Ex parte Republic of Peru. the Ucayali. riginal

• Decision Date: 05 April 1943
• Docket Number: No. 13,O,13
• Parties: Ex parte REPUBLIC OF PERU. THE UCAYALI. riginal
• Court: U.S. Supreme Court

318 U.S. 578

63 S.Ct. 793

87 L.Ed. 1014

Ex parte REPUBLIC OF PERU. THE UCAYALI.

No. 13, Original.

Argued March 1, 1943.

Decided April 5, 1943.

Mr. Edgar R. Kraetzer, of New York City, for petitioner.

Mr. Joseph M. Rault, of New Orleans, La., for respondent.

Mr. Chief Justice STONE delivered the opinion of the Court.

This is a motion for leave to file in this Court the petition of the Republic of Peru for a writ of prohibition or of mandamus. The petition asks this Court to prohibit respondent, a judge of the District Court for the Eastern District of Louisiana, and the other judges and officers of that court, from further exercise of jurisdiction over a proceeding in rem, pending in that court against petitioner's steamship Ucayali, and to direct the district judge to enter an order in the proceeding declaring the vessel immune from suit. The questions for decision here are whether this Court has jurisdiction to issue the writ, whether such jurisdiction should in our discretion be exercised in petitioner's behalf, and whether petitioner's appearance and defense of the suit in the district court was, as that court has ruled, a waiver of its claim that the vessel, being that of a friendly sovereign state, is im- mune from suit brought by a private party in the court of the United States.

On March 30, 1942, Galban Lobo Co., S.A., a Cuban corporation, filed a libel in the district court against the Ucayali for its failure to carry a cargo of sugar from a Peruvian port to New York, as required by the terms of a charter party entered into by libelant with a Peruvian corporation acting as agent in behalf of the Peruvian Government. On April 9, 1942, the Republic of Peru, acting by the master of the vessel, intervened in the district court by filing a claim to the vessel, averring that the Republic of Peru was sole owner, and stating: 'The filing of this claim is not a general appearance and is without prejudice to or waiver of all defenses and objections which may be available to respondent and claimant, particularly, but not exclusively, sovereign immunity'.

On the same day petitioner procured the release of the vessel by filing a surety release bond in the sum of $60,000, on which petitioner was principal. The bond, which contained a reservation identical with that appearing in petitioner's claim to the vessel, was conditioned upon payment of any amount awarded to libelant by the final decree in the cause. On April 11th petitioner proceeded in the cause to take the testimony of the master on the merits, and spread on the record a statement that the testimony was taken with like 'full reservation and without waiver of all defenses and objections which may be available to respondent claimant, particularly, but not exclusively, sovereign immunity'. Petitioner also stated that 'the appearance of counsel for the Government of Peru and the Steamship Ucayali is for the special purpose only of taking the testimony of the master under the reservation aforesaid'.

On April 18th, and again on May 10th and on May 29th, petitioner moved for and obtained an order of the district court extending its time within which to answer or otherwise plead to the libel. Each motion was made 'with full reservation and without waiver of any defenses and objections which may be available to mover, particularly, but not exclusively, sovereign immunity'.

In the meantime petitioner, following the accepted course of procedure (see Ex parte Muir, 254 U.S. 522, 41 S.Ct. 185, 65 L.Ed. 383; The Navemar, 303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667), by appropriate representations, sought recognition by the State Department of petitioner's claim of immunity, and asked that the Department advise the Attorney General of the claim of immunity and that the Attorney General instruct the United States Attorney for the Eastern District of Louisiana to file in the district court the appropriate suggestion of immunity of the vessel from suit. These negotiations resulted in formal recognition by the State Department of the claim of immunity. This was communicated to the Attorney General by the Under Secretary's letter of May 5, 1942. The letter requested him to instruct the United States Attorney to present to the district court a copy of the Ambassador's formal claim of immunity filed with the State Department, and to say that 'this Department accepts as true the statements of the Ambassador concerning the steamship Ucayali, and recognizes and allows the claim of immunity'.

