(4) He shall, if the collision occurs in a foreign port, take such measures as may be required by the port regulations, informing the captain of the port, should it be necessary.

(5) The foregoing provisions of this article shall apply, as far as practicable, in all cases of collision by a ship of the Navy with a wharf, float, or other object.

(6) Whenever, in consequence of injuries sustained in a foreign port by a United States vessel, as a result of a collision between it and a foreign merchant vessel, clearly the fault of the latter, it may become necessary or desirable, on the part of the commanding officer of the vessel, to libel the latter vessel, such libel proceedings shall be instituted in the name of the United States, and not in the name of such commanding officer. In all such cases it shall be the duty of the commanding officer concerned, or of the senior officer present, according to circumstances, immediately to inform the Department of his action.

Résumé.-The situation under consideration is as fol

lows:

A United States auxiliary collier commanded by an officer appointed by the Secretary of the Navy is in a harbor of State X. The collier collides with and injures a foreign vessel. The owner of the foreign vessel brings suit against the commander of the collier for damages under the civil law, claiming that the status of the collier is uncertain, and that the commander would in any case be liable as would the commander of a ship of the State X, the commanders of whose vessels, public and private, are liable in the civil courts of that state, under similar circumstances.

The fact that the commanding officer is appointed by the Secretary of the Navy rather than under the usual commission is not a matter of which any foreign state may properly take cognizance, provided his conduct is regulated by government orders and provided the government is responsible for his action. In this case, so far as the foreign state is concerned, the auxiliary collier is a vessel of the United States Navy and is therefore a public vessel. The precedents, opinions, and regulations show that public vessels are not subject to the jurisdiction of a foreign state in such a situation as is under consideration.

The recent Regulations for the Naval Auxiliary Service of the United States make such a vessel as an auxiliary collier a part of the naval force to be governed by the Navy Regulations as far as these may be applicable.

These Regulations for 1905 provide, article 422, for the course of action in cases of collision.

The aim as set forth in precedents, opinions, and regulations is not to make it possible for the state which they represent to avoid responsibility for acts of public vessels while in a foreign harbor, but rather to avoid complications which might follow if a public vessel is detained during the period of suit before a court.

In order not to interfere with the action of a public vessel and at the same time not to deprive the owner of the foreign vessel which had been in collision of any just compensation for damages, it has become common and in general seems to have worked satisfactorily to present claims through the regular diplomatic channels. Accordingly, the action of the responsible officer should be determined by the above considerations.

Conclusion. The senior officer, acting in accordance with principle, precedent, and regulations, should appoint a board of inquiry and maintain that the suit should not be brought against the master of the auxiliary collier, but that the claims should be referred to the United States Government through diplomatic channels.

SITUATION III.

While there is a war between States X and Y, and the United States neutral, a war vessel of State X captures a merchant vessel flying the flag of the United States, and while returning to the home port of State X brings the merchant vessel into a port of State Z, which is neutral, and in which port there is a war vessel of the United States. The commander of the war vessel of State X orders the merchant vessel to lower the flag of the United States. The captain of the merchant vessel refuses. The captain of the war vessel of State X orders the flag pulled down. The captain of the merchant vessel protests against this act to the commander of the war vessel of the United States.

Should the commander of the war vessel of the United States take any action?

SOLUTION.

The commander of the United States war vessel should protest to the neutral authorities of State Z against the action of the captain of the war vessel of State X in forcibly hauling down the flag of a seized merchant vessel of the United States while in a neutral port of Z and before the decision of a prize court. He should also report the facts to his home government for further action.

NOTES ON SITUATION III.

Early opinion.-Sir William Scott in 1799 announced as "principles of universal jurisprudence applicable to all courts" that

In later times an additional formality has been required, that of a sentence of condemnation, in a competent court, decreeing the capture to have been rightly made, jure belli; it not being thought fit, in civilized society, that property of this sort should be converted without the sentence of a competent court pronouncing it to have been seized as the property of an enemy, and to

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OPINIONS AS TO CAPTURE.

