Republic of Mexico v. Hoffman

Decision Date04 August 1944
Docket NumberNo. 10475.,10475.
Citation143 F.2d 854
PartiesREPUBLIC OF MEXICO et al. v. HOFFMAN. THE BAJA CALIFORNIA.
CourtU.S. Court of Appeals — Ninth Circuit

Ben Van Tress and James R. Jaffray, both of Los Angeles, Cal., for appellants.

Farnham P. Griffiths, of San Francisco, Cal., and Harold A. Black and McCutchen, Thomas, Matthew, Griffiths & Greene, all of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a final decree holding the Steamer Baja California, owned by the appellant Republic of Mexico, hereinafter called the Republic, liable and awarding damages for the sinking and total loss of the American Schooner Lottie Carson in the Harbor of Mazatlan, Mexico, by the Baja California, then towing the Mexican Steamer Campeche, causing her tow to collide with the Lottie Carson. The sole question on the appeal is the validity of an order of the district court denying the Republic's claim of the Baja California's immunity from the jurisdiction of that court.

The appellee Hoffman had libeled the Baja California, a monition in rem issued to the Marshal, who gave due notice by citation to all persons claiming her. It is conceded that the Republic's ownership and possession and her occupation in its service when the vessel was attached by the process in rem, would entitle it to withdraw her from the court's jurisdiction. Absent such ownership, possession and occupation, the jurisdiction continues and the Republic, if so advised, could contest the issues tendered by the libel. It is also conceded that the Baja California is liable for the injuries and the decree must be affirmed if it be held that the Republic was not entitled to withdraw the Baja California from the admitted existing jurisdiction of the district court or, if so entitled, had waived its right to such withdrawal.

On December 24, 1941, the Republic's claim to immunity from the court's jurisdiction was first asserted in a Suggestion of the Mexican Consul at Los Angeles, California, acting for the Ambassador for Mexico to the United States. The suggestion alleged that the Baja California was owned by the Mexican Government and in its possession and service at the time of her seizure. On January 28, 1942, appellee answered this Suggestion of the Republic made through its consul, joining issue on the claim of such ownership, possession and service.

On the day of the filing of the answer to the first Suggestion, the United States Attorney for the Southern District of California, under the direction of the Attorney General, "as a matter of comity between the United States Government and the Government of Mexico for such consideration as this Court may deem necessary and proper" filed a second Suggestion transmitting a Note of the Mexican Ambassador to our Secretary of State, but claiming no more than that the Baja California was owned by the Republic when she came into the jurisdiction of the district court. Since our government did not "recognize or allow" the second Suggestion of the Republic, but did no more than to present it, the jurisdiction of the district court continued for the determination of the issue joined on the first Suggestion.1

The district court, at a preliminary hearing, entertained the issue so raised. Evidence was adduced and the court gave its order and decree holding that it was "unable at this time to find * * * any requirement or ground ousting the jurisdiction of this court in this proceeding," and declined to allow the withdrawal of the vessel. The interlocutory character of the order of declination appears not only from the words "at this time" but from the court's further holding that "The foregoing order is in toto made and entered without prejudice to intervention and/or claim herein by the Republic of Mexico and/or the Ambassador to the United States for the Republic of Mexico and/or his accredited representative and agent, within twenty days from this date, for the purpose of asserting the Mexican Government's ownership and right to possession of the vessel in controversy, and any other applicable remedy or relief * * *."

The time to intervene and assert any or all the Republic's claims was extended to March 26, 1942. No default having been taken against the Republic, it was within its right to respond to the citation when, four days later, it filed its claim and answer to the libel, in which it again asserted its sovereign right to withdraw the vessel. In the absence of default, no error is or could be asserted as to the time of the filing of the repeated claim of immunity. However, it is claimed that the Republic's answer, though it "expressly reserves the right of sovereign immunity," is a general appearance which waives its right to withdraw the vessel from the court's jurisdiction.

