The Historical Development of the Jurisdictional Immunity of Public Ships

点击翻译按钮获取中文摘要

The present research has examined the historical development of jurisdictional immunity of State-owned ships. As to warships, a principle has firmly maintained since the classical decision of the Schooner Exchange v.McFaddon in 1812(11U.S.(7 Cranch) 116) that a warship benefits the absolute immunity from the jurisdiction of any State other than the flag State. The principle has, up to date, never questioned by any national or international court. This principle used to be equally applied, in former times, to State-owned vessels other than warships, including those used for the purpose of ordinary trade. As the commercial activities of governments by using their vessels largely developed after the First World War, a serious question arose whether the jurisdictional immunity should still be extended to such government ships, which were engaged in commerce. The purpose of the immunity of State-owned vessels was, originally, to safeguard the equality and dignity of a foreign State, and not to put it into an economic advantage in a competition with private shipowners. Thus, after the Second World War there is a wide-spread tendency both in the decisions of courts and in the views of international lawyers to deny immunity to State-owned or operated ships when the ships are engaged in ordinary trade. It is submitted that the development of the immunity of public ships has exerted a considerable impact upon that of the general principle of sovereign immunity under international law : the latter's main trend also moved from the classical or absolute theory to the newer or restrictive one after the Second World War.