Republic of Mexico v. Hoffman the Baja California

• Citation: 89 L.Ed. 729,65 S.Ct. 530,324 U.S. 30
• Decision Date: 05 February 1945
• Docket Number: No. 455,455
• Parties: REPUBLIC OF MEXICO v. HOFFMAN. THE BAJA CALIFORNIA
• Court: United States Supreme Court

324 U.S. 30

65 S.Ct. 530

89 L.Ed. 729

REPUBLIC OF MEXICO

v HOFFMAN. THE BAJA CALIFORNIA.

No. 455.

Argued Jan. 11, 12, 1945.

Decided Feb. 5, 1945.

Mr. Morris Lavine, of Los Angeles, Cal., for petitioner.

Mr. Harold A. Black, of Los Angeles, Cal., for respondent.

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

The question is whether, in the absence of the adoption of any guiding policy by the Executive branch of the government the federal courts should recognize the immunity from a suit in rem in admiralty of a merchant vessel solely because it is owned though not possessed by a friendly foreign government.

Respondent, owner and master of the Lottie Carson, an American fishing vessel, filed a libel in rem in the district court for southern California against the Baja California, her engines, machinery, tackle and furniture, for damage alleged to have been caused when the Baja California negligently caused her two to collide with the Lottie Carson in Mexican waters. The Mexican Ambassador to the United States, acting in behalf of his government, thereupon filed in the district court a suggestion that the Baja California at all the times mentioned in the libel and at the time of her seizure was owned by the Republic of Mexico and in its possession, and engaged in the transportation of cargoes between the ports of the Republic of Mexico and elsewhere. Libellant put in issue the allegations of the suggestion that title to the Baja California was at any time in the Mexican government and denied that she was in that government's possession, public service or use. Trial of these issues proceeded upon stipulated evidence.

In the meantime the United States Attorney for the District, acting under direction of the Attorney General, filed in the district court a communication from the Secretary of State to the Attorney General, in which the State Department called attention to the claim of the Mexican government, already detailed. The Department took no position with respect to the asserted immunity of the vessel from suit other than to cite Ervin v. Quintanilla, 5 Cir., 99 F.2d 935, and Compania Espanola De Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667. In Ervin v. Quintanilla, supra, the asserted immunity from suit of The San Ricardo, a vessel of the Mexican government, was allowed by the court on the ground that at the time of her seizure upon a libel in rem she was in the possession and service of that government. And in Compania Espanola v. The Navemar, supra, the State Department having failed to recognize the claimed immunity of the Spanish vessel Navemar, alleged to have been expropriated by and in the possession of the friendly Republic of Spain at the time of her seizure upon a libel in rem, this Court denied the claimed immunity on the ground that the libelled vessel was not shown to have been in the possession and public service of the foreign government.

The district court was unable to find, under the rule of The Navemar, supra, any ground for relinquishing the jurisdiction over the vessel, and accordingly denied the claim of immunity. The Mexican government then filed an answer to the libel by which it put in issue the material allegations of the libel on the merits and renewed its claim of sovereign immunity from the suit. The court then proceeded with the trial on the merits.

A second suggestion was then filed by the United States Attorney at the direction of the Attorney General, transmitting a communication from the State Department, stating that it accepted as true the contention that the Baja California was the property of the Mexican government and that it recognized a statement by the Mexican Ambassador that his government would meet any liability decreed against the vessel as a binding international undertaking. The district court denied the claim of immunity, finding that the ship was in 'the possession, opera- tion, and control' of the Compania Mexicana de Navigaction del Pacifico, S. de R.L. This was a privately owned and operated Mexican corporation engaged in the commercial carriage of cargoes for hire for private 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 by the Mexican government, was not immune from suit because not in its possession and service. We granted certiorari, 323 U.S. 697, 65 S.Ct. 118, on a petition which presented the question whether title of the vessel without possession in the Mexican government is sufficient to call for judicial recognition of the asserted immunity.

The decisions of the two courts below that the vessel was not in the possession or service of the Mexican government are supported by evidence and call for no extended review here. It is sufficient that it appears that before the injury to the Lottie Carson the Baja California was delivered by the Mexican government to the privately owned and operated Mexican corporation under a contract for a term of five years. As provided by the contract the corporation was to operate the vessel at its own expense in a private freighting venture on the high seas between Mexican ports and between them and foreign ports, and did so operate the vessel until her seizure upon the libel. The officers and crew were selected, controlled and paid by the corporation. For the use of the vessel the corporation agreed to pay to the Mexican government fifty per cent of the net profits of operations but undertook to bear all net losses.

