erally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

The petitioners insist that the construction and operation of a hospital is not one of the purposes prescribed by the Treaty, which, it is argued, are limited so far as "trade" and "commerce" are concerned to the purchase and sale or exchange of goods and commodities, and that, in any case, the Treaty does not confer upon Japanese subjects, resident in California, the privilege of forming a corporation under the laws of California or of leasing lands through a corporate agency for such a purpose.

The principles which should control the diplomatic relations of nations, and the good faith of treaties as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them. See Geofroy v. Riggs, supra; Tucker v. Alexandroff, 183 U. S. 424, 437; Wright v. Henkel, 190 U. S. 40, 57; In re Ross, 140 U. S. 453, 475. Upon like ground, where a treaty fairly admits of two constructions, one restricting the rights that may be claimed under it and the other enlarging them, the more liberal construction is to be preferred. Asakura v. Seattle, 265 U. S. 332; Tucker v. Alexandroff, supra; Geofroy v. Riggs, supra.

While in a narrow and restricted sense the terms "commerce," or "commercial," and "trade may be limited to the purchase and sale or exchange of goods and commodities, they may connote, as well, other occupations and other recognized forms of business enterprise which do not necessarily involve trading in merchandise. Asakura v. Seattle, supra. And although commerce includes traffic in this narrower sense, for more than a century it has been judicially recognized that in a broad sense it

Opinion of the Court.

278 U.S.

embraces every phase of commercial and business activity and intercourse. See Gibbons v. Ogden, 9 Wheat. 1, 189.

Considerations which led this Court to conclude that the terms "trade" and "commerce" as used in this Treaty do not include agriculture, and the circumstances attending the making of the Treaty which were deemed to exclude from the operation of its broad language any grant of the privilege of acquiring and using lands within the United States for agricultural purposes, were discussed in the opinions in Terrace v. Thompson, 263 U. S. 197, 223; Webb v. O'Brien, 263 U. S. 313, 323; Frick v. Webb, 263 U. S. 326, 333, and need not now be detailed. But in Asakura v. Seattle, supra, it was held that the language of this Treaty securing to Japanese citizens the privilege of carrying on trade within the United States was broad enough to comprehend all classes of business which might reasonably be embraced in the word trade, and included the privilege of carrying on the business of a pawnbroker. In Clarke v. Deckebach, 274 U. S. 392, 396, in considering the Treaty with Great Britain of July 3, 1815, 8 Stat. 228; August 6, 1827, 8 Stat. 361, granting reciprocal liberty of commerce between the United States and Great Britain, and in holding that the guarantee that

... the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce," did not extend to a British subject engaged in keeping a poolroom within the United States, we took occasion to point out that the language of the present Treaty with Japan was of broader scope than that then before the Court.

Giving to the terms of the Treaty, as we are required by accepted principles, a liberal rather than a narrower interpretation, we think, as the state court held, that the terms "trade" and "commerce," when used in conjunction with each other and with the grant of authority to lease land for "commercial purposes are to be given a

broader significance than that pressed upon us, and are sufficient to include the operation of a hospital as a business undertaking; that this is a commercial purpose for which the Treaty authorizes Japanese subjects to lease lands.

It is said that the elimination from the original draft of this clause of the Treaty of words authorizing the leasing of land for "industrial, manufacturing and other lawful" purposes (see Terrace v. Thompson, supra, p. 223) leads to the conclusion that land might not be leased for hospital purposes by Japanese subjects, even though under the other provisions of the Treaty they might be permitted to operate such an institution. But as the leasing of land for a hospital is obviously not for an industrial or manufacturing purpose, this argument presupposes that the phrase "commercial purposes" is limited to merchandising businesses, which for reasons already stated we deem inadmissible. Moreover, a construction which concedes the authority of Japanese subjects to operate a hospital but would deny to them an appropriate means of controlling so much of the earth's surface as is indispensable to its operation, does not comport with a reasonable, to say nothing of a liberal, construction. The Supreme Court of California has reached a like conclusion in State of California v. Tagami, 195 Cal. 522, holding that this Treaty secured to a Japanese subject the privilege of leasing land within the state for the purpose of using and occupying it for the maintenance of a health resort and sanitarium.

