File No. 311.654At8/1
The Secretary of State to the Italian Ambassador ( Macchi di Cellere )
Excellency: I have the honor to acknowledge the receipt of the communications addressed by your Embassy to the Department under dates of September 12, October 2, and October 13, 1916, respectively, with regard to the proceedings instituted in the United States District Court for the Eastern District of Virginia against the Italian steamer Attualità which you state has been “requisitioned” by your Government. In one of these communications you represented that the action of a court of this country in taking jurisdiction in this case is inconsistent with “the rules of international courtesy which are universally observed when the sovereign rights of a foreign state are involved.” And you requested that steps be taken with a view to the early release of the vessel, and that I suggest some procedure “that would make it possible to protect required [requisitioned] Italian steamers in the enjoyment of their rights as well as to avoid the considerable delay and the no less considerable loss entailed on the King’s Government by the attachment in American ports of steamers required [requisitioned] by it.”
The Department has examined the judicial proceedings taken in the case of the steamer Attualità, and the questions raised by your communications respecting this case have received the Department’s attentive consideration.
Briefly summarized, the facts and circumstances in, connection with your complaint are as follows:
On September 9, 1916, a libel was filed in the court by the owner of a Greek steamer called the Mina to recover damages to the amount of $800,000 for the losses resulting from a collision between this vessel and the steamship Attualità, which occurred in the month of July, 1916, in the Mediterranean Sea. Counsel for your Embassy appeared in the case as amicus curiae and moved to have the vessel released on the ground of its governmental character. It appears that during the course of the proceedings an appearance was also made by the master of the vessel in behalf of its owners and other interested persons.
On the receipt of the note addressed to the Department by the Counselor of the Embassy under date of September 12, 1916, the Department communicated it to the Attorney General with the request: that the contents thereof be laid before the court, and it appears that in accordance with this request the following statement was presented’ to the court through a representative of the Department of Justice:
I, Richard H. Mann, United States Attorney for the Eastern District of Virginia, acting under the direction of the Attorney [Page 681] General of the United States, respectfully bring to the attention of the court that the Attorney General of the United States has received from the Secretary of State of the United States a communication dated September 15, 1916, to the effect that the Secretary of State has been advised by the Italian Ambassador that the Italian steamship Attualità, which has been libeled and attached in this proceeding, was at the time of the said attachment and is now requisitioned by the Italian Government, and was at the time of said attachment and is now in the service of the Italian Government; and I am further directed to call the attention of this court in this connection to the Luigi, 230 Federal Reporter 493.
In bringing this matter to the attention of the court, the United States does not intervene as an interested party, nor do I appear either for the United States or for the Italian Government, but I present the suggestion as amicus curiae, as a matter of comity between the United States Government and the Italian Government, for such consideration as the court may deem necessary and proper.
On September 28, 1916, the District Court ordered the release of the vessel.
An appeal from the court’s decision was taken by the libelant to the United States Circuit Court of Appeals for the Fourth Circuit. This tribunal apparently held that the ship was not immune from the jurisdiction of the courts of this country, and it reversed the decree of the lower court and remanded the case for further proceedings.
I desire to present to you certain considerations prompting me to reach the conclusion that the decision of the higher court does not conflict with established principles of international law and practice, or involve, as stated in Mr. Brambilla’s note of October 13, “procedure inconsistent with the dignity of a sovereign state,” which this Government would not knowingly sanction or defend.
In the opinion of the Circuit Court of Appeals and in arguments of counsel, reference is made to the case of The Exchange (7 Cranch 116), in which the Supreme Court of the United States held that the public armed vessels of a foreign nation may, upon principles of comity, enter the harbors of this country with the presumed license of the Government, and while there are exempt from the jurisdiction of local courts.
Mr. Chief Justice Marshall in rendering the opinion of the court, said that the “perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.”
It appears that he divided these cases into the following classes: (1) the immunities accorded the person of the sovereign in a foreign [Page 682] country; (2) the immunities granted try civilized nations to foreign diplomatic representatives; (3) the immunities allowed the troops of a foreign prince which are permitted to pass through his dominions; and (4) the immunities granted to public armed vessels.
In order to determine which, if any, of these rules is applicable, it is important to ascertain the exact status of the steamer in question. The only information on this point contained in the communications under acknowledgment is that the vessel has been “requisitioned by the Italian Government. From the record of the court proceedings, however, it appears that under Italian law the owner of a steamer whose services are “requisitioned” by the Italian authorities is paid a compensation by the government calculated on a specifically prescribed basis; that the contract of the enrollment of the crew continues in force during the period of “requisition”; that the owner is obligated to pay the master and crew, as well as all expenses of operating the ship, and the cost of insurance against misfortunes; that the vessel must be returned to the owners at the termination of the period of requisition in a condition defined by the terms of the requisition, and that damages sustained by the vessel in consequence of the services performed must be determined by a technical commission and paid to the owners.
It further appears that under the terms of the requisition of the Attualità, an arbitral procedure is provided for the adjustment of all controversies between the Italian Administration of War and the owner of the vessel in relation to the interpretation and fulfilment of the conditions of the contract of requisition as well as all other matters growing out of the requisition except the amount of compensation to be paid the owner; and that the Italian authorities hold the owners of the vessel responsible for the cargo from the time it is loaded until it is unloaded.
The Attualità, therefore, appears to be not only not an armed public vessel of the Italian Government, but not even a merchant vessel owned by that Government. She seems to be merely a merchant vessel—owned by private persons as heretofore, and fully equipped, insured, manned, and operated by and at the expense of the owners, who are, responsible for any damages sustained by the ship in the course of the services performed as well as for the cargo on board—whose services are purchased for a stated period by the Italian Government for a stipulated compensation. I do not perceive that this private character of the vessel is in any way impaired by the fact that the contract of employment is compulsory rather than voluntary.
