BELGIAN REGULATIONS.

29

the number of such vessels flying the same flag, including those already within that zone or in harbor, does not exceed three.

ARTICLE II. Foreign men-of-war may not enter the Belgian waters of the Scheldt, anchor in the roads of Antwerp, nor penetrate within the inland waters of the Kingdom without first obtaining the authorization of the minister of foreign affairs.

This authorization shall be asked through the medium of the subinspector of Belgian pilotage at Flushing.

ARTICLE III. Foreign men-of-war, unless especially authorized by the Government, may not remain longer than two weeks in the Belgian territorial waters and harbors.

They are required to put to sea within six hours when requested to do so by the navy administration or the territorial military authorities, even should the time fixed for their stay not have expired.

ARTICLE IV. Should peculiar circumstances demand it, the Government reserves the right to modify the above restrictions to the entrance or stay of foreign men-of-war in Belgian waters and harbors.

ARTICLE V. The dispositions of Articles I, II, and III do not apply to men-of-war whose admission has been authorized through diplomatic channels, nor to vessels on board of which happen to be either a chief of state, a prince of a reigning dynasty, or a diplomatic agent accredited near the King or Government.

ARTICLE VI. Foreign men-of-war in Belgian waters are prohibited from making sketches or taking soundings, as well as from engaging in landing or firing exercises.

Members of the crew should be without arms when on shore. Commissioned and noncommissioned officers may carry the arms which form a part of their uniforms.

Boats plying in the harbors and territorial waters must not be armed.

Should funeral honors be given on shore, an exemption to paragraph 2 of the present article may be authorized by the minister of war on request of the territorial military authorities.

ARTICLE VII. Captains of foreign men-of-war are required to observe the laws and regulations concerning the police, public health, taxes, and imposts, unless exceptions be established by particular convention or by international usages.

Status of public vessels other than war vessels. From the decisions and regulations it would seem to be established that a public vessel of war would not be liable to the jurisdiction of a local court.

There are, however, many vessels engaged in such service as may give rise to questions in regard to exemption.

These vessels may be engaged in transport, mail, telegraph, collier, or other service for the government of a state and under state control.

Opinions upon the status of such vessels have gradually become more clearly defined.

Status of a troopship.-In March, 1842, the Athol, a British troopship, ran down and sunk the British Shipping Company's brig Jane Clark. Application was made to recover for the loss.

Doctor Lushington gives his opinion in the case:

Now the first consideration which occurs is this, viz: How far could I enforce the execution of the process if it should be granted and resisted? This is an important point to be considered, in the first instance, in all cases of this kind, inasmuch as it would, I conceive, be a very imprudent and scarcely a befitting attempt in any court to issue a process which it could not enforce, and which, if resisted, must terminate in a defeat of the authority of the court. In applying this consideration to the present case the following difficulties suggest themselves as conclusive of the question which I am now called upon to determine: In the first place, I feel that I could not enforce the monition if the lords of the Admiralty should refuse to appear; and secondly, assuming that an appearance should be given on their behalf, and it should be found that the damage in question was occasioned by the fault of the troopship, the Athol, or those on board her, I could not enforce the payment of that damage as against the lords of the Admiralty under the circumstances of this case. But there are also other considerations which induce me to refuse this application. As far as my own experience extends in the practice of this court, I am not aware of any case in which a similar process has been issued; on the contrary, in a case which was decided by Lord Stowell, and which is the only case that I can recollect in any degree approaching to the circumstances of this case, Lord Stowell expressly refused to issue any monition upon the ground that "he was satisfied that the lords commissioners of the Admiralty would be disposed to do justice upon being convinced that wrong had been done, and that the occurrence complained of had actually taken place." (1 Robinson's Admiralty Reports, 374.)

Status of a public mail vessel.—The Parlement Belge, a vessel belonging to the King of the Belgians, unarmed and carrying mails, collided with a private British vessel, the Daring. In the Court of Appeal in 1880 it was held, reversing the decision of the Admiralty Division:

LIABILITY FOR PILOTAGE.

31

As a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction.

In the same case it was also held

that an unarmed packet belonging to the sovereign of a foreign state, and in the hands of officers commissioned by him, and employed in carrying mails, is not liable to be seized in a suit in rem to recover redress for a collision, and this immunity is not lost by reason of the packet's also carrying merchandise and passengers for hire. (5 Law Reports, Probate Division, 197.)

