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a friendly manner, she should be exempt from the jurisdiction of the by us is whether a ship owned and possessed by a foreign government,
country.. . . and operated by it in the carriage of merchandise for hire, is immune
[Judgment of the Cucuit Court reversed, and judgment of the Dis- from arrest under process based on a libel in rem by a private suitor in a
trict Court, dismissing the libel, afliied.] federal district court exercising admiralty jurisdiction.
This precise question never has been considered by this Court before.
BERIZZI BROS. CO. v. S.S. PESARO Several efforts to present it have been made in recent years, but always
Supreme Court of the United States, 1926 in circumstances which did not require its consideration. The nearest ap-
271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088
proach to it in this Court's decisions is found in The Exchange, 11 U.S.
[A libel in rem was brought against the Pesaro, a merchant vessel (7 Cranch) 116, 3 L.Ed. 287.. ..
owned and operated by the Italian Government and engaged in carrying It will be perceived that the opinion, although dealing comprehen-
cargo and passengers for hue, to enforce a claim for cargo damage. The sively with the general subject, contains no reference to merchant ships
vessel was released on the direct suggestion by the Italian Ambassador owned and operated by a government. But the omission is not of special
that the ship was owned and in the possession of the Italian Govern- significance, for in 1812, when the decision was given, merchant ships
ment, but the Supreme Court reversed, holding that inasmuch as the were operated only by private owners, and there was little thought of
Ambassador had not appeared as a party, the suggestion must come governments engaging in such operations. That came much later.
through the official channels of the United States. The Pesaro, 255 U.S. The decision in The Exchange therefore cannot be taken as excluding
216, 41 S.Ct. 308, 65 L.Ed. 592 (1921). Remanded to the District merchant ships held and used by a government from the principles there
Court, the case was considered on an agreed statement of facts showing, announced. On the contrary, if such ships come within those principles,
inter alia, that the vessel would not be immune from suit in Italy, and they must be held to have the same immunity as warships, in the ab-
that in Italy merchant vessels owned by the United States Government sence of a treaty or statute of the United States evincing a different pur-
would not be immune. The State Department declined to take a position pose. No such treaty or statute has been brought to our attention.
on the vessel's immunity, but a claim and plea in abatement was en- We think the principles are applicable alike to all ships held and used
tered by the ship's master. Judge Mack ovemled objections to the juris- by a government for a public purpose, and that when, for the purpose of
diction of the Court, The Pesaro, 277 Fed. 473 (S.D.N.Y.1921), stat- advancing the trade of its people or providing revenue for its treasury, a
ing, at 481-83: government acquires, mans and operates ships in the carrying trade,
. . . To deprive parties injured in the ordinary course of trade of they are public ships in the same sense that warships are. We know of
their common and well-established legal remedies would not only no international usage which regards the maintenance and advancement
work great hardship on them, but in the long run it would operate of the economic welfare of a people in time of peace as any less a public
to the disadvantage and detriment of those in whose favor the im- purpose than the maintenance and training of a naval force. . . .
munity might be granted. Shippers would hesitate to trade with Decree afhned.
government ships, and salvors would run few risks to save the
property of friendly sovereigns, if they were denied recourse to our These early American opinions accurately reflect the
own courts and left to prosecute their claims in foreign tribunals in basic concept of the absolute theory of jurisdictional im-
distant lands. . .. The attachment of public trading vessels, in my munity, i.e., that a sovereign and its property are total&
judgment, is not incompatible with the public interests of any na- immune to suit and seizure. As will be discussed at a later
tion or with the respect and deference due a foregin power. .. . point in this chapter, the U.S.approach has now become
[In] my opinion, a government ship should not be immune from
seizure as such, but only by reason of the nature of the service in more restrictive in nature. 4
which she is engaged. (2) The U.K. View. The case of the Parlement
And as the Pesaro was employed as an ordinary merchant vessel Belges involved proceedings in rem brought by the
for commercial purposes at a time when no emergency existed or owners of a ship damaged by a collision with the Parle-
was declared, she should not be immune from arrest in admiralty, ment Belge. No appearance was entered on behalf of the
especially as no exemption has been claimed for her, by reason of
her sovereign or political character, through the official channels of Parlement Belge, but the British Attorney General filed an
the United States. information and protest asserting that the court had no ju-
But if I err in believing that the accepted law of this country does not risdiction, inasmuch as the Parlement Belge was a mail
require a holding that merchant vessels owned and operated as such by a packet in the possession, control, and employ of the King
foreign sovereign state are, therefore, exempt from seizure, the Pesaro of the Belgians, and a public vessel of that sovereign and
would, nevertheless, not be entitled to immunity.
I do not base this upon the fact that ships owned and operated for his state. It was not disputed that the Parlement Belge,
commercial purposes by the United States would not be exempt from besides carrying the mail between Ostend and Dover, car-
ordinary process under Italian law, for retaliation and reprisal are for the ried merchandise and passengers for hire. The Admiralty
executive branches of our government and not for the courts. . .. Division overruled the Attorney General's protest, and
But the fact that the steamship Pesaro itself is subject to the ordinary the latter appealed. In allowing the appeal Brett, L. J.,
processes of the Italian court would seem to be vital and decisive. There
is no reason of international comity or courtesy which requires that stated:
Italian property not deemed extra commercium in Italy should be [Tlhe real principle on which the exemption of every sovereign from
treated as res publica and extra commercium in the United States. . . . the jursidiction of every Court has been deduced is that the exercise of
[Following the decision, however, of the Supreme Court in The Gul such jurisdiction would be incompatible with his regal dignity-that is to
Djernal, 264 U.S. 90, 44 S.Ct. 244, 68 L.Ed. 574 (1924), that a ship's say, with his absolute independence of every superior authority. . . .
master was not a proper person to "vindicate the owner's sovereignty," [Wle are of the opinion that the proposition deduced from the earlier
the order of Judge Mack in The Pesaro was vacated by consent of the cases in an earlier part of this judgment is the correct exposition of the
parties. The Italian Ambassador then fded a claim and answer. The court law of nations, viz., that as a consequence of the absolute independence
upheld the immunity of the Pesaro, finding the weight of authority of every sovereign authority and of the international comity which in-
against the position adopted by Judge Mack. 13 F.2d 468
(S.D.N.Y.1926). Libellant appealed to the Supreme Court.] 4. Idra note 1 1.
VAN DEVANTER, 5. 5 P.D. 197 (Court of Appeal 1880).
J.: . . . The single question presented for decision