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July 14, 1906.}
to be examined in hospital. The pigstyes were in the same state in this village as in Tai Hang. If the narrow winding paths between the pigstyes in those villages were concreted the dirt accumulating there could be easily removed, and if that were done it would be a good thing to have a resident in each village who would be responsible for seeing that his fellow villagers did all they could to keep the place clean. The reason why the pigstyes were in their present condition was that No. 1 district having been without an inspector for three months the licences were not renewed but kept back until there should be opportunity to get the styes in The provisions of the law as to window area, external air, concreting of ground surfaces and overcrowding have not been enforced in these villages. The villagers would probably be ruined if they were enforced.
order.
The report is to be considered.
GOVERNMENT RECOMMENDATIONS,
Discussion took place on the reply from Government relative to the recommendations in connection with the Estimates for 1907, but as the papers were not available to the Press we are not in a position to give a report on the subject.
SUPREME COURT.
Monday, July 9th,
IN ADMIRALTY JURISDICTION,
BEFORE THE Chief JUSTICE (SIE FRANCIS PIGGOTT).
WARSHIP'S IMMUNITY.
CHINA OVERLAND TRADE REPORT.
all
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to proceed in rem against a ship which is at municipal law form the criterion of the the time of the proceedings the property of a methods and principles which ought to be foreign sovereign, is in the possession, control adopted when a case, which depends on comity, and employ of the sovereign by means of his comes for decision. Many cases dealt with by commissioned officers and is a public vessel of his comity much resemble cases dealt with by state? Again: the first question really raises municipal law, but beyond this it is not safe this, whether any part of the public property of to go. There is an immunity which protects any sovereign authority in use for national pur- sovereignty-by Eaglish municipal law this poses is not as much exempt from the jurisdict kes the form of a maxim: "The King can tion of any Court as is the person of every sovereign. And again: A public armed ship constitutes a part of the auxiliary force of a nation, acts under the immediate and direct command of the sovereign, is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and dignity; and, finally, the point and force of this argument in the Prinz Frederik is that the public property of every sover- eign state being destined to public use can not with reason be submitted to the jurisdiction of Courts of such states, because such jurisdic- tion, if exercised must divest the public property from its destined public use, and that by international comity, which provides for the equality of states, if such immanity. grounded on such reasons, exists in each state with regard to its own public property, the same immunity must be granted by each state to similar property of
other states. We may include with very little stretch of language in the term "property of the state" the services of its paid officers, and the different propositions given in this judgment, together with the reasons, seem, as I have said to cover the question of a collision by the alleged negligence of the commander of a state vessel and how that this Court has no jurisdiction to entertain a personal action against him for damages. I use the word cover" advisably, for it may be that if they were applied without limitation to the personnel of this foreign vessel they would be far too wide. Before, therefore, I can hold this to be the law, there is a question to be con- sidered which indeed lies on the surface-why, if the principle does supply to the officers and crew of a public ship, it does not apply to all cases, for the Attorney-General's contention was limited to actions resulting from the performance of duties; whereas the principles above stated, if they apply to the officers and crew, are wide enough to cover all cases, for in all cases the result of bringing this action will be to withdraw the defendant from the efficient performace of his official duties and so interfere with the fighting efficiency of his ship. Secondly, there is the very ingenious point raised by the plaintiff's counsel, based on the whole, and especially on the con- cluding, words of the last quotation given from the judgment in the Parlement Belge". By
such ship international comity, if
immunity, grounded on such reasons, exist in each state with regard to its own public proprty, the same immunity must be granted by each state to similar property of all other states. Thus, concludes the learned counsel, citing that the immunity claimed for the commander of the "Alexander "does not exist in England with regard to commanders of our own public ships, cannot be recognised as applicable to the com- manders of foreign public ships. It is admitted that the commander of a British ship may be sued in an action such as the present, the principle enunciated by Lashington in the
The Chief Justice delivered judgment in the action in which the owners of the junk Tong On Tai" and the owners of the cargo sued Arthur E. Gove, captain of the U. S. S. Alexander" for damages caused by a collision in the waters of the harbour.
