in the appropriate exercise of his Executive power in the field of foreign relations." He adds that an international commitment in the above respect would be in accordance with established policies of the United States in related fields. In this connection he states:

“*** Thus, it has been the long-established policy of the United States Government not to claim sovereign immunity in foreign jurisdictions for merchant vessels owned or operated by the United States (see letter of May 19, 1952 from the Acting Legal Adviser to the Attorney General which appears in 26 Department of State Bulletin 984 (June 23, 1952)). It has also been the policy of the Department of State in recent negotiations for the establishment of international conventions covering liability with respect to both nuclear propelled ships and land-based reactors to promote the establishment of limits of liability in connection with nuclear incidents at levels high enough to ensure adequate protection of the public. A commitment not to assert the defense of the relatively low limits of ship-owner's liability in the event of nuclear incidents involving the 'Savannah' would be consistent with this last-cited policy. A commitment to limit such liability at the limit of $500,000,000 in addition to the amount of financial protection required as established in Section 170 of the Atomic Energy Act of 1954, as amended, would also be consistent with this policy.'

In responding to your request for my opinion, I should like it to be expressly understood that I am limiting myself to the specific questions raised concerning suits in foreign courts. Nor have I considered in any way the desirability of entering into the undertakings contemplated. This is, of course, a matter beyond my province.

I

As to consent to suit, you invite my attention to the Suits in Admiralty Act (act of March 9, 1920, c. 95, 41 Stat. 525, as amended, 46 U.S.C. 741, et seq.) and express the view that an international commitment by the United States of the nature contemplated is not inconsistent with that act. Section 1 of the act, 46 U.S.C. 741, exempts from arrest or seizure by judicial process in the United States or its possessions any vessel of the United States and the cargo thereof. A libel

in personam may be brought in a Federal district court against the United States in those cases where, if a privately owned vessel or private persons were involved, a proceeding in admiralty could be maintained. Section 2 (46 U.S.C. 742).3 As stated in Blamberg Bros. v. United States, 260 U.S. 452, 459 (1923), "it was intended to substitute this proceeding in personam, *** in lieu of the previously unlimited right of claimants to libel such vessels in rem in the ports of the United States and its possessions." See also, Eastern Transportation Company v. United States, 272 U.S. 675, 677 (1927), and H. Rept. 497, 66th Cong., 2d sess., p. 3, Ser. 7652.

Section 7 of the act, 46 U.S.C. 747, deals with seizures of vessels of the United States or their cargoes in foreign ports. It provides that, if such vessel or cargo is arrested, attached, or otherwise seized by process of any court in any country other than the United States, or if any suit is brought therein against the master in connection with the operation of the vessel or the cargo thereof, the Secretary of State, "in his discretion, upon the request of the Attorney General of the United States * * * may direct the United States consul *** to claim such vessel or cargo as immune from such arrest, attachment, or other seizure, and to execute an agreement, undertaking, bond, or stipulation for and on behalf of the United States *** for the release of such vessel or cargo, and for the prosecution of any appeal; or may, in the event of such suits against the master * * * direct said United States consul to enter the appearance of the United States *** and to pledge the credit thereof to the payment of any judgment and cost that may be entered in such suit. *** Provided, however, That nothing in this section shall be held to prejudice or preclude a claim of the immunity of such vessel or cargo from foreign jurisdiction in a proper case." Section 8 provides that any final judgment within

3 It has been well established since an early date that the executive department of the Federal Government has no authority, without the consent of Congress, to subject the United States to suit in its own courts. See Cohens v. Virginia, 6 Wheat. 264 (1821); United States v. Clarke, 8 Pet 436 (1834); Stanley v. Schwalby, 162 U.S. 255, 270 (1896); Larson v. Domestic and Foreign Corp., 337 U.S. 682, 703–705 (1949).

the purview of section 7 shall be paid out of any appropriation or insurance fund or other fund especially available therefor.

Section 7 was characterized in Blamberg, supra, p. 459, as follows:

“*** Congress had no power *** to enact immunity from seizure in respect of such vessels when in foreign ports, and therefore the embarrassment of seizures was to be mitigated in another way, i.e., by claiming immunity on international grounds and, if that failed, by stipulation or bond in the name of the United States." 5

4

It is said that pursuant to the Suits in Admiralty Act it has been the established policy of the executive department not to claim immunity for the United States with respect to suits in foreign courts arising out of the operation of merchant vessels owned by it. Reference is made to the letter of the Acting Legal Adviser of the Department of State to the Acting Attorney General of May 19, 1952, supra, in the course of which it was said that the United States "some years ago

