Ervin v. Quintanilla

• Decision Date: 18 November 1938
• Docket Number: No. 8890.,8890.
• Citation: 99 F.2d 935
• Parties: ERVIN v. QUINTANILLA et al.
• Court: U.S. Court of Appeals — Fifth Circuit

99 F.2d 935 (1938)

ERVIN v. QUINTANILLA et al.

No. 8890.

Circuit Court of Appeals, Fifth Circuit.

November 18, 1938.

Palmer Pillans, of Mobile, Ala., and Frederick H. Wood, of New York City, for appellant.

Gessner T. McCorvey, of Mobile, Ala., and Manuel C. Gonzales, of San Antonio, Tex., for appellees.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, as libellant in a cause petitory and of possession, civil and maritime, having procured process of seizure against, and caused to be seized, a steam vessel of Mexican registry, the San Ricardo, then in the port of Mobile, Alabama, set on foot proceedings to take the depositions of her crew. The United States of Mexico, expressly declining to submit itself to the jurisdiction of the court, appeared specially to suggest to the court; that it was making representations through diplomatic channels to the Government of the United States of America that the San Ricardo was a public vessel, in the possession and service of the United States of Mexico; and that it was requesting the United States to make, through the Attorney General, an appropriate suggestion of immunity from suit, and that the proposed taking of testimony be delayed pending the result of these representations.

The Court, declining to comply with the suggestion for delay in the taking of the testimony, the appellee, "reserving all of his favors, privileges, immunities and exceptions, and in no manner submitting himself or the Republic of Mexico to the jurisdiction of this honorable court", made a special appearance for the purpose of suggesting, and wherein he suggested, to the court that "at the time of the filing of the libel and the seizure of the San Ricardo she was a Mexican vessel flying the flag, and documented under the laws of, the Republic of Mexico, and in the possession of said Republic of Mexico as a public vessel, under and by virtue of a decree of expropriation of March 18, 1938, and acts of possession taken by the Mexican Consul on March 23, 1938 for and on behalf of the Republic of Mexico;" that the said vessel being a public vessel of a friendly government and in its possession is immune from seizure and from the exercise of jurisdiction over it by this Court; and that in recognition of the immunity and of its want of jurisdiction the Court should vacate the seizure, dismiss the libel and release the vessel.

Appellant by motion and exceptions sought to strike the immunity suggestion on the ground that if immunity had ever existed, it had been waived by what in effect was a general appearance of the Republic of Mexico in (a) suggesting a stay of the taking of depositions; (b) putting in issue by its suggestion, not merely the possession, but the right and title of the Republic of Mexico, and (c) praying not alone for the dismissal of the res from, but a dismissal of the libel as well.

On practically undisputed evidence the District Judge found the facts as follows: (1) That the steamship San Ricardo on March 5, 1938, complying with orders from the vessel's owner, the Compania Naviera, sailed from Tampico, Mexico, to the port of Mobile, Alabama, for the purpose of repairs, where it arrived on the 9th, and was delivered to the Alabama Drydock and Shipbuilding Company. (2) On March 18, 1938, Lazaro Cardenas, President of Mexico, issued a decree, providing "There are hereby declared as expropriated * * * vessels of all kinds * * * Compania Naviera San Ricardo, S. A. * * * insofar as the same may be necessary, in the judgment of the office of the Secretary of Economia Nacional for the discovery, securing, transportation, storage, refining and distribution of the products of the petroleum industry." (3) This decree was published and became effective on March 20th and the Secretary of State at once sent written orders and instructions by air mail to the Consul of Mexico stationed at New Orleans, authorizing and directing him to proceed at once to Mobile and take physical possession of the San Ricardo in the name of that government, and to do all things necessary to accomplish such possession; that is to say, to give notice to the officers and men of the vessel; that the ship had been taken over by the Republic of Mexico; that it was no longer under the control of the Compania Naviera; to make arrangements to employ the officers and men then in charge, if they were willing to accept service under the Republic, otherwise to employ others; and to enter into such contracts as may be necessary for the making of needed repairs to the vessel. (4) The Consul proceeded to Mobile and took possession in accordance with his instructions. He received the allegiance of the Master and men, paid the wages, arranged for the making of repairs, and peaceably, but fully and completely, and in every way possible, took possession of the vessel for the Republic of Mexico. He did this by his own acts and through the Master and crew, who willingly came over, expressing their willingness to serve and serving the Republic on the vessel. (5) The Alabama Drydock Company on its part, accepted the vessel and made repairs on it as in the possession and control of the Mexican government. (6) The Master advised the manager of the Company of the taking over, and of his attornment to the Republic of Mexico as in possession and control of the vessel, and that the relations between him and the company were at an end. The Consul paid in full the salaries of the officers and the wages of the men from March 19 to March 31, and furnished the necessary funds to the captain for the purchase of provisions and supplies. (7) When she came into port the San Ricardo was not in the possession of the Mexican government, but in that of the Compania Naviera, a Mexican corporation, and remained in that possession from March 9, to March 23, 1938. On March 23 the vessel was taken into the possession of the Mexican government and was in that possession and control on April 2, 1938, the date of her seizure by the United States Marshal, being repaired by or at the expense of the Mexican government to be used for public purposes by that government.

