Berizzi Bros Co v. the Pesaro

• Decision Date: 07 June 1926
• Docket Number: No. 334,334
• Parties: BERIZZI BROS. CO. v. THE PESARO
• Court: U.S. Supreme Court

271 U.S. 562

46 S.Ct. 611

70 L.Ed. 1088

BERIZZI BROS. CO.

v THE PESARO.

No. 334.

Argued May 7, 1926.

Decided June 7, 1926.

Mr. Oscar R. Houston, of New York City, for appellant.

[Argument of Counsel from pages 563-564 intentionally omitted] Mr. Homer L. Loomis, of New York City, for appellees.

[Argument of Counsel from pages 565-569 intentionally omitted] Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This was a libel in rem against the steamship Pesaro on a claim for damages arising out of a failure to deliver certain artificial silk accepted by her at a port in Italy for carriage to the port of New York. The usual process issued, on which the vessel was arrested, and subsequently she was released, a bond being given for her return, or the payment of the libelant's claim, if the court had jurisdiction and the claim was established. In the libel the vessel was described as a general ship engaged in the common carriage of merchandise for hire. The Italian ambassador to the United States appeared and on behalf of the Italian government specially set forth that the vessel at the time of her arrest was owned and possessed by that government, was operated by it in its service and interest, and therefore was immune from process of the courts of the United States. At the hearing it was stipulated that the vessel, when arrested, was owned, possessed, and controlled by the Italian government, was not connected with its naval or military forces, was employed in the carriage of merchandise for hire between Italian ports and ports in other countries including the port of New York, and was so employed in the service and interest of the whole Italian nation, as distinguished from any individual member thereof, private or official, and that the Italian government never had consented that the vessel be seized or proceeded against by judicial process. On the facts so appearing the court sustained the plea of immunity, and on that ground entered a decree dismissing the libel for want of jurisdiction. This direct appeal is from that decree and was taken before the Act of February 13, 1925 (43 Stat. 936), became effective.

The single question presented for decision by us is whether a ship owned and possessed by a foreign government, and operated by it in the carriage of merchandise for hire, is immune from arrest under process based on a libel in rem by a private suitor in a federal District Court exercising admiralty jurisdiction.

This precise question never has been considered by this court before. Several efforts to present it have been made in recent years, but always in circumstances which did not require its consideration. The nearest approach to it in this court's decisions is found in The Exchange, 7 Cranch, 116, 3 L. Ed. 287, where the opinion was delivered by Chief Justice Marshall. There a libel was brought by citizens of this country against an armed vessel in the possession of French naval officers; the libelants' claim being that they were the true owners, that the vessel had been wrongfully taken from them and then converted into an armed vessel, and the they were entitled to have it restored to them through a proceeding in admiralty. Diplomatic correspondence resulted in the presentation by a law officer of this government of a formal suggestion in the suit to the effect that at the time of the arrest under the libel the vessel was claimed and possessed by the French government as a warship, was temporarily within our waters for a lawful purpose, and therefore was immune from the process whereon she was arrested. In the opinion the Chief Justice attributed to every nation an exclusive and absolute jurisdiction within its own territory, subject to no limitation not having its consent, observed that the consent might be either express or implied, and then said (page 136):

'The word being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers.

'This consent may, in some instances, be tested by common usage, and by common opinion, growing out of that usage.

'A motion 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.

'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 statute 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...