. 154, 160. in The Parlement Belge (1900), L. R. 5 P. D. 197, 217; L. R. 81; The Messicano, 32 Times L. R. 519. See, also, the reasoning NEED OF GENERAL AGREEMENT [§ 257 requisitioned for a definite public service, such as an admiralty transport, is engaged in the carriage of governmental supplies, and the officers acknowledge the duty to obey the governmental assertion of control and act accordingly, the circumstance that the vessel is neither owned nor actually possessed by the requisitioning State would appear to be immaterial. In such case the dedication of the ship to the public service would seem to render the constructive possession by the sovereign as efficacious for purposes of exemption as actual possession manifested by the assertion of control through the medium of its own officers.1 $257. The Same. Should the nationalization of merchant vessels, by requisition or any other process, serve to create a large volume of tonnage engaged under governmental control in commercial enterprise, and notably in foreign trade, there would be reason to withhold exemptions not accorded private ships, unless there was definite understanding that the State of the flag should assure full responsibility for the conduct of its vessels, and also place within the reach of the individual claimant a simple and direct means of obtaining justice.2 Obviously the matter is one demanding general international agreement to establish a reasonable substitute for the broad yielding of jurisdiction by the territorial sovereign.3 It should be observed, however, that, in the meantime, any restriction of the existing right of exemption is hardly a matter within the discretion of the courts. While the individual State may 1 See Brief by Messrs. Coudert Brothers, in support of suggestion of British Embassy in the case of Muir v. Chatfield, in the Supreme Court of the United States, October Term, 1918, No. 28, Original. 2 It is believed that the success with which the principles laid down in the case of The Schooner Exchange v. McFaddon, and in that of The Parlement Belge have generally been invoked in behalf of foreign public vessels has been due in part to the infrequency of the demand for exemption from local process, and also to the resulting circumstance that the mutual public benefits attributable to respect for the exemption claimed have far outweighed any opposing equities of the libelants. It is not without significance that the number of litigated cases in the United States between 1915 and 1919 far exceeded that of those confronting American tribunals throughout the entire previous life of the nation. 3 As to the nature of an efficacious substitute there may be a wide diversity of opinion. It may be suggested that the establishment of an international maritime tribunal or commission available as a court of first instance within the port of the territorial sovereign, and supposedly representative of the State of the ship as well as of that sovereign might fulfill the necessary function. The numerous treaty provisions conferring upon a consular officer jurisdiction of certain classes of disputes arising between officers and crew of merchant vessels of his nation afford a significant precedent. 4 Hough, J., in The Maipo, 259 Fed. 367. not lawfully by legislative enactment modify the requirements of international law, it may without impropriety express its own view as to what they demand, and in so doing announce a rule for the guidance of its courts. (6) § 258. Other Foreign Public Property. The matter of the exemption from local jurisdiction of public property belonging to a foreign State and other than its vessels, is affected by the principle that a foreign sovereign cannot be sued without its consent. The attempt, therefore, to make it a party defendant and incidentally attach its property, must fail.1 If such a sovereign invokes the aid of a local court of equity in order to acquire possession of property to the title of which it has succeeded, it may, doubtless, be fairly deterred from taking possession without satisfying a lien accruing prior to its ownership.2 While a foreign State, on becoming a plaintiff, subjects itself to the obligation to satisfy a set-off arising out of the same action, it does not expose itself to the defense of a proceeding setting up another claim in respect of another and entirely distinct matter.3 Such a State by bringing suit does not subject itself to a counterclaim on which an affirmative judgment is asked.* With respect to property owned by a foreign sovereign, exemption is yielded, according to American judicial opinion, when the owner or its agent has possession.5 When it lacks possession, the 1 Hassard v. United States of Mexico, 61 N. Y. Supp. 939, affirmed in 173 N. Y. 645 (commented on by John W. Foster, in Yale Law J., IX, 283-286); Mason v. Intercolonial Ry., 197 Mass. 349 (commented on in Mich. Law Rev., VI, 575); Kingdom of Roumania v. Guaranty Trust Co., 250 Fed. 341; also De Haber v. Queen of Portugal, 17 Q. B. 196; The Parlement Belge, L. R. 5 P. D. 197. See, also, Nathan Wolfman, "Sovereigns as Defendants", Am. J., IV, 373; Charles H. Weston, "Actions against the Property of Sovereigns", Harvard Law Rev., XXXII, 266. 2 United States of America v. Prioleau, 35 L. J. Chancery, N. s. 7, Moore, Dig., I, 64. 3 Kingdom of Roumania v. Guaranty Trust Co., 250 Fed. 341, reversing 244 Fed. 195; People v. Dennison, 84 N. Y. 272. See, also, South African Republic v. Compagnie Franco-Belge, 1898, 1 Ch. Div. 190, 195, citing Duke of Brunswick v. King of Hanover, 6 Beav. 38; situation in case of Von Hellfeld v. Russian Government, Prussian Court for Determination of Jurisdictional Conflicts, 1910, Am. J., V. 490. In the case of Mighell v. Sultan of Jahore, 1 Q. B. 1894, 149, the exceptional situation was noted in the case in which a foreign sovereign might be named as defendant for the purpose of giving him notice of the claim which the plaintiff made to funds in the hands of a third person or trustee over which the court had jurisdiction. See, also, Strousberg v. Republic of Costa Rica, 44 Law Times R., 199. French Republic v. Inland Nav. Company, 263 Fed. 410. In the case of Mason v. Intercolonial Ry. Co., 197 Mass. 349, the property |