Upon these facts he concluded (1) that the claim of immunity had not been waived, but had been properly presented and pressed; (2) that it had been completely maintained, by the undisputed proof that the steamship San Ricardo at the time it was seized under process issued out of the court was a public vessel in the service of, and in the actual possession of the Republic of Mexico, a friendly sovereign power, and immune from seizure under process of the court. He declined to consider questions of title to the vessel as between the company and the Mexican government, as not a matter for the consideration of the court, since the United States being at peace with Mexico, that government has the right to claim immunity from and against seizure of its vessels in American territorial waters.

So concluding, he sustained the claim of immunity and dismissed the libel for want of jurisdiction.

Here appellant makes two points against the order and decree; (1) that the claimed immunity was waived; (2) that it was not sustained.

On the point of waiver appellant urges that though claiming to make a special appearance limited to the suggestion of immunity, the Republic of Mexico in fact made a general appearance, thus waiving the right it had to claim immunity, by (a) asking affirmative relief in the action, that is, that the taking of depositions be postponed; (b) by appearing and asking affirmative relief for a defendant, the Master of the ship against whom the action runs in personam; (c) by tendering along with the suggestion of immunity an issue going to the merits, towit, an issue as to the title and ownership of the vessel; and (d) by praying that the libel be dismissed.

On the point that immunity was not established appellant insists that there was a failure of proof that the vessel was a public vessel and in the possession of the Republic of Mexico for public use at the time the action was commenced.

We of course agree with appellant that a sovereign may waive his claim of immunity and subject himself to a jurisdiction which, but for his submission, he would be immune from. He may do this by a general appearance, or by acts or conduct inconsistent with the claim of a special appearance made for the purpose, alone, of raising the jurisdictional question. Cases of that kind are The Sao Vicente, 3 Cir., 295 F. 829; Dexter & Carpenter v. Kunglig, 2 Cir., 43 F.2d 705. But we agree with appellees that the appearance and proceedings on the part of the Republic of Mexico below were conducted throughout with the specific intent for the specific purpose, and with the result alone of presenting a claim of immunity from the jurisdiction of the court. We agree with them that nothing that it or its representatives did was in any manner inconsistent with this intent and purpose, or could be reasonably construed as or tortured into a general appearance, or an invocation of the jurisdiction of the court. We agree that the District Judge was right in holding that the immunity was properly claimed, and the claim was not waived.

Courts have rightly refused to permit persons or sovereigns not subject without their consent to the jurisdiction of the court, to come in and out of a court at will. They have thus uniformly held that where jurisdiction has been invoked or has been submitted to by a general appearance, there can be no later assertion of immunity and withdrawal. Porto Rico v. Ramos, 232 U. S. 627, 34 S.Ct. 461, 58 L.Ed. 763; Kingdom of Roumania v. Guaranty Trust, 2 Cir., 250 F. 341, Ann.Cas.1918E, 524 and cases cited. They have also held that whether there has been a general appearance or submission to the jurisdiction is to be determined by the nature of the acts done and the intent with which they were done, giving effect in this determination, of course, to...