It seems obvious, therefore, that the Attualità can not be regarded as entitled to any of the immunities under the rules pointed out by [Page 683] Chief Justice Marshall in the case of the schooner Exchange. Nor do I perceive that there is any other rule of international law or comity granting this vessel immunity from the jurisdiction of the admiralty courts of this country in a case of this character. The object of the court in taking jurisdiction is, I presume, to determine whether the vessel or the owner is liable for the alleged marine tort on account of which the vessel was libeled. The courts are open to the owners of the vessel to defend their rights in the proceedings instituted against it and to endeavor through appropriate proceedings to have set aside by the court of last resort the decision holding the vessel for trial. It seems clear, therefore, that the action of the court in taking jurisdiction in the case on its merits does not necessarily result in directly or in indirectly impleading the Government of Italy.
The Circuit Court of Appeals in its opinion commented briefly on the consequences of granting immunity to a privately owned merchant vessel engaged in the regular trade, though temporarily in the service of the government. The court said:
There are many reasons which suggest the inexpediency and the impolicy of creating a class of vessels for which no one is responsible in any way. For the public armed ships of a sovereign, and for those whether armed or not, which are in the actual possession, custody and control of the nation itself, and are operated by it, the nation would be morally responsible although without her consent not answerable legally in her own or other courts. For torts and contracts of an ordinary vessel it and its owners are liable. But the ship in this case, and there are now apparently thousands like it, is operated by its owners and for its actions no government is responsible at law or in morals.
The persons in charge of the navigation of the ship remain the servants of the owners and are paid by the owners. The immunity granted to diplomatic representatives of a sovereignty, to its vessels of war, and under some circumstances to its other property in its possession and control, can be safely afforded because the usual limited numbers and the ordinarily responsible character of the diplomats or agents in charge of the property in question and the dignity and honor of the sovereignty in whose services they are, make abuse of such immunity rare. There will be no such guaranty for the conduct of the thousands of persons privately employed upon ships which at the time happen by contract or requisition to be under charter to sovereign governments.
There are other practical reasons which impel me to my regret to disagree with the contentions advanced in the communications under acknowledgment. If those contentions were admitted, American tribunals might become impotent to determine even the rights of American citizens in cases of maritime torts, salvage, and contracts involving such vessels, and therefore no remedies would be [Page 684] open to American citizens in such cases except through diplomatic channels. Indeed, it would seem that, if your excellency’s contention is followed to its logical conclusion, the courts of this country would be precluded from the administration of criminal jurisprudence in cases where the arrest of any persons connected with such vessels for any offence committed within the territorial jurisdiction of this country might involve a delay in departure from port.
There is a further consideration to which I must call your excellency’s attention. The steamer Attualità and other private merchant vessels whose services have been required by belligerent governments during the present war have freely entered and cleared in the ports of this country in conformity with the laws and regulations observed by other private merchantmen and have not claimed the immunities from local laws and regulations accorded to public vessels of war by the universal practice of nations.
Should this Government concede the contention which I understand you to make: namely, that vessels having the status of the steamer Attualità should be given in this country a treatment assimilated to that accorded to vessels of war, and should not be subjected to the laws and regulations generally governing merchant vessels in foreign ports, a grave question might, in my judgment, be raised as to the propriety of this Government’s permitting’ such vessels freely to enter, remain at will, and leave the ports of this country, and to transport therefrom merchandise of all kinds, including articles of contraband of war for the direct use of belligerent governments.
The cases of the Athanasios (228 Fed. Rep. 558), and the Luigi (230 Fed. Rep. 493), referred to in the Counselor’s note of September 12, do not appear to me to form a precedent applicable to this case, as it is evident from the reports of these cases that the question of the immunity of the ship from judicial process was not involved in the decisions in these cases.
Furthermore, even though these two decisions might be considered as giving a measure of support to your excellency’s contentions with respect to the immunity of the steamer Attualità, it should be observed that they were rendered by a court inferior to the Circuit Court of Appeals against whose decision in the case of the Attualità your Government now complains.
Since it appears that the action of the Circuit Court of Appeals in refusing to deny the foreign libellant the opportunity to establish his rights in an admiralty court of this country was in conformity with the practice of the courts of the United States to take jurisdiction in controversies in admiralty between foreign vessels, and since it further appears that the proceedings in this case did not involve [Page 685] any attempt to exercise jurisdiction over the Italian Government or its property, I can not bring myself to share the view of the Counselor of the Embassy in his note of October 13, that the judicial proceedings which have taken place contravene “the rules of international courtesy which are universally observed when the sovereign rights of a foreign state are involved,” or to admit that this procedure is “inconsistent with the dignity of a sovereign state.”
I earnestly hope that a further consideration of the case will convince your excellency of the soundness of the views of this Government as to the course adopted, and that you will reach the same conclusion as to the embarrassments and complications which would undoubtedly arise if any other course were pursued, for I am convinced that you are as anxious as I am to avoid creating new controversies of a far more serious nature relating to vessels under contract to your Government entering American ports as private vessels of commerce.
As to means of avoiding the delay and loss to the King’s Government growing out of legal proceedings of this sort, upon which you desire some suggestion, I have no doubt that the court would entertain a proper application of the owners to release the vessel under bonds pending the final disposition of the case, as was done in the case of the Italian steamer Luigi .
Accept [etc.]