"A nation would justly be considered as violating its faith, although that faith might not be *572 "This consent may, in some instances, be test-, be exerted in a manner not to be misunderstood, ed by common usage, and by common opinion, the sovereign cannot be considered as having growing out of that usage. imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions therefore which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him, a right to claim that property in the courts of the country, in which it is found, ought not, in the opinion of this court, to be so construed as to give them jurisdiction in a case, in which the sovereign power has impliedly consented to waive its jurisdiction." expressly plighted, *which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. "This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. "This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation." After discussing the status of a sovereign, his ministers and his troops when they or any of them enter the territory of another sovereign, he proceeded (page 141): "If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his ports to remain open to the public ships of foreign friendly powers, the conclusion seems irresistable, that they may enter by his assent. And if they enter by his assent necessarily implied, no just reason is perceived by the court for distinguishing their case from that of vessels which enter by express assent. "In all the cases of exemption which have been reviewed, much has been implied, but the *573 obligation of *what was implied has been found equal to the obligation of that which was expressed. Are these reasons for denying the application of this principle to ships of war?" And then, after suggesting that there is a wide difference between the status of private individuals who enter foreign territory, or send their private ships there for purposes of trade, and the status of public war vessels when in foreign waters, he further said (page 145): "It seems then to the court to be a principle of public law that national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction. "Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power It will be perceived that the opinion, although dealing comprehensively with the general subject, contains no reference to merchant ships owned and operated by a government. But the omission is not of special significance, for in 1812, when the decision was given, merchant ships were operated only by private owners, and there was little thought of governments engaging in such operations. That came much later. *574 *The decision in The Exchange therefore cannot be taken as excluding merchant ships held and used by a government from the principles there announced. On the contrary, if such ships come within those principles, they must be held to have the same immunity as war ships, in the absence of a treaty or statute of the United Stated evincing a different purpose. No such treaty or statute has been brought to our attention. We think the principles are applicable alike to all ships held and used by a government for a public purpose, and that when, for the purpose of advancing the trade of its people or providing revenue for its treasury, a government acquires, mans, and operates ships in the carrying trade, they are public ships in the same sense that war ships are. We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace as any less a public purpose than the maintenance and training of a naval force. The subsequent course of decision in other courts gives strong support to our conclusion. In Briggs v. Light Boats, 11 Allen (Mass.) 157, there was involved a proceeding against three vessels to subject them to a lien and to satisfy it through their seizure and sale. The boats had been recently acquired by the United States and were destined for use as floating lights to aid navigation. Whether their ownership and intended use rendered them immune from such a proceeding and seizure was the principal question. In answering it in the affirmative the state court, speaking through Mr. Justice Gray, afterwards a member of this court, said (page 163): "These vessels were not held by the United States, as property might perhaps be held by a monarch, in a private or personal, rather (46 S.Ct.) "The immunity from such interference arises, not because they are instruments of war, but because they are instruments of sovereignty, and does not depend on the extent or manner of their actual use at any particular moment, but on the purpose to which they are devoted." In the Parlement Belge, L. R. 5 P. D. 197, the question was whether a vessel belonging to Belgium and used by that government in carrying the mail and in transporting passengers and freight for hire could be subjected to a libel in rem in the admiralty court of Great Britain. The Court of Appeal gave a negative answer and put its ruling on two grounds, one being that the vessel was public property of a foreign government in use for national purposes. After reviewing many cases bearing on the question, including The Exchange, the court said: | 367. The principal case announcing the other view is The Pesaro (D. C.) 277 F. 473. ent case, but it is not the one now under reThat was a preliminary decision in the pres view, which came later and was the other way. We conclude that the general words of section 24, cl. 3, of the Judicial Code (Comp. St. § 991), investing the District Courts with jurisdiction of "all civil causes of admiralty and maritime jurisdiction," must be construed, in keeping with the last paragraph before quoted from The Exchange, as not intended to include a libel in rem against a public ship, such as the Pesaro, of a friendly foreign government. It results from this that the court below rightly dismissed the libel for want of jurisdiction. Decree affirmed. 