The contention that the Treaty does not permit the exercise of the privileges secured by it through a corporate agency requires no extended consideration. The employment of such an agency is incidental to the exercise of the granted privilege. But it is not an incident which enlarges the privilege by annexing to the permitted business another class of business otherwise excluded from the

grant, as would have been the case in Terrace v. Thompson, supra, had the business of farming been deemed an incident to the business of trading in farm products.

The principle of liberal construction of treaties would be nullified if a grant of enumerated privileges were held not to include the use of the usual methods and instrumentalities of their exercise. Especially would this be the case where the granted privileges relate to trade and commerce and the use of land for commercial purposes. It would be difficult to select any single agency of more universal use or more generally recognized as a usual and appropriate means of carrying on commerce and trade than the business corporation. And it would, we think, be a narrow interpretation indeed which, in the absence of restrictive language, would lead to the conclusion that the Treaty had secured to citizens of Japan the privilege of engaging in a particular business, but had denied to them the privilege of conducting that business in corporate form. But here any possibility of doubt would seem to be removed by the clause which confers on citizens and subjects of the High Contracting Parties the right"... to do anything generally incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

Affirmed.

PACIFIC STEAMSHIP COMPANY v. PETERSON.

CERTIORARI TO THE SUPREME COURT OF WASHINGTON. No. 49. Argued October 24, 1928.-Decided November 26, 1928. 1. Under § 20 of the Seamen's Act, as amended by § 33 of the Merchant Marine Act, which provides that any seaman who shall suffer personal injury in the course of his employment may, "at his election" maintain an action for damages at law, etc., an action to recover compensatory damages for an injury due to the

130

Argument for Petitioner.

negligence of another member of the crew may be maintained by the injured seaman against his employer although the seaman has demanded and received of the employer the maintenance, cure and wages accorded in such cases by the old admiralty rules. Pp. 134138.

2. The right to maintenance, cure and wages under the old admiralty rules is a contractual right, cumulative to and not inconsistent with, or an alternative of, the new right to recover compensatory damages for injuries caused by negligence. P. 136.

3. A general expression in an opinion concerning a particular aspect or effect of a statute, as to which no question was raised in the case, will not control judgment in a subsequent suit presenting the very point for decision, nor prevent the determination as an original question of the proper construction of the statute in that particular. P. 136.

145 Wash. 460, affirmed.

CERTIORARI, 276 U. S. 612, to a judgment of the Supreme Court of Washington affirming a recovery of damages by a seaman from the owner of his ship, in an action for personal injuries occasioned by the negligence of the ship's mate.

Mr. W. Carr Corrow, with whom Messrs. Benjamin S. Grosscup and J. O. Davies were on the brief, for petitioner.

On the construction of the Act, see Panama Ry. Co. v. Johnson, 264 U. S. 375; Engel v. Davenport, 271 U. S. 33; Baltimore S. S. Co. v. Phillips, 274 U. S. 316; Kuhlman v. Fletcher Co., 20 F. (2d) 465; Lorang v. Alaska S. S. Co., 298 Fed. 547; Wagstaff v. United States, 281 Fed. 877; Hughes v. Alaska S. S. Co., 287 Fed. 427; Rosinski v. Conners, 21 F. (2d) 591.

On what constitutes an election, see Robb v. Vos, 155 U. S. 13; 12 C. J. 336; The Santa Barbara, 263 Fed. 369; The Bouker, No. 2, 241 Fed. 831; The Balsa, 10 F. (2d) 408.

The construction placed upon this statute by the Supreme Court of Washington, which requires a ship-owner to pay full compensation under both the old rules and the new, would render the statute unconstitutional. Such a