The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), is a United States Supreme Court case on the jurisdiction of federal courts over a claim against a friendly foreign military vessel visiting an American port. The court interpreted customary international law to determine that there was no jurisdiction.

Background The schooner Exchange, owned by John McFaddon and William Greetham, sailed from Baltimore, Maryland, on October 27, 1809, for San Sebastián, Spain. On December 30, 1810, the Exchange was seized by order of Napoleon Bonaparte. The Exchange was then armed and commissioned as a French warship, under the name of Balaou. When the vessel later docked in Philadelphia because of storm damage, McFaddon and Greetham filed an action in the United States Court for the District of Pennsylvania to seize the vessel, claiming that it had been taken illegally. The district court found that it did not have jurisdiction over the dispute. On appeal, the Circuit Court for the District of Pennsylvania reversed the decision of the district court and ordered the district court to proceed to the merits of the case.McFadden v. The Exchange, 16 F. Cas. 85, 88 (C.C.D. Pa. 1811) rev'd sum nom. The Schooner Exchange v. McFaddon, 11 U.S. 116, 3 L. Ed. 287 (1812)

Decision The Supreme Court reversed the circuit court's decision and affirmed the district court's dismissal of the action.

Chief Justice Marshall delivered the opinion of the Supreme Court. He noted that by the definition of sovereignty, a state has absolute and exclusive jurisdiction within its own territory but it could also, by implied or express consent, waive jurisdiction.The Schooner Exchange v. McFaddon, 11 U.S. 116, 136 (1812) Moreover, Marshall also noted that, under customary international law, jurisdiction was presumed to be waived in a number of situations.

For instance, visiting foreign sovereigns and their diplomatic representatives were generally free from the jurisdiction of domestic courts.The Schooner Exchange v. McFaddon, 11 U.S. 116, 137 (1812) Similarly, a state granting permission for a foreign army free passage across its territory generally implied a waiver of jurisdiction over that army.The Schooner Exchange v. McFaddon, 11 U.S. 116, 139 (1812) That custom was established so firmly and necessarily for international relations that it would be wrongful for a country to violate it without prior notice."A nation would justly be considered as violating its faith, although that faith might not be 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." The Schooner Exchange v. McFaddon, 11 U.S. 116, 137 (1812)

Marshall further noted that while the right of free passage by an army usually had to be explicitly granted, by maritime custom a nation's ports were presumptively open to all friendly ships. While a nation could close its ports to the warships of another country, it would have to issue some form of declaration to do so. Without such a declaration, a friendly foreign warship could enter a nation's port with its implied consent.The Schooner Exchange v. McFaddon, 11 U.S. 116, 141 (1812) Marshall further distinguished between private merchant ships and citizens, who are subject to a nation's jurisdiction when they enter its ports with the nation's implied consent, and military ships. Namely, private ships do not carry with them the sovereign status of military ships and the privileges that accompany it.The Schooner Exchange v. McFaddon, 11 U.S. 116, 144–45 (1812)

Therefore, Marshall concluded that "a principle of public [international] law [is] 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."The Schooner Exchange v. McFaddon, 11 U.S. 116, 145-46 (1812)

Applying that analysis to the facts at hand, Marshall found that the courts did not have jurisdiction over the case."... the Exchange, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country." The Schooner Exchange v. McFaddon, 11 U.S. 116, 146 (1812)

Significance The decision is regarded as the "first definitive statement of the doctrine of foreign state immunity."Caplan, Lee M. State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory, 97 Am. J. Int'l L. 741, 745 (2003)Ved P. Nanda, David K. Pansius. Litigation of International Disputes in U.S. Courts, §3.2 "Origin of Immunity," 2012. Also, the unwillingness of the Court to find jurisdiction without action by the political branches of government, along with some explicit dicta,"...the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, [] they are for diplomatic, rather than legal discussion". The Schooner Exch. v. McFaddon, 11 U.S. 116, 146 (1812) led to a tradition of great deference by the courts to official and individual determinations of immunity by the US State Department.25 A.L.R.3d 322 (Originally published 1969) That system was not revised in favor of judicial interpretations until the passage of the Foreign Sovereign Immunities Act in 1976.

See also List of United States Supreme Court cases, volume 11

References

Sources

External links Text of Case Report