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be now become jure belli the property of the captor. The purposes of justice required that such exercises of war should be placed under public inspection, and therefore the mere deductio infra praesidia has not been deemed sufficient. No man buys under that title; he requires a sentence of condemnation as the foundation of the title of the seller; and when the transfer is accepted he is liable to have that document called for, as the foundation of his own. From the moment that a sentence of condemnation becomes necessary it imposes an additional obligation for bringing the property, on which it is to pass, into the country of the captor; for a legal sentence must be the result of legal proceedings in a legitimate court, armed with competent authority upon the subject-matter and upon the parties concerned a court which has the means of pursuing the proper inquiry and enforcing its decisions. (The Henrick and Maria, 4 C. Robinson's Admiralty Reports, p. 43.)

In his opinion on the Vrow Elizabeth, rendered in 1803, Sir William Scott says that, according to the established principles of law

It has been decided that a vessel sailing under the colours and pass of a nation is to be considered as clothed with the national character of that country. (5 C. Robinson's Admiralty Reports, p. 4.)

Later opinion.-In 1862 Mr. Justice Davis delivered the opinion of the court in the case of the Nassau to the effect that

It is the practice with civilized nations, when a vessel is captured at sea as a prize of war, to bring her into some convenient port of the captor for adjudication. The title is not transferred by the mere fact of capture, but it is the duty of the captor to send his prize home, in order that a judicial inquiry may be instituted to determine whether the capture was lawful, and if so to settle all intervening claims of property. Until there is a sentence of condemnation or restitution, the capture is held by the government in trust for those who, by the decree of the court, may have the ultimate right to it.

The fact of capture determines the jurisdiction, and not the filing of a libel. When captured as prize of war the property is in the custody of the law, and remains there to await the decision of a prize court, and, if condemned, all claims to the property are by it adjusted. Any other rule would work great hardship to captors and tend to cripple the operations of a government during time of war. (4 Wallace, U. S. Supreme Court Reports, 635.)

In a decision of 1902 it is stated that-

Until condemnation captors acquire no absolute right of property in a prize, though then the right attaches as of the time of the capture, and it is for the government to determine when the public interests require a different destination. (U. S. v. Dewey, 188 U. S. Supreme Court Reports, 254.)

Case of the Malacca.-Professor Lawrence sets forth the case of the Malacca, which involved the change of flag before adjudication by a prize court, as follows:

We are now in a position to consider the case of the Malacca and deal with the legal points which have arisen in connection with it. On July 4 the Russian volunteer fleet steamer Peterburg passed the Bosphorus and the Dardanelles, after having been detained by the Turkish authorities for some hours, in the course of which explanations were exchanged with the Russian ambassador at Constantinople. On July 6 she was followed by the Smolensk. Both flew the commercial flag. Each declared she was a commercial ship. Neither could have passed the straits in any other capacity. They maintained the same character when going through the Suez Canal. The Peterburg certainly, and possibly the Smolensk also, engaged pilots for the Red Sea as a vessel of commerce. But soon after leaving Suez she ran up the Russian naval ensign. Guns were brought out of her hold and mounted. Her armament was soon complete. She assumed the character of a war ship and proceeded to cruise against neutral commerce. On July 11, off Jeddah, she stopped and searched two British vessels, the Menelaus and the Crewe Hall, but after being detained for some time they were allowed to proceed. On July 13 she captured the Peninsula and Oriental Company's steamer Malacca to the north of the island of Jebel-Zukkur and brought her to Suez on July 19. The Malacca was passed through the canal in the custody of a Russian prize crew and flying the Russian naval flag, though, in the absence of any sentence of a prize court condemning her, she was still in law a British vessel. She left Port Said on July 21, her destination being unknown, but it was understood that she would be taken to Libau for trial and adjudication on a charge of carrying contraband of war. (War and Neutrality in the Far East, 2d ed., p. 205.)

Sir Charles Harding, the British ambassador at St. Petersburg, made a strong protest. Later "a compromise was made. Of this Professor Lawrence says:

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It is satisfactory to know that the British remonstrance was not without effect. What Mr. Balfour described as a compromise was reached. It was agreed that the Malacca should be taken