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in command of
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the
The Chief Justice said-In this case the Attorney General moved on behalf of the Crown at the instance of the Government of the United States to dismiss an action brought in the Admiralty Jurisdiction of this Court by the owners of the junk "Tung On Tai" and the owners of her cargo, against Arthur E. Gove, the commander of the U, S. 8. Alexander in respect of a collision which occurred in the waters of the harbour. The "Alexander "is an armed public vessel, the property of the Gov. ernment of the United States. The commander was in the pay and service of that Government and under the control of the Secretary to the Navy of the U. 8. At the period of collision he was employed on active service conveying coal and other stores for the use of the public vessels of the U.S. Government on the East Asiatic station and at the actual time of colli- sion he engaged on such service. The ground of the Attorney General's protest is that the Court has no jurisdiction to entertain this action, this method of proceeding being based upon the course pursued by the Admiralty Advocate in the case of the "Constitution". The circumstances of this case are, however, different, for whereas the suit commenced in the case of the "Constitu- tion" was in rem for salvage services Kris suit is in persona, i.e., against the commander for damages in respect of a collision caused by his alleged negligent navigation, and it is not, so far as I know, settled that the principle that ships of war belonging to a nation with whom Athol" case and cited on in subsequent cases this country is at peace are exempt from the being that in cases of tort or damage committed civil jurisdiction of our Courts applies to the by vessels of the Crown, the vessels cannot commanders of such ships when, in the alleged be touched, but the legal responsibilities negligent performance of their duties, they attaches to the actual wrong-dber only. cause damage which under other circumstances I think, with very great respect, the principle would render them liable to an action. The claimed from the decision of the "Prinz exterritoriality of foreigu ships of war was Frederik needs some amplification and ex- considered at length in the case of the "Parle-planation. Whatever the rule, applicable to ment Belge", and in the course of the judgment there are certain dicta which seem, though not in so many words, to warrant the proposition for which the learned Attorney General con- tended, namely, this exterritoriality of the warships extended in sums measure to her officers and crew. If these dicta do bear this extension the commander of the “ Alexander" could not be sued for acts committed by him in the course of the performance of his duty. These dicta are as follows:-Has the Admiralty Division jurisdiction in respect of a collision
such a case as the present may be, there can be no question that it depends upon the comity which nations observe in their relations with one another. But comity depends on mutual con- cessions between states, and though it may be perfectly true that some of the rules which depend on comity deal with subjects which are dealt with by the municipal laws of states under analogous circumstances and dealt with more over by such laws in an identical or similar fashion, it by no means follows that the methods and principles adopted by the
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do no wrong." Statates do not bind the Crown without express reference, but there is no such maxim as Kings can do no wrong". Foreign sovereigns are exempt from the jurisdiction of our Courts, becAUSE the exercise of such jurisdiction is inconsistent with the independence of their sovereignty, the fundamental principle of comity being the equality of independent states, or, to take the converse case, there is no such rule at all in the French codes. It is to be doubted that the King of England is exempt in France from the This jurisdiction of the French Courts. illustration is sufficient to explain what I have just said. Other illustrations could I believe be found, but it is sufficient to say that so far as the rules of comity have become con. crete they are based entirely on the mutual recognition of an equal independence, each state refraining from acting so as to interfere with that sovereign's independence, and so far as they have not as yet become concrete the mutual recognition, when a case arises for decision, is of the spirit of the law rather than of its actual provisions. In this I see no possibility of reference in determining what action is to be taken in any given circumstances to the rule adopted by the municipal law in analogous circumstances by any state when its own sovereign or its public service is concerned. I, therefore, think that the plaintiff's coutention cannot be maintained and that the principles enunciated in the Parlement Belge", as app'icable to foreign public ships, certainly cover the case of the officers and crew on board, because they are under the control and employ of a foreign sovereign in national objects and because the jurisdiction of this Court, if exercised, must div.st their public servico
its distinct public use. from
I may connection to the New Gold Mining Company v Blanco (4 Times Law Reports, 346), when this Court refused to allow a writ to issue out of the
action to jurisdiction in an
be brought against the ambassador accredited to the French Government. The judge differed as to the ground of the refusal, but it being a matter of discretion the then Chief Justice said that the Court ought not to call upon a foreign ambassador in a foreign country to leave his post and come over to this conatry. It would interfere with the duties he had to discharge. This I believe to be a sound doctrine, but it is clear that so far the proposition is too widely stated. For unless it be limited in some way, as the learned Attorney General suggests, in law it arrived at something which, as stated, is not far removed from complete exterritori. officers, putting it ality of foreign naval
refer in this
Chili
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a par in all respects with the exterri- toriality of their vessel. There is complete exterritoriality of ambassadors, but that is a case in which the rule of comity express- ed in statutory form in England has taken : concrete form. Bat it is clear that the case of naval officers has not yet taken such form, for there is no authority that I know of laying down what their immunity is. It is, I think, equally clear that no state has ever claimed such a complete immunity except in cases of acts committed on board ship, but on the contrary that when their ships are in foreign waters all states recognise the necessity for their officers, while on shore, conforming to the municipal laws, and that they make no claim for their surrender in case of breaches of such laws, even though the result should be to with- draw them from their military service. This same principle applies of course to civil actions. This certainly supports the suggestion that the immunity is limited to acts done while in the performance of their duty. In order to make this analysis as complete as I am able, let us assume that while steuring a man-of-war's gig during a regatta, at which the officers and sailors on board were only taking part as spectators, the officer in charge so negligently navigated as to run down a sampan causing its
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