1926.) No. 718. necessary party to suit alleging conspiracy of Secretary of War and Chief of Engineers to take from plaintiff boats leased to him by direction of Secretary of War, acting for United States. "The principle to be deduced from all these cases is that, as a consequence of the absolute. United States 135-United States is not independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, each and every one declines to exercise by means 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." Sometimes it is said of that decision that it was put on the ground that a libel in rem under the British admiralty practice is not a proceeding solely against property, but one directly or indirectly impleading the owner-in that instance the Belgian government. But this latter was given as an additional and independent ground, as is expressly stated in the opinion at page 217. *576 *The ruling in that case has been consistently followed and applied in England from 1880, when it was made, to the present day. Young v. The Scotia, [1903] A. C. 501; The Jassy, L. R. [1906] P. D. 270; The Gagara, L. R. [1919] P. D. 95; The Porto Alexandre, L. R. [1920] P. D. 30; The Jupiter, L. R. [1924] P. D. 236. In the lower federal courts there has been some diversity of opinion on the question, but the prevailing view has been that merchant ships owned and operated by a foreign government have the same immunity that war ships have. Among the cases so holding is The Maipo (D. C.) 252 F. 627, and 259 F. The United States is not a necessary party to a suit alleging conspiracy of Secretary of War and Chief of Engineers to take away from plaintiff boats leased to him by direction of Secretary of War, acting for the United States. 2. United States 78. Illegal acts of United States agents are personal, and derive no official justification from their doing them in asserted agency for the government. 3. United States 72-Lease of towboats and barges by United States, with provision for cancellation on noncompliance with terms of lease, in judgment of lessor, was properly terminated by decision of Secretary of War and Chief of Engineers, communicated to lessee under such provisions. Under lease by United States of towboats and barges, reserving right in government to Cancel lease on noncompliance, in judgment of lessor, with any of terms or conditions thereof, the lease was properly terminated by decision of Secretary of War and Chief of Engineers, communicated to lessee in accordance with such provisions. 4. Contracts 250. Provision for termination of contract when, in judgment of the contracting party for whom services are to be performed, there is noncompliance with contract terms, is valid, unless there is absence of good faith in exercise of judgment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Appeal and error 1179- Even though coal, and other commodities at rates not in seizure by United States officer of boats to excess of the prevailing rail tariffs, and at which United States was entitled was with- not less than the prevailing rail tariffs without process and wrong, property will be re-out the consent of the Secretary of War. The stored to United States, where issue was lessee was to pay all operating expenses of treated as if on final hearing, although be- the fleet, and to maintain during the term ing on appeal from temporary injunction. Where, under lease of towboats and barges, United States was entitled to possession, even though seizure by United States officer without process was wrong, court of equity will not re-fleet was to be for the benefit of the United quire property to be restored to lessee, with later redelivery to lessor, since the issue was fully treated as if on final hearing, although being on appeal from temporary injunction. Mr. Justice McReynolds dissenting. each towboat and barge of the fleet in goɔà operating condition, to the satisfaction of the lessor. The salvage earned by any of the On Writ of Certiorari to the United States Circuit Court of Appeals of the Eighth Cir cuit. Suit by Edward F. Goltra against John W. Weeks, Secretary of War, and others. An order granting a temporary mandatory injunctive order against defendants was reversed in the Circuit Court of Appeals (7 F. [2d] 838), and complainant brings certiorari. Reversal by Circuit Court of Appeals affirmed, and cause remanded to District Court. *537 *Messrs. Joseph T. Davis and Douglas W. Robert, both of St. Louis, Mo., for petitioner. Mr. Lon O. Hocker, of St. Louis, Mo., for respondents. *538 States, after deducting expeuses. The