Pursuant to these instructions the United States Attorney, on June 29th, filed in the district court a formal statement advising the court of the proceedings and communications mentioned, suggesting to the court and praying 'that the claim of immunity made on behalf of the said Peruvian Steamship Ucayali and recognized and allowed by the State Department be given full force and effect by this court'; and 'that the said vessel proceeded against herein be declared immune from the jurisdiction and process of this court'. On July 1st petitioner moved for release of the vessel and that the suit be dismissed. The district court denied the motion on the ground that peti- tioner had waived its immunity by applying for extensions of time within which to answer, and by taking the deposition of the master steps which the district court thought constituted a general appearance despite petitioner's attempted reservation of its right to assert its immunity as a defense in the suit. The Ucayali, D.C., 47 F.Supp. 203.

The first question for our consideration is that of our jurisdiction. Section 13 of the Judiciary Act of 1789, 1 Stat. 81, conferred upon this Court 'power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States'. And § 14 provided that this Court and other federal courts 'shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law'. 1 Stat. 81. These provisions have in substance been carried over into §§ 234 and 262 of the Judicial Code, 28 U.S.C. §§ 342, 377, 28 U.S.C.A. §§ 342, 377, and § 751 of the Revised Statutes, 28 U.S.C. § 451, 28 U.S.C.A. § 451.

The jurisdiction of this Court as defined in Article III, § 2, of the Constitution is either 'original' or 'appellate'. Suits brought in the district courts of the United States, not of such character as to be within the original jurisdiction of this Court under the Constitution, are cognizable by it only in the exercise of its appellate jurisdiction. Hence its statutory authority to issue writs of prohibition or mandamus to district courts can be constitutionally exercised only insofar as such writs are in aid of its appellate jurisdiction. Marbury v. Madison, 1 Cranch 137, 173, 180, 2 L.Ed. 60; Ex parte Siebold, 100 U.S. 371, 374, 375, 25 L.Ed. 717.

Under the statutory provisions, the jurisdiction of this Court to issue common law writs in aid of its appellate jurisdiction has been consistently sustained. The historic use of writs of prohibition and mandamus directed by an appellate to an inferior court has been to exert the revisory appellate power over the inferior court. The writs thus afford an expeditious and effective means of confining the inferior court to a lawful exercise of its prescribed jurisdiction, or of compelling it to exercise its authority when it is its duty to do so. Such has been the office of the writs when directed by this Court to district courts, both before the Judiciary Act of 1925, 43 Stat. 936,¹ and since.² In all these cases (cited in notes 1 and 2), the appellate, not the original, jurisdiction of this Court was invoked and exercised.³

The common law writs, like equitable remedies, may be granted or withheld in the sound discretion of the Court, Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95, 96, 44 S.Ct. 446, 448, 68 L.Ed. 912; Ex parte City of Monterey, 269 U.S. 527, 46 S.Ct. 16, 70 L.Ed. 395; State of Maryland v. Soper (No. 1), 270 U.S. 9, 29, 46 S.Ct. 185, 189, 70 L.Ed. 449; United States v. Dern, 289 U.S. 352, 359, 53 S.Ct. 614, 617, 77 L.Ed. 1250, and are usually denied where other adequate remedy is available. Ex parte Baldwin, 291 U.S. 610, 54 S.Ct. 551, 78 L.Ed. 1020. And ever since the statute vested in the circuit courts of appeals appellate jurisdiction on direct appeal from the district courts, this Court, in the exercise of its discretion, has in appropriate circumstances declined to issue the writ to a district court, but without prejudice to an application to the circuit court of appeals (Ex parte Apex Mfg. Co., 274 U.S. 725, 47 S.Ct. 766, 71 L.Ed. 1342; Ex parte Daugherty, 282 U.S. 809, 51 S.Ct. 180, 75 L.Ed. 726; Ex parte Krentler-Arnold Hinge Last Co., 286 U.S. 533, 52 S.Ct. 621, 76 L.Ed. 1273), which likewise has power under § 262 of the Judicial Code to issue the writ. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762; Adams v. U.S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. —-.

After a full review of the traditional use of the common law writs by this Court, and in issuing a writ of mandamus, in aid of its appellate jurisdiction, to compel a district judge to issue a bench warrant in conformity to statutory requirements, this Court declared in Ex parte United States, 287 U.S. 241, 248, 249, 53 S.Ct. 129, 131, 77 L.Ed. 283: 'The rule deducible from the later decisions, and which we now affirm, is that this court has full power in its discretion to issue the writ of mandamus to a federal District Court, although the case be one in respect of which direct appellate jurisdiction is vested in the Circuit Court of Appeals—this court having...