1. A foreign sovereign can bring a civil suit in the courts of
the United States.
2. A claim arising by virtue of being such sovereign (such as an
injury to a public ship of war) is not defeated, nor does suit
therefor abate, by a change in the person of the sovereign. Such
change, if necessary, may be suggested on the record.
3. If an injury to any party could be shown to arise from a
continuation of the proceedings after a change in the person of the
sovereign, the court, in its discretion, would take order to
prevent such a result.
4. If a vessel at anchor in a gale could avoid a collision
threatened by another vessel and does not adopt the means for doing
so, she is a participant in the wrong, and must divide the loss
with the other vessel.
The case was one of collision between the American ship
Sapphire and the French transport
Euryale, which
took place in the harbor of San Francisco on the morning of
December 22, 1867, by which the
Euryale was considerably
damaged. A libel was filed in the district court two days
afterwards in the name of the Emperor Napoleon III, then Emperor of
the French, as owner of the
Euryale, against the
Sapphire. The claimants filed an answer alleging, among
other things, that the damage was occasioned by the fault of the
Euryale. Depositions were taken and the court decreed in
favor of the libellant and awarded him $15,000, the total amount
claimed. The claimants appealed to the circuit court, which
affirmed the decree. They then, in July, 1869, appealed to this
Court. In the summer of 1870, Napoleon
Page 78 U. S. 165
III was deposed. The case came on to be argued here February 16,
1871. Three questions were raised:
1. The right of the Emperor of France to have brought suit in
our courts.
2. Whether, if rightly brought, the suit had not become abated
by the deposition of the Emperor Napoleon III.
3. The question of merits; one of fact, and depending upon
evidence stated towards the conclusion of the opinion (
see
infra, pp.
78 U. S.
169-170), where the point is considered.
Page 78 U. S. 167
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The first question raised is as to the right of the French
Emperor to sue in our courts. On this point, not the slightest
difficulty exists. A foreign sovereign, as well as any other
foreign person, who has a demand of a civil nature against any
person here may prosecute it in our courts. To deny him this
privilege would manifest a want of comity and friendly feeling.
Such a suit was sustained a want of comity and King of Spain in the
Third Circuit by Justice Washington and Judge Peters in 1810.
[
Footnote 1] The Constitution
expressly extends the judicial power to controversies between a
state or citizens thereof and
foreign states, citizens, or
subjects without reference to the subject matter of the
controversy. Our own government has largely availed itself of the
like privilege to bring suits in the English courts in cases
growing
Page 78 U. S. 168
out of our late civil war. Twelve or more of such suits are
enumerated in the brief of the appellees, brought within the last
five years in the English law, chancery, and admiralty courts.
There are numerous cases in the English reports in which suits of
foreign sovereigns have been sustained, though it is held that a
sovereign cannot be forced into court by suit. [
Footnote 2]
The next question is whether the suit has become abated by the
recent deposition of the Emperor Napoleon. We think it has not. The
reigning sovereign represents the national sovereignty, and that
sovereignty is continuous and perpetual, residing in the proper
successors of the sovereign for the time being. Napoleon was the
owner of the
Euryale, not as an individual but as
sovereign of France. This is substantially averred in the libel. On
his deposition the sovereignty does not change, but merely the
person or persons in whom it resides. The foreign state is the true
and real owner of its public vessels of war. The reigning Emperor
or national assembly or other actual person or party in power is
but the agent and representative of the national sovereignty. A
change in such representative works no change in the national
sovereignty or its rights. The next successor recognized by our
government is competent to carry on a suit already commenced and
receive the fruits of it. A deed to or treaty with a sovereign as
such enures to his successors in the government of the country. If
a substitution of names is necessary or proper, it is a formal
matter, and can be made by the court under its general power to
preserve due symmetry in its forms of proceeding. No allegation has
been made that any change in the
Page 78 U. S. 169
real and substantial ownership of the
Euryale has
occurred by the recent devolution of the sovereign power. The
vessel has always belonged and still belongs to the French
nation.
If a special case should arise in which it could be shown that
injustice to the other party would ensue from a continuance of the
proceedings after the death or deposition of a sovereign, the
court, in the exercise of its discretionary power, would take such
order as the exigency might require to prevent such a result.
The remaining question relates to the merits of the case. And on
the merits of the case as presented by the record, we think that
the court below erred in imposing the whole damage upon the
Sapphire. We think that the
Euryale was equally
in fault, and that the damage ought to be divided between them. It
is not our general practice to scrutinize very carefully the weight
of evidence in cases of collision, where the evidence is
substantially conflicting and where both district and circuit
courts have concurred in a decree upon the merits. Our views upon
this subject will be found quite fully expressed by MR. JUSTICE
CLIFFORD in the case of
The Baltimore. [
Footnote 3] But this case depends upon a
narrow point, the evidence on which is in our view so decidedly
adverse to the sole liability of the
Sapphire that it
becomes our duty to notice it.