net earnings above operating expenses and г.aintenance for each ton of cargo were to be turned over by the lessee to the Secretary of War every 90 days, for deposit to his credit in the Treasury, until the net earnings equaled the full amount of the cost of the several vessels, plus interest on the cost of 4 per cent. per *540 annum, and then for deposit in St. Louis banks, to be held for the fulfillment of the terms of the lease. The lessee was to keep accurate detailed accounts of all tonnage moved, and all moneys received, and his operating expenses, subject to the inspection of the lessor or his representatives, and the overhead expenses were to be subject to the approval of the lessor, and any items objected to were to be referred to the Secretary of War, whose decision was to be final. Within three months prior to the expiration of the lease, or of any period of renewal, or sooner, if so desired by the lessee, a board was to appraise the value of the fleet, and the lessee was given the op *Mr. Chief Justice TAFT delivered the tion of purchasing the fleet by the fund from opinion of the Court.1 This was a suit in equity brought in the United States District Court for the Eastern District of Missouri, and reaches here from *539 It the Circuit Court of Appeals for the *Eighth Circuit by certiorari. The general purpose of the bill filed by Edward F. Goltra, petitioner here, was to enjoin the seizure of a fleet of towboats and barges on the Mississippi river which had been held by him as lessee. charged that the Secretary of War, the Chief of Engineers, and Col. T. Q. Ashburn, Chief Inland and Coastwise Waterways Service, were engaged in a conspiracy unlawfully to deprive him of the boats. He sought to enjoin the threatened seizure of them and to have those of them which had already been taken restored to his possession. The lease to Goltra was made May 28, 1919, by Gen. Black, Chief of Engineers, as the lessor, by direction of the Secretary of War, the net earnings and by 15 promissory notes running for 15 years, the title of the property to remain in the United States until the payment of the whole of the purchase price of the property. Section 8 of the lease, the important provision in this case, reads as follows: "The lessor reserves the right to inspect the plant, fleet, and work at any time to see that all the said terms and conditions of this lease are fulfilled, and that the crews and other employees are promptly paid, monthly or oftener; and noncompliance, in his judgment, with any of the terms or conditions, will justify his terminating the lease and returning the plant and said barges and towboats to the lessor, and all moneys in the Treasury or in bank to the credit of the Secretary of War shall be deemed rentals earned by and due to the lessor for the use of said vessels." There was a supplemental agreement in 1921, approved by the Secretary of War, made by Lansing H. Beach, the Chief of En acting for the United States. It leased 19 barges, nearing completion, and 3 or 4 tow-gineers, who had then succeeded Chief of Enboats, not yet constructed, for a term of five years from the date the first towboat or barge was delivered to the lessee. The lessee cov enanted to operate as a common carrier the whole fleet on the Mississippi river and its tributaries for the period of the lease and of any renewals thereof, transporting iron ore, Mr. Justice Holmes announced the opinion, the Chief Justice being absent. gineers Black. This made provision for the construction of additional facilities for the use of the fleet and brought them within the terms of the original contract. *541 The bill set out that there was delay in the construction and delivery of the fleet, and that both parties after *the war found difficulty in performing their undertakings; that, after the making of the lease, the plaintiff (46 S.Ct.) had secured a good many contracts for the on until March, 1922, to make those rates. shipment of commodities of different kinds-In March, 1922, the Secretary of War notified of oil from New Orleans to Illinois, coal from him that he could not approve any operation Kentucky to St. Louis and Manganese from on the lower Mississippi entering into compeNew Orleans to St. Louis; that the rate tition with the government Mississippi Warwhich he arranged for was 80 per cent. of rior line, and that he could not approve an the prevailing rail rate; that, when he ap- 80 per cent. rate there. In April, 1922, Golplied to the Secretary of War, he could not tra objected to the limitation, saying that he obtain permission to transport some of his had obligated himself to transport coal from commodities at a proper rate; that condi- Kentucky and manganese and oil from New tions were imposed requiring the consent of Orleans at this rate. Thereupon the Secretaofficers in charge of the Mississippi Warrior, ry of War advised him that the rate on the another enterprise of the government, to Gol-lower Mississippi must be raised from 80 per tra's rate, and that by reason thereof it was cent. to 100 per cent. of the rail tariffs for the impossible for him to operate as a common future, thus allowing him to complete the carrier; that by the acts of the