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interposition when the wrongdoing official acted in his capacity as an agent of the government.

While it is generally admitted that the strict rules of agency do not apply to the relations between the government and its officers so as to make the former liable for all wrongful acts of the latter within the scope of their authority,' still international commissions have not always been guided by the distinction, and awards have been made on proof of the mere fact that an officer of the government committed the injury in question. Where the act has been that of a higher official or supreme authority in a given jurisdiction, the presumption is that it was an act of the state and the government has ordinarily been held to incur a direct responsibility. An express or tacit ratification of the act clearly casts liability on the state. There have, however, been numerous cases of injuries by administrative officers, where no inquiry was directed toward establishing their superior or inferior official character or the possibility or fact of judicial recourse or punishment, government liability being predicated on the mere malfeasance or non-feasance of officers upon whom a distinct governmental duty was incumbent. Under this head, customs authorities

1 See dictum by Duffield, Umpire, in Christern (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 523.

2 Even the possibility of legal recourse against the officer would hardly free the state from liability. See Johnson (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1656 (in addition, a decree for redress had been left unexecuted). See also dictum in Oberlander and Messenger (U. S.) v. Mexico, March 2, 1897, For. Rel., 1897, 386 citing Calvo, III, 120, and Cinecue (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3127 (original in MS. Op. I, 14, 15, not quoted in Moore); Lalanne and Ledour (France) v. Venezuela, Feb. 19, 1902, Ralston, 501; Post-Glover Co. (U. S.) v. Nicaragua, March 22, 1900, For. Rel. 835 (governor of a province); Magee (Gt. Brit.) v. Guatemala, 1874 (flogging and unlawful imprisonment by order of Commandante), 65 St. Pap. 875. But see Bensley (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3018, where Government was held not liable for personal act of Governor of a constituent state of Mexico.

3 Eclipse (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3397; Comp. Gen. des Asphaltes (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 338; Fiore, Nouv. dr. int. pub. (Antoine's trans.), 88 667, 668.

* Mr. Everett to Mr. Carvallo, Feb. 23, 1853, Moore's Dig. VI, 741. (It was sought to hold Chile liable for spoliations by “officers" of Chile.) Moses (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3127; Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 896; Crossman (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 298;

have frequently been held to be authorities whose unlawful acts involve a direct responsibility of the state.

1

$ 78. Diplomatic, Naval and Military Officers.

Diplomatic officers are considered authorities of the state with respect to all acts within the apparent scope of their authority.2

The heads of the military arm of the government, the commander of vessels and of armed land forces are presumed to represent the state in their official acts, and to involve its responsibility for unlawful acts inflicting injury upon aliens. 3

In the cases of commanders of vessels, even if the government dis

Culliton case in Colombia, 22 Op. Atty. Gen. 32, Feb. 7, 1898; Canada (U. S.) v. Brazil, March 14, 1870, Moore's Arb. 1733; see also supra, p. 185, note 1.

1 For wrongful collections of customs and confiscation of goods, see supra, note 4, p. 184. For unlawful seizures and detentions of vessels and unjustifiable refusal to clear vessels, see Labuan (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3791; William Lee (U. S.) v. Peru, Jan. 12, 1863, ibid. 3405; Sibley (U. S.) v. Mexico, April 11, 1839, ibid. 3045; Hammond (U. S.) v. Mexico, Apr. 11, 1839, ibid. 32A1; Lalanne (France) v. Venezuela, Feb. 19, 1902, Ralston, 501; Ballistini, ibid. 503; Comp. Gen. des Asphaltes (Gt. Brit.) v. Venezuela, ibid. 336. See also revenue cases in Moore's Arb. 3361-3407. Where seizures have been based on alleged violations of local law, international commissions will, virtually as a court of appeal, reëxamine the legality and regularity of the seizure. Phare (France) v. Nicaragua, Oct. 15, 1879, La Fontaine, 225, Moore's Arb. 4870; Havana Packet (Netherlands) v. Dominican Rep., March 26, 1881, La Fontaine, 241, Moore's Arb. 5036; Butterfield (U. S.) v. Denmark, Dec. 6, 1888, Moore's Arb. 1204; Consonno (Italy) v. Persia, June 5, 1890, La Fontaine, 342. As to sanitary authorities, see Lavarello (Italy) v. Portugal, Sept. 1, 1891, La Fontaine, 411.

