stitutional use of property must be conclusively presumed to be public, but government ownership, apart from active use in the business of government, should not necessarily impute to property a public character. In the enforcement of judgments against municipal corporations a distinction is commonly made between property owned for profit and charged with no public trusts or uses, which may be sold on execution; and property used for public purposes, such as hospitals, fire engines, waterworks, and the like, which is exempt from execution.13 This distinction is applicable to cases against the property of sovereigns, and government use furnishes a more rational and less fortuitous test than government possession.

The English Privy Council has disregarded the rule laid down in The Davis.14 Young v. S. S. Scotia 15 was a libel filed against a ship belonging to the Canadian government. It was argued that at the time of the libel the boat was still in the possession of the builders, but the Lord Chancellor said that the question of the possession of the Crown was immaterial.

In an earlier case involving the property of a foreign sovereign the English Court of Appeals did not even notice the question of possession. Vavasseur v. Krupp 16 was an action for infringement of patent rights, the plaintiff seeking an injunction to prevent the removal of certain shells owned by the Mikado of Japan and in the possession of commercial agents. The court refused to grant an injunction and James, L. J., refers to the plaintiff's action as "one of the boldest I have ever heard of as made in any Court in this country."

The Massachusetts court has taken the same position. In Mason v. Intercolonial Railway,17 in an action by trustee process, trustees were summoned as having in their possession property of the defendant railway, which in turn belonged to the King of England. In holding there was no jurisdiction the opinion quoted from and relied on the leading cases of actions in rem against the property of a sovereign.

13

DILLON, MUNICIPAL CORPORATIONS, 5 ed., § 992; 3 MCQUILLEN, MUNICIPAL CORPORATIONS, § 1160.

14 Supra.

15 [1903] A. C. 501.

17 197 Mass. 349 (1908).

16 9 Ch. D. 351 (1877).

Two cases of libel for salvage services arising in federal district courts, Long v. The Tampico 18 and The Johnson Lighterage Co., No. 24,19 have followed The Davis 20 where the property proceeded against belonged to a foreign government. In the latter case the court declared the principle on which immunity is granted is the same whether it is the domestic or a foreign sovereign that is involved. The correctness of this statement needs examination. It is evident from Marshall's opinion in The Exchange 21 that he regarded the various kinds of immunity accorded foreign sovereigns as matters of grace or comity. But in United States v. Clarke 22 Marshall stated it as a matter of "common right" that the United States could not be sued. In Lord Esher's time the immunity of foreign sovereigns and their property was recognized as a right, but this right was simply the outgrowth of international practice. It is reasonably clear, therefore, that the courts did not regard the immunity of foreign sovereigns as a mere matter of deduction from the well-settled immunity of the domestic sovereign. The immunity accorded, moreover, has different bounds in the two cases. In the immunity of the local state there can be found nothing analogous to the immunity given under certain circumstances to the private servants of a foreign ambassador.

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.

The decisions of the federal courts based on The Davis 23 must be considered contra to the current of authority in international law.24 In view of the fact that the law has always favored salvage 18 16 Fed. 491 (1883). 231 Fed. 365 (1916).

20 Supra.

22 8 Pet. (U. S.) 436 (1834).

19

21 Supra.

23 Supra.

24 See the statement in HALL, INTERNATIONAL LAW, 7 ed., 211: "If in a question with respect to property coming before the courts a foreign state shows the property to be its own, and claims delivery, jurisdiction at once fails, except in so far as it may be needed for the protection of the foreign state."

claims,25 the way still lies open to the courts to restrict the authority of these cases to salvage claims. In The Florence H.,26 however, Judge Learned Hand expressed the opinion that the same principles apply to every kind of action brought in invitum against a sovereign.

The question whether immunity attaches to the ship of a foreign sovereign used for trading purposes was at one time somewhat doubtful. Sir R. Phillimore in The Charkieh 27 advanced the view that no immunity would be granted a trading vessel. The case before him was a ship belonging to the Khedive of Egypt. Although the cases do not appear to have made any distinction between personal and governmental sovereigns, it might be urged that property of the former embarked in commercial enterprises was used for private ends, while property of a state engaged in commerce must ordinarily be regarded as vested with a public character.

