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of courts of such states, because such jurisdiction, if exercised, must divert the public property from its destined public use, and that by international comity, which provides for the equality of states, if such immunity, 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 all other states."

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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 show that this court has no jurisdiction to entertain a personal action for damages. I use the word cover" advisedly, 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 considered which indeed lies on the surfacewhy, if the principle does apply to the officers and crew of a public ship, does it not apply to all cases, for the attorneygeneral'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 performance 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 concluding, words of the last quotation given from the judgment in the Parlement Belge. "By international comity, if such immunity, grounded on such reasons, exist in each state with regard to its own public property, the same immunity must be granted by each state to similar property of all other states." Thus, concludes the learned counsel, seeing that the immunity claimed for the commander of the Alexander does not exist in England with regard to commanders of our own public ships, it can not be recognized as applicable to the commanders 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 Lushington in the Athol case and acted on in subsequent cases being that in case of tort or damage committed by vessels of the Crown the vessels can not be touched, but the legal responsibility attaches to the actual wrongdoer only.

The proposition advanced, though, as I say, very ingenious, involves a non-scquitur; for admitting that the same immunity must be granted as is granted to similar property owned by any state, non constat it may not grant a larger immunity to such

property when belonging to a foreign state. I think, with very great respect, the principle deduced by L. J. Brett from the decision of the Prinz Frederik needs some amplification and explanation. Whatever the rule applicable to 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 upon mutual concessions between such states, and though it may be perfectly true that some of the rules which depend upon comity deal with subjects which are dealt with by the municipal laws of states under analogous circumstances and dealt with moreover by such laws in an identical or similar fashion, it by no means follows that the methods and principles adopted by the municipal law form the criterion of the methods and principles which ought to be adopted when a case, which depends on a comity, comes for decision. Many cases dealt with by comity much resemble cases dealt with by municipal law, but beyond this it is not safe to go. There is an immunity which hedges the sovereignty-by English municipal law this takes the form of maxims. "The king can do no wrong." Statutes 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. Is it to be doubted that the King of England is exempt in France from the jurisdiction of the French courts? This 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 concrete they are based entirely on the mutual recognition of an equal independence, each refraining from acting so as to interfere with that sovereign's independence, and so far as they have not 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-jus for jus, not lex for lex. In this I see no possibility of reference in determining what action is to be taken in any given circumstances by any state when its own sovereign or its public service is concerned.

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I therefore think that the plaintiff's contention can not be maintained, and that the principles enunciated in the Parlement Belge, as applicable 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 divert their public service from its distinct public use.

I may

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refer in this connection to the New Chili Gold Mining Company v. Blanco (4 Times Law Reports, 346), when the court refused to allow a writ to issue out of the jurisdiction in an action to be brought against the ambassador accredited to the French Government. The judge differed as to the ground of 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 country. 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 this case, for unless it he 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 exterritoriality of foreign naval officers, putting it on a par in all respects with the exterritoriality of their vessel. There is complete exterritoriality of ambassadors, but that is a case in which the rule of comity (expressed in statutory form in England) has taken concrete form. But 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 case of acts committed on board ship, but on the contrary that when their ships are in foreign waters all states recognize 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 breach of such laws, even though the result should be to withdraw 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 performance of their duty.

In order to make the analysis as complete as I am able, let us assume that while steering 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 owner damage, I do not believe in such a case any Government would act as in this case the United States Government has felt it its duty to act and ask for the action to be dismissed, and yet the same dicta of the court in the Parlement Belge might have been pressed into this service. The common law furnishes instances of analogous cases, where masters have been held not liable for the negligence of their servants, although the negligent act was committed while the servant was driving his master's carriage, because the servant had gone off the route of duty for a diversion of his own. This analogy seems to warrant this limitation to the naval officer's immunity, which was, in fact, suggested by the learned attorney

general, and that it exists only so long as he forms a part of the machine known as a vessel of war and commits this act of negligence with and by means of such vessel and when it is in whole or in part under his control. But whether such immunity can be claimed by the officer himself I very much doubt. For these reasons the motion of the attorney-general must be sustained and the action dismissed with costs.

This decision establishes the immunity before foreign courts of officers engaged in the naval service when acting in the line of duty.

The decision recognizes as a public officer the master of a collier engaged in the public service under the appointment of the Secretary of the Navy,

Whteher such a master would be a public officer in the sense of the United States statutes is not a matter for a foreign court to decide. His action so far as the foreign state is concerned is the action of a public official of the United States. For this action the United States is responsible.

No suit can therefore be had against the master of the vessel.

This late decision is in accord with the principles that have been developing for many years and in accord with earlier decisions so far as applicable.

Status of United States auxiliary vessels.-By the Regulations for the Naval Auxiliary Service, approved to go into effect April 1, 1907, Chapter I

1. The naval auxiliary service as hereby organized will include such transports, supply vessels, colliers, and other vessels as may be assigned to it by the Department.

2. These vessels shall be governed by the laws of the United States, by the Navy Regulations as far as they may be applicable, and by these regulations.

Thus the naval auxiliary service is directly recognized as an arm of the Navy Department, and if thus recognized by the United States, foreign states cannot question the fact that such vessels are public vessels.

The Government has also prescribed the course of action for commanders of vessels of the United States in case of collision.

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Regulations in regard to collisions.-There should be immediate action in accord with the Regulations for the Navy, 1905, article 422:

(1) In the event of a collision between a ship of the Navy and a merchant vessel, so serious, or under such circumstances as not to admit of immediate repair with the resources at hand, and therefore likely to involve damages, the captain shall order a board of three officers to ascertain all the attendant circumstances, injuries received by the merchant vessel, probable amount of damages, and which of the ships is responsible for the accident; and the master of the merchant vessel concerned shall be notified of the time and place of the meeting of the board and informed that the officers and men of his vessel will be given a hearing by the board, if such hearing is desired. The report shall be prepared in triplicate; one copy shall be forwarded without delay to the commander in chief for the Secretary of the Navy, one retained by the captain of the ship, and the remaining copy given to the master of the merchant vessel, provided that the officers and crew thereof who were witnesses to the collision shall have testified before the board. When repairs have been effected on the spot, a certificate to that effect shall be taken from the master of the merchant vessel and forwarded, through that commander in chief, to the Secretary of the Navy.

(2) If in the presence of a senior officer, the facts shall be immediately reported to him, and he shall order the board.

(3) If the collision occurs in the waters of the United States and results in the loss of life or damage to person or property, the captain shall inform the collector of the district in which it occurs, in accordance with the act of June 20, 1874 (United States Laws relating to the Navy and Marine Corps, 1898, page 136).a

a A law of June 20, 1874, requires that after July 1, 1874, "whenever any vessel of the United States has sustained or caused any accident involving the loss of life, the material loss of property, or any serious injury to any person, or has received. any material damage affecting her seaworthiness or her efficiency, the managing owner, agent, or master of such vessel shall within five days after the happening of such accident or damage, or as soon thereafter as possible, send, by letter to the collector of customs of the district wherein such vessel belongs or of that within which such accident or damage occurred, a report thereof, signed by such owner, agent, or master, stating the name and official number (if any) of the vessel, the port to which she belongs, the place where she was, the nature and probable occasion of the casualty, the number and names of those lost, and the probable amount of the loss or damage to the vessel or cargo; and shall furnish, upon the request of either of such collectors of customs, such other information concerning the vessel, her cargo, and the casualty as may be called for; and if he neglect or refuse to comply with the foregoing requirement after a reasonable time, he shall incur a penalty of one hundred dollars." (18 Statutes at Large, chap. 344, §10.)