2 In Trumbull (Chile) v. U. S., Aug. 7, 1892, Moore's Arb. 3569 the rule was extended to include acts within the minister's ostensible authority. It is probable that a lease signed by a diplomatic representative of a foreign government would bind his government.

A consul's authority to bind his government would be more strictly construed. Responsibility for unauthorized acts when acting in the interests of private persons, e. g., the settlement of estates, has been held to rest upon the consul and not upon the government. For wrongful official acts such as unlawful refusal to clear vessels, the government has been held responsible. (Comp. Gen. des Asphaltes, Gt. Brit. v. Venezuela, Ralston, 336.) The advice of a consul or of a minister as to what his government will consider contraband, as to what cargo is exempt, as to what class of trade is permissible, etc., does not bind his government. The Hope, 1 Dodson, 229; The Joseph, 8 Cranch, 451; The Benito Estenger, 176 U. S. 568, 574.

3 Maninot (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong. Ist sess. 44, 70.

avows the act, indemnities have been awarded. Thus, in 1868 the cabinet at London disapproved the conduct of a captain of an English ship of war which without orders bombarded the city of Cape Haitien and blockaded the port. Great Britain indemnified the French and German merchants whose property and goods were thereby destroyed. Similarly, a violation of frontiers, collision of a private vessel with a national public vessel through the latter's fault, or the illegal capture of private vessels involves the responsibility of the state. Unlawful captures by privateers involve the responsibility of the state,” but not the acts of a vessel which has revolted against the government.3

By article 3 of the Hague Convention of 1907 concerning the laws and customs of war on land, the state is made liable for all acts committed by persons forming part of its armed forces. In the case of pillage by uniformed soldiers, the state is ordinarily only responsible if they are under the command of officers.5

Police officials are not usually held to be "authorities” of the state. Nevertheless when the duty is incumbent upon them to prevent a violation of law, and they forsake their preventive function and actually

1 Bry, 5th ed. (1906), p. 461; Case of the Panther, 1906 (Brazil) v. Germany, Oppenheim, 219 (violation of Brazilian territory); The Schooner Henry (U. S.) v. Peru, March 17, 1841, Moore's Arb. 4601 (seizure of vessel); Confidence (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 3063 (collision); Lindisfarne (Gt. Brit.) v. U. S., Aug. 18, 1910, 7 A. J. I. L. 875. See also 14 Clunet (1887), 598, Bonfils, $ 329, Calvo, § 1265, and Moore's Dig. VI, $ 1008. Congress occasionally refers to the courts the complaints of aliens arising out of collisions between foreign ships and U. S. public vessels. S. 4273, 63rd Cong., 2nd sess. See also 23 Stat. L. 496 and supra, p. 166.

2 France v. New Grenada, Ecuador and Venezuela, 49 St. Pap. 1301; Great Britain v. Buenos Ayres, July 19, 1830, 18 St. Pap. 685, La Fontaine, 92; U. S. v. Venezuela, May 1, 1852, Malloy, Treaties, 1910, II, 1842.

3 Case of the Peruvian vessel Huascar, 68 St. Pap. 745. A decree rejecting responsibility for her acts had been issued by Peru, May 8, 1877. Even in the absence of a decree, her responsibility is doubtful.

* Oppenheim, I, 218; Hall, 214; Adams (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3065. For appropriations of private property and unnecessary devastation, see cases in Ralston's International Arbitral Law, $ 605 et seq., and infra, $$ 80, 104. Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 909. Speyers (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2868 (tariff promulgated by commanding general). A military occupant may establish a nationally valid tariff. McCalmont (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 2866.

Infra, p. 193.

participate in such violation, their action seems to involve a direct responsibility of the state. 1

$ 79. Minor Officials.