The principal contention of petitioner is that our courts should recognize the title of the Mexican government as a ground for immunity from suit even though the vessel was not in the possession and public service of that government. Ever since The Exchange, 7 Cranch. 116, 3 L.Ed. 287, this Government has recognized such immunity from suit, of a vessel in the possession and service of a friendly foreign government, The L'Invincible, 1 Wheat. 238, 252, 4 L.Ed. 80; The Divina Pastora, 4 Wheat. 52, 64, 4 L.Ed. 512; United States v. Cornell Steamboat Co., 202 U.S. 184, 190, 26 S.Ct. 648, 649, 50 L.Ed. 987; Ex parte Muir, 254 U.S. 522, 531-533, 41 S.Ct. 185, 186, 187, 65 L.Ed. 383; The Pesaro, 255 U.S. 216, 219, 41 S.Ct. 308, 309, 65 L.Ed. 592; Ex parte State of New York, 256 U.S. 503, 510, 41 S.Ct. 592, 593, 65 L.Ed. 1063; Compania Espanola v. The Navemar, supra, 303 U.S. 74, 58 S.Ct. 434, 82 L.Ed. 667; Ex parte Republic of Peru, 318 U.S. 578, 588, 63 S.Ct. 793, 799, 87 L.Ed. 1014, a practice which seems to have been followed without serious difficulties to the courts or embarrassment to the executive branch of the government. And in The Exchange, Chief Justice Marshall introduced the practice, since followed in the federal courts, that their jurisdiction in rem acquired by the judicial seizure of the vessel of a friendly foreign government, will be surrendered on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect is presented to the court by the Attorney General. United States v. Lee, 106 U.S. 196, 209, 1 S.Ct. 240, 251, 27 L.Ed. 171; Ex parte Muir, supra, 254 U.S. 533, 41 S.Ct. 187, 65 L.Ed. 383; The Pesaro, supra, 255 U.S. 217, 41 S.Ct. 308, 65 L.Ed. 592; Compania Espanola v. The Navemar, supra, 303 U.S. 74, 58 S.Ct. 434, 82 L.Ed. 667; Ex parte Peru, supra, 318 U.S. 588, 63 S.Ct. 799, 87 L.Ed. 1014. This practice is founded upon the policy recognized both by the Department of State and the courts that the national interests will be best served when controversies growing out of the judicial seizure of vessels of friendly foreign governments are adjusted through diplomatic channels rather than by the compulsion of judicial proceedings. Compania Espanola v. The Navemar, supra; Ex parte Peru, supra.

In the absence of recognition of the claimed immunity by the political branch of the government, the courts may decide for themselves whether all the requisites of immu- nity exist. That is to say, it is for them to decide whether the vessel when seized was that of a foreign government and was of a character and operated under conditions entitling it to the immunity in conformity to the principles accepted by the department of the government charged with the conduct of our foreign relations. See Ex parte Peru, supra, 318 U.S. 588, 63 S.Ct. 799, 87 L.Ed. 1014.

Every judicial action exercising or relinquishing jurisdiction over the vessel of a foreign government has its effect upon our relations with that government. Hence it is a guiding principle in determining whether a court should exercise or surrender its jurisdiction in such cases, that the courts should not so act as to embarrass the executive arm in its conduct of foreign affairs. 'In such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.' United States v. Lee, supra, 106 U.S. 209, 1 S.Ct. 251, 27 L.Ed. 171; Ex parte Peru, supra, 318 U.S. 588, 63 S.Ct. 799, 87 L.Ed. 1014.

It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.¹ The judicial seizure of the property of a friendly state may be regarded as such an affront to its dignity and may so affect our relations with it, that it is an accepted rule of substantive law governing the exercise of the jurisdiction of the courts that they accept and follow the executive determination that the vessel shall be treated as immune. Ex parte Peru, supra, 318 U.S. 588, 63 S.Ct. 799, 87 L.Ed. 1014. But recognition by the courts...