We hold that the decision "without prejudice" and "at this time" holding adversely to the Suggestion of the right to withdraw the vessel, did not deprive the court of jurisdiction again to entertain it and that a sovereign in response to the citation in rem may assert all its rights in the res, at the same time including its reserved sovereign right to withdraw the vessel from the court's jurisdiction. In The Navemar, supra, 303 U.S. at page 76, 58 S.Ct. at page 435, 82 L.Ed. 667, the Supreme Court said of a similar suggestion by the Spanish Government:

"* * * But as the suggestion was tendered in support of an application to appear as a claimant in the suit, and as it put forth a claim to title and right to possession of the vessel, the Ambassador should have been permitted to intervene and, if so advised, to litigate its claims in the suit. In Ex parte Muir, supra, 254 U. S. 522, 41 S.Ct. 185, 65 L.Ed. 383 and in The Pesaro, supra, 255 U.S. 216, 219, 41 S.Ct. 308, 65 L.Ed. 592, the Ambassador of the intervening government challenged the jurisdiction of the court, but did not place himself or his government in the attitude of a suitor. Here the application as construed by the trial court was for permission to intervene as a claimant. We think the applicant should be permitted to occupy that position if so advised."

A different judge heard the case on the claim and answer of the Republic to appellee's libel. That judge found that "Claimant has set forth no additional evidence and has shown no extraordinary circumstances justifying this court in again passing upon the issue of sovereign immunity. If claimant was dissatisfied with the prior ruling of Judge McCormick, it could have had the issue finally determined on review by an appellate court."

Assuming, though not deciding, that an appeal could have been taken from Judge McCormick's order, deciding an issue raised as to but one of the "bundle of rights" constituting national ownership,2 we hold that the order may be reviewed on this appeal from the final decree.

It is agreed here that the title to the Baja California was in the Republic. The Republic contends that it had possession of the Baja California at the time the torts occurred and was operating her in a governmental service, bringing her within the decision of The Western Maid, 257 U.S. 419, 42 S.Ct. 159, 160, 66 L.Ed. 299. In that case The Western Maid, owned by the United States, was held immune. She was allocated by the government to the United States Shipping Board for service as a transport and was carrying foodstuffs for civilian relief in Europe to be administered under the United States Food Administration Grain Corporation. She was manned by a Navy crew. The Court said, "* * * that she was engaged in a public service that was one of the constituents of our activity in the war and its sequel and that had no more to do with ordinary merchandising than if she had carried a regiment of troops." Supporting its decision in The Western Maid, the Supreme Court cites with approval a New York circuit court case, The Fidelity, Fed.Cas.No. 4,758, in which that court stated, "Property does not necessarily become a part of the sovereignty because it is owned by the sovereign. To make it so, it must be devoted to the public use, and must be employed in carrying on the operations of the government." (Emphasis supplied.)

The appellee contends that the Republic has not brought the case within the Western Maid decision, because it was not operating the Baja California and she was not engaged in any public function or devoted to a public use. On the contrary, appellee contends, that by contract the Republic had delivered her over to a private Mexican corporation, the Compania Mexicana de Navegacion del Pacifico, S. de R. L., hereinafter called the Corporation, for the Corporation's possession and control in a private freighting venture, where it was seeking its profits exactly as does every other vessel in the Mexican Merchant Marine.

We agree with appellee's contention and the district court's finding that "At the time of the collision * * * and at the time of filing the libel and the service of the monition herein, she the Baja California was in the possession, operation and control of respondent Compania Mexicana de Navegacion del Pacifico, S. de R. L."

It was stipulated in writing and admitted in open court by proctors for the Republic that the Baja California was "delivered by the Mexican Government on August 27, 1941, to the Cia Mexicana de Navegacion del Pacifico, the Corporation made a respondent in personam in the libel," and that the Baja California was on and after October 3, 1941, "and at the time of seizure under process herein, being operated by the said Cia Mexicana de Navegacion del Pacifico under the terms and conditions of the contract designated said Republic's Exhibit `A'." The contract itself recites the fact that the Baja California was delivered by the Republic to Mr. Abaunza, the general manager of the Corporation, on August 27, 1941.

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1 cases
  • Republic of Mexico v. Hoffman the Baja California
    • United States
    • United States Supreme Court
    • 5 Febrero 1945
    ...shippers. On the merits the district court gave judgment for the libellant. The Circuit Court of Appeals for the Ninth Circuit affirmed, 143 F.2d 854, holding on the authority of The Navemar, supra, and the Katingo Hadjipatera, 2 Cir., 119 F.2d 1022, that the Baja California, although owned......

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