Secretary of contracts of transportation already entered War the plaintiff was wrongfully prevented into, of which he had written. By letter of by the lessor from carrying out the terms and May 25, 1922, he was allowed a rate not less conditions of the contract; that John W. than 80 per cent. of the rail rates for many Weeks and T. Q. Ashburn, named as defend- different commodities. The Secretary asants, acting in combination, wrongfully un-sured him that if he decided to operate his dertook to declare the contracts terminated, and on March 3, 1923, demanded from the plaintiff the immediate possession of the boats without warrant of law, and wrongfully and unlawfully threatened to take them by force, caused some of the towboats and barges to be actually seized, and were threatening to take them all, and that unless restrained After a year, on March 13, 1923, the Secrewould do so; that the plaintiff had no ade-tary of War, in view of the little use he had quate remedy at law for the redress of the made of the fleet, sent the following notice to Goltra: wrongs complained of. He therefore asked a temporary restraining order to be granted immediately, and a restoration of the fleet to him, and a rule on the defendants to show cause why a temporary injunction should not issue. A rule to show cause was issued on March 25, 1923, on defendant. *543 boats on *the upper Mississippi he was authorized to carry all commodities at not less than 80 per cent., and that the officers of the Warrior Service had been instructed to co-operate with him to the fullest extent in making his fleet a success. "Pursuant to the right reserved in paragraph 8 of the contract dated May 28, 1919, and the supplement thereto dated May 26, 1921, between you and the United States, for the operation as a common carrier of a fleet of 4 towboats and 19 barges, and the erection of unin my judgment you have not complied with loading facilities, you are hereby notified that the terms and conditions of said contract, in that you have failed to operate the said towboats and barges as a common carrier, and in other particulars. It appeared that the whole fleet had been taken over by Col. Ashburn under an order of the Secretary of War. The taking over was on Sunday, and there was a purpose on *542 the part of Col. Ashburn, anticipating an *in- "I therefore declare the said contract and junction, to remove such of the fleet as was the supplement thereto terminated. You are in St. Louis across the river, to be out of the hereby directed, upon the receipt of this nojurisdiction of the Missouri District Court. tice, immediately to deliver possession of the All of the defendants filed returns to the said towboats and barges, and any unloading facilities erected pursuant to the supplemental rule, setting out defenses. A hearing was contract, and paid for by funds of the United had on the motion for a temporary injunc-States, to Col. T. Q. Ashburn, Chief Inland tion, evidence was taken, and the District Court found that the fleet had been improperly seized and should be restored to the plaintiffs and the defendants be enjoined from any attempt to resume possession until a final hearing of the case. and Coastwise Waterways Service, who will deliver this notice, and who is instructed and authorized to receive and receipt for the property herein mentioned." April 27, 1923, the Chief of Engineers sent a similar letter to Goltra. Goltra acknowlThe defendants then sought a writ of pro-edged receipt of the Secretary's letter, but hibition out of this court to prevent the fur-protested against the action. ther consideration of the cause by the Dis- The Circuit Court of Appeals reversed the trict Court. Ex parte United States, 263 U. S. 389, 44 S. Ct. 130, 68 L. Ed. 351. The leave to file a petition for prohibition was denied, on the ground that the remedy by appeal from the District Court was adequate. The evidence shows that in March, 1921, Goltra applied to have his rates as a common carrier fixed at 80 per cent. of the prevailing rail rates, and he was allowed from that time action of the District Court in restoring the fleet to Goltra and enjoining the defendants, and held that the motion to dismiss and to quash the temporary restraining order should have been granted, on the ground that the United States was a necessary party and could not be sued in such an action. *544 [1, 2] *We cannot agree with the Circuit Ed. 2041; Davis v. Gray, 16 Wall. 203 [21 L. "The complainant did not ask the court to 546 *It is sought to avoid the application of this to the present case by reference to the later case of Wells v. Roper, 246 U. S. 335 [38 S. Court of Appeals that the United States was, principle has frequently been applied with re- *545 as a ground *for dismissing the bill. The ruling is so comprehensive, and refers to so many authorities, and is so apt, that we quote the language at pages 619 and 620 (32 S. Ct. 344): "If the conduct of the defendant constitutes an unwarrantable interference with property of the complainant, its resort to equity for protection is not to be defeated upon the ground that the suit is one against the United States. The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of |