Liability for pilotage.—In the case of Symons v. Baker (K. B. Div., Aug. 4, 1905), the Kharki, a coal vessel owned by His Majesty's Government, was involved. The Kharki was a "collier exclusively engaged in going backwards and forwards to various ports, carrying coal for the navy." She flew the Devonport Dockyard flag, but not the navy flag. She appears in the Navy List under the heading, "List of small steam vessels, tugs, etc., employed on harbor service." Her master held a board of trade certificate issued by the dockyard authorities at Devonport and acted on instructions received from the coaling officer at Devonport Dockyard. "He is not an officer of the royal navy. The crew of the vessel were engaged at the dockyard under articles of agreement." It was claimed that the master of such a vessel was liable to pilotage dues and that the vessel was used for commercial purposes.

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Lord Chief Justice Alverstone, in granting an appeal, said of the claim that the Kharki was used for " commercial purposes."

I think there was nothing commercial about this. I think the facts show, and the learned magistrate does not differ from that, that the Kharki was being employed as what may be called a coal tender, and solely as a tender taking coal to the ships of the navy.

Therefore, unless some distinction can be drawn between one of His Majesty's ships performing a more dignified service and one which was performing, as this vessel was, a most useful but less dignified service, I do not understand the distinction of "commercial purposes."

Now the vessel in question is clearly a King's ship; that is to say, she comes within the words of section 741 of the Merchant Shipping Act, which are," shall not, except as expressly provided, apply to ships belonging to His Majesty." Of the claim that the master of the Kharki would be liable because he ordered the pilotage, it was said, "He [the master] is the master of the King's ship; he acts as master in behalf of the Crown; he is an agent in the ordinary sense of the word." The remedy would be by petition of right for the amount of claim. Neither ship or master could be proceeded against. (X, Asp. Mar. Law, Cas. 129.)

Collision of public and private vessels of different States. In 1883 the Mexican gunboat Independencia ran down the American schooner Daylight. A dispatch from Mr. Frelinghuysen, Secretary of State, to Mr. Morgan, minister to Mexico, shows the attitude of the United States at that period:

Mr. Frelinghuysen to Mr. Morgan.

DEPARTMENT OF STATE, Washington, November 15, 1883. SIR: Your dispatch, No. 690, of the 21st September, in relation to the claim of Capt. Fred. L. Blair, of the American schooner Daylight, has been received.

The note of the 18th of September addressed to you by Mr. FerRandez, a copy of which accompanies your dispatch, has been carefully considered. I regret to find that the inquiry made in my instruction of the 24th of March last (No. 382), and which it is perceived you submitted to Mr. Fernandez, has not, as I conceive, been explicitly answered by the Mexican Government. If liability to the party injured attaches as a result of the Independencia's action in running down the American schooner, such liability is imputable, not to the commander of the gunboat, but to the Mexican Government. If Mr. Fernandez is to be understood as saying that an American citizen may, in such a case, maintain legal proceedings for the recovery of the damages thus claimed directly against the Government of Mexico in the courts of that Republic,

CASES OF COLLISION.

33 I have only to observe that I have not heretofore understood that, under the laws of Mexico, the Government of that country might be sued in its own courts either by a citizen of the Republic or a foreigner, without special permission having first been given for that purpose, and before I could consent to submit the claimant in the present case to the expense and delay of such a proceeding it is desirable that I should be exactly informed on that point.

In Mr. Mariscal's note to you of the 3d of March last, that minister, amongst other observations in regard to the claim, says, "If Captain Blair considered that the Mexican Government is responsible for the disaster which his vessel suffered, he should apply directly to the department of war and marine, under whose jurisdiction the Independencia is. If that department admits the responsibility of the Government in the matter, all difficulties will at once disappear," and the same sentiment is reiterated by Mr. Fernandez in his note to you of the 15th ultimo. With reference to these suggestions I have only to remark that the claim in question is presented by the Government in behalf of its injured citizen through the ordinary and only recognized channels of communication between it and that of Mexico, and if by the laws or administrative regulations of that Republic it is made essential that the facts should be first investigated by the ministry of war and marine, it is conceived that the subject should be referred to that department by the minister of foreign affairs. Such would be the course pursued by this Government were a similar demand to be made upon it by that of Mexico. You will at as early a day as may be convenient bring these suggestions to the attention of the Mexican minister of foreign affairs, and you will say at the same time that, upon a careful examination of the facts, this Department reached the conclusion that the Mexican Government was properly responsible for the damages resulting from the disaster in question, and that the hope is entertained that the minister will see the propriety and equity of an early adjustment of the claim.

I am, etc.,

FRED'K T. FRELINGHUYSEN.

(U. S. Foreign Relations, 1884, p. 343.)

On February 21, 1885, the schooner Lanie Cobb, of Bangor, Maine, while in the harbor of La Guayra, was run down by the Ana Eulogia, a vessel under commission of the Venezuelan Government. Secretary Bayard, writing to the United States representative in Venezuela after it had been found difficult to obtain any redress for damages, said:

At the time of the accident the Ana Eulogia was under commission of the Venezuelan Government, and that Government by