In The Parlement Belge 28 Lord Esher decided that the immunity of a national ship is not lost because of its partial use for trading purposes. In The Jassy 29 the court refused to take jurisdiction of an action against a ship belonging to the Roumanian government and used in connection with the state railway. The ship which was held immune in The Eolo 30 was carrying a cargo of iron ore to be delivered to private consignees to be made up into war material for the Italian government.

The American cases have also failed to follow Sir R. Phillimore's dictum. In Mason v. Intercolonial Railway 31 the Massachusetts court refused to take jurisdiction of an action by trustee process summoning trustees who had in their possession property of a foreign sovereign. In The Pampa 32 a United States district court held exempt from arrest an Argentine naval transport employed

25 See BENEDICT, ADMIRALTY, 4 ed., § 224: "Salvage service is highly favored in law, in all commercial countries, from motives of clear public policy and a regard to the interests of commerce."

in carrying a cargo of general merchandise belonging to private persons. The vessel was to carry on its return voyage material for the use of the Argentine Republic. In The Attualita 33 the ship at the time the libel was served was on her way under orders of the Italian government to load a cargo of grain and rails for Italy. No question was made of the public use of the vessel although she was refused immunity on other grounds.

The most recent case on this subject, The Maipo,34 holds immune a Chilean naval transport which the government as the result of public bidding chartered to a private individual for commercial purposes. The court assumed that the foreign government may have retained possession of its ship through its naval captain and crew for the very purpose of keeping the vessel immune in foreign ports. This circumstance was not considered important. The result and effect of holding the vessel immune was treated as the determining factor in the decision. In this connection Judge Mayer said:

"These enterprises may, in some instances, be regarded (technically speaking) as commercial, but may, in substance, be of benefit to the people at large. Time is of vital importance to every ship, of whatever nationality, which sails the seas. ... Whatever loss or inconvenience, if not safeguarded against, might thus result either to our people when dealing with foreign ships or to foreign peoples when dealing with us, is the price which the individual is paying for the ultimate benefit of his country."

Cases relating to property of the domestic sovereign are equally conclusive. The ship libeled in Young v. S. S. Scotia 35 was a ferry-boat in the Canadian government's railway system. The Lord Chancellor treated the property right of the Crown as conclusive of the court's lack of jurisdiction. In The Florence H.36 Judge Learned Hand recognized the public character of a ship which at the time it was libeled was chartered to the Emergency Fleet Corporation and was engaged in loading a cargo of food for the French government. The arrangement between the Fleet Corporation and the French government was assumed to be "no other than the carriage of freight for hire."

Courts could scarcely, consistently with the general principles which have guided them, refuse immunity to the ships of foreign nations used in trade. Sovereign authority would shrink to small proportions if not permitted to determine what uses of its property are public. To inquire into the use of property declared by a foreign sovereign to be public would be to flout the dignity of sovereignty which the courts have declared entitled to respect. In The Parlement Belge 37 the sovereign's statement covering the public use of his property was regarded as barring inquiry, and in The Exchange 38 the court refused to question the sovereign's statement as to title.

Certain recent English cases have made government use of private property the basis of immunity. The Broadmayne 39 was an action in rem for salvage services against a ship requisitioned by the English Crown. The requisitioning was a compulsory hiring which left title and possession in the owners. The Court of Appeal made an order forbidding the detention of the ship while under requisition. Swinfen Eady, L. J., speaks of the ship as, "in the service of the Crown, and as such exempt from process of arrest." Pickford, L. J., speaks of "the right of the Crown not to have its prerogative interfered with, and not to have its interest in any way deteriorated." Bankes, L. J., said,

..

"The vessel whilst the requisition lasts, is .. publicis usibus destinata, and as such not liable to the claims or demands of private persons."

40

In this case the English court appears to go far toward adopting the principle enunciated by Judge Gray in Briggs v. Light-Boats, the necessities of government. As he there said,

“[It] would endanger the performance of the public duties of the sovereign . . . to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on the government in war and peace, and the money in his treasury."

The case on this basis is a logical extension of previous doctrine. During the period that the state employs and controls private property, that property is in the service of the state and must be treated as assimilated with the public property of the state.

37 Supra.

39 [1916] P. D. 64. •

38 Supra.

40

II Allen (Mass.) 157, 162 (1865).