The presumption that the international responsibility of the state is engaged by the unlawful acts of its agents does not as a general rule extend to the tortious acts of minor officials, unless the government by some delinquent action of its own-either failure to afford redress in its courts to the injured individual or to punish the guilty officermay be considered as having adopted or sanctioned the wrongful act. This is especially true of such personal and malicious acts as are outside the scope of the officer's real or apparent authority. It has already been noted that the municipal law of different countries varies as to the responsibility for a wrongful act of an officer, some states, such as the United States and various countries of Latin-America denying all responsibility for torts of officers and remitting the injured individual solely to his action against the officer, and other states, such as France and Germany, assuming a large measure of responsibility for its officer's official acts but denying liability for his personal acts. That the rule of international law first above mentioned has suffered numerous exceptions, we have already had occasion to note; yet an examination of a great many cases confirms the view that as a general principle the state is not responsible for the wanton or unlawful acts of its minor officials, unless it has directly authorized, or after notice, failed to prevent, the act, or by failure to arrest, try or punish the guilty offender, or to allow free access to its courts to the injured parties, it may be charged with actual or tacit complicity in the injury. One important reason for this rule is that the wrongful act of the minor official is not presumed to be the act of the state until

1 Panama riot, July 4, 1912; A riot which occurred at Panama April 2, 1915, in which a policeman killed a U. S. soldier, will probably render the Panaman government liable; Claim of Shipley in Turkey, For. Rel. 1909, 733; Cesarino (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 770.

Supra, 88 55, 60. * Calvo, § 1263 et seq.; Bonfils, $ 330; Fiore, op. cit., § 667; Moore's Dig. VI, 88 999– 1000; Anzilotti, in 13 R. G. D. I. P. (1906), 288–292. The Salvadorean law of May 10, 1910 concerning claims against the government is based on these principles, as expounded by Fiore.

some state organ, either a higher court or superior administrative authority, by some independent action or omission, has tacitly ratified the act.

In contractual cases, it is usually a necessary condition of direct governmental liability, that the officer be employed by the government, and be not merely a municipal officer. Nor does the fact that the government issues licenses to particular persons, such as pilots, or grants certain monopolies of public service to individuals make the licensee or monopolist an agent of the state capable of engaging its direct responsibility."

It seems clear that for personal acts of local or minor officials plainly outside of their authority and not incidental to their functions, the officer alone and not the government is responsible. Difficulty arises because the line between personal and official acts is often exceedingly vague. Even if the tort of the officer is within the scope of his functions, unless the government actually benefit by the tort, it has often been held that the only remedy is against the officer and not against the government, although, as has been observed, such a state of facts has frequently been held a ground of state liability, especially in LatinAmerica.

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1 Horatio (U. S.) v. Venezuela, Dec. 5, 1885, 3023; Cushing in 7 Op. Atty. Gen. 237 (Montano case); Mark Gray (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 33.

2 See Mr. Bayard to Mr. West, June 1, 1885, For. Rel. 1885, 457 (wanton kiling of an arrested person by a sheriff after execution of the writ, due to personal malice. This ruling has, however, been called in question); Bensley (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3018 (forcible seizure of a boy). See extracts in Moore's Dig. VI, 742–743. Wilson (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3021 (cheat practiced by a municipal guard); Cahill (U. S.) v. Spain, Feb. 11, 1871, ibid. 3066 (ruin of business by alleged machinations of minor official-probably dictum). But where an assault is connected with an officer's official duty, the government has been held liable. Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 578 (incidental to taking property for public use). So where police officers commit a wanton assault, supra, note 1, p. 189, and “La Masica” case (Gt. Brit.) v. Honduras, Memoria de . . . relaciones exteriores, 1911-12.

3 Atty. Gen. Griggs in 22 Op. Atty. Gen. 64, May 4, 1898 (illegal seizures of vessels); Akerman, Atty. Gen., in 13 Op. Atty. Gen. 553 (act of corruption of inferior judge in Brazil); Cushing in 7 Op. Atty. Gen. 237; Slocum (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3140; Forrest (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2947; Mr. Tripp to Mr. Mix, Oct. 11, 1893 and Mr. Uhl to Mr. Tripp, Nov. 17, 1893, For. Rel., 1894, 23–26 (blunder of local officers in Austria).

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