4 The classic American expression of the grounds upon which the doctrine is based is that of Chief Justice Marshall in The Schooner Exchange v. McFaddon, 7 Cranch 116, 136-137, 143-144 (1812). In the words of Mr. Justice Frankfurter: "As expounded in The Schooner Exchange, the doctrine is one of implied consent by the territorial sovereign to exempt the foreign sovereign from its 'exclusive and absolute' jurisdiction, the implication deriving from standards of public morality, fair dealing, reciprocal self-interest, and respect for the 'power and dignity' of the foreign sovereign." National City Bank of New York v. Republic of China, 348 U.S. 356, 362 (1955). The British doctrine has been stated as follows: "The British courts, on the ground of international comity or courtesy, and on no other ground, decline to exercise jurisdiction against a foreign Sovereign or independent State, unless the Sovereign or State voluntarily submits to the jurisdiction." Dunlop, Immunity of State Ships, 6 Journ. Comp. Leg. & Int. Law (3d Series) 272, 275 (1924). This rule has been held applicable to publicly operated vessels, although engaged in merchant trade. See The Parlement Belge, (1880) 5 P.D. 197; and see The Cristina, [1938] A.C. 485.

"It should be noted that section 7 is not phrased in the alternative as suggested by the above language. It authorizes a claim of immunity and the filing of a stipulation or bond. As stated by the Government in its brief in Blamberg (Oct. term 1922, No. 165, p. 9): 66* * * Congress *** by section 7 has provided the necessary authority for defending actions abroad, if the vessels there are subject to arrest and detention."

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announced and has since followed, a policy of not claiming immunity [in foreign jurisdictions] for its public owned or operated merchant vessels." See 26 Dept. of State Bull. 984, 985 (1952).

In 1923, the Department of State instructed American diplomatic officers to address a communication to the Foreign Office of the country to which each was accredited in the following sense:

"The United States will not claim that ships operated by or on behalf of the United States Shipping Board, when engaged in commercial pursuits, are entitled to immunity from arrest or to other special advantages which are generally accorded to public vessels of a foreign nation. Such ships when so operated will be permitted to be subject to the laws of foreign countries which apply under otherwise like conditions to privately owned merchant ships foreign to such countries.

"The United States will, however, when occasion arises, continue to ask that foreign courts and tribunals and other government departments and agencies recognize the application of Section 7 of the Suits in Admiralty Act, approved March 9, 1920 (41 Stat. at L. 525). ***" (Diplomatic Serial No. 178, March 5, 1923, quoted in Harvard Research in International Law, 26 Am. J. Int. L. Supp. 571 (1932)). On April 18, 1923, the British Embassy inquired of the Department of State as to whether the following interpretation of section 7 was correct:

"If a suit is brought in the courts of a foreign country against a merchant vessel owned or operated by the United States Government, bail or its equivalent will be given on behalf of the United States Government and, if judgment is rendered against the vessel, payment will be made." According to Hackworth's Digest of International Law, Vol. II, pp. 440-441 (1941), the Department replied that this statement was correct as to the practice ordinarily followed, but pointed out that the statute merely authorized, without requiring, such practice. It was stated that in cases where it was deemed undesirable to furnish bail or its equivalent, it was expected that the vessel would be disposed of according to the usual practice in the country where the seizure took place. The reply concluded that when United States Shipping Board

vessels "are seized or threatened with seizure in Admiralty proceedings abroad it has been the practice, particularly in Great Britain, to effect their release by the giving of a stipulation by the foreign representative of the Shipping Board. I am informed that judgments rendered in these cases are paid in the same manner as judgments in cases where the procedure provided in Section 7 of the Suits in Admiralty Act has been followed."

On November 25, 1930, the Department of State advised American diplomatic and consular officers that there had been no change in "the general policy of the Department of refraining from claims of immunity in the courts of foreign countries for vessels owned by the United States Shipping Board, and consular officers should not endeavor to obtain immunity for Shipping Board vessels unless specific instructions are received from the Department authorizing such action in a particular case" (Diplomatic Serial No. 1017, quoted in Harvard Research in International Law, supra).

As I understand it, the practice that has been actually followed pursuant to section 7 of the Suits in Admiralty Act is to submit the United States to suits in personam upon the filing of a bond or stipulation. The result is that the vessel itself is immune from arrest or seizure and the United States consents to suit in personam in the foreign court. As one writer expresses it, "[t]hus while we object to the tying up of the vessel we do accept personal liability in such instances ***. It [the United States] recognizes the binding force of noblesse oblige in its acceptance of liability in admiralty for the ships it operates, or are operated in its behalf by corporations of which it owns the stock." Robinson on Admiralty, p. 274 (1939).

In my opinion, an international commitment to consent to suit against the United States in personam with respect to damage claims asserted in a foreign court resulting from a nuclear incident arising out of the operation of the Savannah outside of the United States would not be inconsistent with the Suits in Admiralty Act provided that the commitment does not go beyond the authority conferred by section 7 of the act. In this connection it should be noted that any action taken by the Secretary of State pursuant to section 7 is dependent upon the request of the Attorney General. In view