The
Euryale came to anchor in the harbor on the 14th of
December, about six hundred yards from the wharf. She was of four
hundred and fifty tons burden, drew thirteen feet of water, and had
out fifty-six fathoms of chain, and an anchor weighing 3,500
pounds. The
Sapphire, of thirteen hundred tons burden,
came to anchor about the 18th of December, about three hundred
yards (as alleged both in the libel and answer) to the
southeasterly of the
Euryale, at a point father up the
harbor, and farther from the wharf. She had out about fifty fathoms
of chain, and an anchor weighing 3,600 to 3,800 pounds, and she was
heavily laden, drawing about twenty-three feet of water.
Page 78 U. S. 170
On the night of the 21st of December, it commenced to blow
pretty strong from the southeast, by midnight blowing a six-knot
breeze, and it kept increasing up to the time of the collision at
five o'clock the next morning, when it seems to have been blowing a
gale. At half-past three in the morning, the tide changed from ebb
to flood, the direction of flood tide being southeasterly, directly
contrary to that of the wind. And the captain of the
Euryale says (and he is not contradicted) that the wind
was twice as strong as the tide. The weight of the evidence is that
the
Sapphire, under the force of the wind, dragged her
anchor and got inside of the
Euryale -- that is, between
her and the city. At a few minutes past five, the collision
occurred.
The libellant insists that the
Sapphire was in fault in
two points: 1st, in anchoring too near the
Euryale in the
first instance; 2d, in not having out sufficient anchors. We think
that the first charge is not sustained. Experienced pilots
testified that two hundred and fifty yards distance is a good and
sufficient berth in that harbor. And it is to be noted that the
master of the
Euryale made no complaint of too great
proximity, although she and the
Sapphire were lying in the
same relative position for several days. On the other point, we
agree with the district and circuit courts that the
Sapphire was in fault. Had a second anchor been put out at
an earlier period, the collision in all probability would not have
occurred. Indeed, the captain of the
Sapphire gave orders
to the first officer that if she was likely to start, to put the
second anchor down. But it was not done till the collision itself
broke the ring-stopper and let it down. A more careful watch would
have led to the discovery of the vessel's having started, and would
have prevented the catastrophe which ensued.
But we are also satisfied that the
Euryale was not free
from fault. The captain was not on board. The first officer, though
on board, was not on deck from eleven o'clock until after the
collision. Le Noir, the third officer, was officer of the deck that
night. He was called up by the head, or chief, of the watch at
three o'clock to observe that the
Sapphire
Page 78 U. S. 171
was approaching nearer to them than she had been. He attributed
it to her letting out more chain, and returned below, and did not
come on deck again until five o'clock, a few moments before the
collision, when it was too late to avoid it. The instant he came on
deck, he ordered done the thing that could have saved them had it
been done earlier -- the jib to be hoisted. It would have sheered
the vessel off and allowed the
Sapphire to pass her. Such
is the testimony of the libellant's own witnesses. It is the
judgment of the first officer of the ship. Why was not this done
before? Why was not the officer, on such a night, in such a gale,
at his post? At four o'clock, the man in charge of the watch saw
the
Sapphire approaching, and says he made a report to
that effect. The first officer says that no report was made to him.
But the third officer, who was officer of the deck, does not say
that it was not made to him. If the fact was not communicated to
the proper officer, that was in itself a fault. If it was
communicated and not attended to, the case of the libellant is not
bettered. But the evidence is very strong that the officer received
the information. Deveaux, the head of the watch, says that he
reported the fact at four o'clock, and Bioux, who had charge of the
watch between four and five o'clock, says that between those hours
he saw the
Sapphire with the wind astern, and heading the
current, coming towards the
Euryale; that she continued to
approach gradually, and that he reported this to Mr. Le Noir
between four and five o'clock. Here, then, was a clear neglect of
proper precautions for an entire hour immediately preceding the
collision.
We cannot avoid the conviction that there was a want of proper
care and vigilance on the part of the officers of the
Euryale, and that this contributed to produce the
collision which ensued. Both parties being in fault, the damages
ought to be equally divided between them.
Decree of the circuit court reversed and the cause remitted
to that court with directions to enter a decree in conformity with
this opinion.
[
Footnote 1]
King of Spain v. Oliver, 2 Washington's C.C. 431.
[
Footnote 2]
King of Spain v. Hullett, 1 Dow & Clarke 169;
S.C., 1 Clarke & Finelly 333;
S.C., 2 Bligh
N.S. 31; Emperor of Brazil, 6 Adolphus & Ellis 801; Queen of
Portugal, 7 Clarke & Finelly 466; King of Spain, 4 Russell 225;
Emperor of Austria, 3 De Gex, Fisher & Jones 174; King of
Greece, 6 Dowling's Practice Cases 12;
S.C., 1 Jurist 944;
United States, Law Reports 2 Equity Cases 659; Ditto,
ib.,
2 Chancery Appeals 582;
Duke of Brunswick v. King of
Hanover, 6 Beavan 1;
S.C., 2 House of Lords Cases 1;
De Haber v. Queen of Portugal, 17 Q.B. 169; also 2
Phillimore's International Law, part vi, chap. i; 1 Daniel's
Chancery Practice, chap. ii, ยง ii.
[
Footnote 3]
75 U. S. 8
Wall. 382.