Rich v. Naviera Vacuba, SA

• Decision Date: 29 August 1961
• Docket Number: No. 8220-8224.,8220-8224.
• Citation: Rich v. Naviera Vacuba, SA, 197 F. Supp. 710 (E.D. Va. 1961)
• Parties: James RICH and Walter Precha, Libellants, v. NAVIERA VACUBA, S.A., and Republic of Cuba, Respondents. Nick DARATSAKIS, Intervening Libellant, v. NAVIERA VACUBA, S.A., and Republic of Cuba, Respondents. Julio LOBO, Libellant, v. THE M/V BAHIA DE NIPE, her engines, boilers, tackle, apparel and furniture, in rem, and Naviera Vacuba, S.A., a foreign corporation, its Owner and/or Operator, in personam, Respondents. MAYAN LINES, S.A., Libellant, v. REPUBLIC OF CUBA, Principal Respondent, and Official Vacuba, and THE S/S BAHIA DE NIPE, her master and/or such other person or persons or agency in possession thereof, Co-Respondents. UNITED FRUIT SUGAR COMPANY, a Delaware Corporation, Libellant, v. 5,000 TONS OF SUGAR, in rem, now laden on board THE M/V BAHIA DE NIPE, now in Lynnhaven Roads, Virginia, and Augustin Albella, acting master, in personam, Respondents. Jorge NAVARRO et al., Libellants, v. THE M/S BAHIA DE NIPE, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

197 F. Supp. 710

James RICH and Walter Precha, Libellants, v.NAVIERA VACUBA, S.A., and Republic of Cuba, Respondents.

Nick DARATSAKIS, Intervening Libellant, v.NAVIERA VACUBA, S.A., and Republic of Cuba, Respondents.

Julio LOBO, Libellant, v.THE M/V BAHIA DE NIPE, her engines, boilers, tackle, apparel and furniture, in rem, and Naviera Vacuba, S.A., a foreign corporation, its Owner and/or Operator, in personam, Respondents.

MAYAN LINES, S.A., Libellant, v.REPUBLIC OF CUBA, PrincipalRespondent, andOfficial Vacuba, and THE S/S BAHIA DE NIPE, her master and/or such other person or persons or agency in possession thereof, Co-Respondents.

UNITED FRUIT SUGAR COMPANY, a Delaware Corporation, Libellant, v.5,000 TONS OF SUGAR, in rem, now laden on board THE M/V BAHIA DE NIPE, now in Lynnhaven Roads, Virginia, and Augustin Albella, acting master, in personam, Respondents.

Jorge NAVARRO et al., Libellants, v.THE M/S BAHIA DE NIPE, Respondent.

Nos. 8220-8224.

United States District Court E. D. Virginia, Norfolk Division.

August 29, 1961.

Sidney H. Kelsey, Norfolk, Va., and Abraham E. Freedman, Philadelphia, Pa., for Libellants in 8220.

Jett, Sykes & Coupland and Waverley L. Berkley III, Norfolk, Va., for Libellants in 8221.

Breeden, Howard & MacMillan, Edw. L. Breeden, Jr., and Robert R. MacMillan, Norfolk, Va., for Libellants in 8222.

Vandeventer, Black, Meredith & Martin and Braden Vandeventer, Jr., Norfolk, Va., for Libellants in 8223.

Parsons, Stant & Parsons and L. S. Parsons, Jr., Norfolk, Va., for Libellants in 8224.

Carl Davis, Asst. Chief, Alan Raywid and James E. Wesner, Attys., Admiralty & Shipping Section, Department of Justice, Washington, D. C., C. V. Spratley, Jr., U. S. Atty., Roger T. Williams, Asst. U. S. Atty., Norfolk, Va., for United States Coast Guard and Attorney General of United States.

WALTER E. HOFFMAN, District Judge.

Of utmost importance to our nation are the inquiries propounded to the Court in these cases which, for the purposes herein stated, have been consolidated.Succinctly stated, they are:

(1) Under what circumstances, if any, may the Executive branch of our government, acting through the United States Coast Guard, prevent the United States Marshal from arresting a foreign-flag vessel and cargo, within the jurisdiction of this court, under a valid process issued by the authority of the United States under the seal of a United States District Court?As a necessary corollary to this inquiry, does such authority exist in 50 U.S.C.A. § 191 upon which the Executive relies?

(2) Irrespective of the determination of the foregoing, is the suggestion of sovereign immunity as filed by the Attorney General of the United States at the request of the Department of State, sufficient to grant immunity as to these actions which seek the arrest of a Cuban vessel and her cargo?

The facts of this controversy are not in material dispute.The Bahia De Nipe, a vessel formerly owned by Naviera Vacuba, S. A., and now apparently operated by Consignataria Mambisas, Division de Lineas De Navegacion Mambisas, Flota Del Estado Cubano, sailed from Cuba with a cargo of sugar on August 8, 1961.Its destination was a port in the Soviet Union.The master and ten crewmen planned to divert the vessel to American waters where they hoped to seek political asylum.Through their efforts they were successful in taking command of the ship when approximately 300 miles East of Bermuda and, on Thursday, August 17, the United States Coast Guard received information to the effect that the Bahia De Nipe was enroute to Hampton Roads, Virginia.The required 24 hour warning was not given.When the vessel reached the three-mile limit, she was met by the Coast Guard and taken to anchorage off Lynnhaven, Virginia.At all other times pertinent to this discussion the Bahia De Nipe has remained within the three-mile limit, and within the jurisdiction of this court.

The Coast Guard boarded the vessel and examined same.Three pistols and approximately 35 hand grenades were located in varying places throughout the ship.A large quantity of literature, consisting of books and pamphlets written in English, Spanish and Russian and political manuals on Cuba and Russia, was scattered about the ship.The weapons and at least a portion of the literature were immediately removed.

From the moment the Coast Guard met the Bahia De Nipe at the three-mile limit, the Cuban vessel has been under the control of the Coast Guard.Immigration officials, customs officers, and Public Health Service authorities were also permitted to board the ship but, aside from this action, no other individual or agent of the United States Government or otherwise has been permitted to go aboard.

On Friday, August 18, a libel was filed in behalf of two longshoremen against Naviera Vacuba, S. A., and the Republic of Cuba, seeking the seizure of the vessel under a clause of foreign attachment.These longshoremen had previously recovered substantial judgments against Naviera Vacuba, S. A., in actions instituted in the United States District Court for the Eastern District of Pennsylvania.In rapid succession additional libels were filed by other claimants; one seeking the recovery of a judgment in the sum of $500,000 rendered against the Republic of Cuba by a state court in Louisiana; another asking for a judgment in the sum of $140,000 for fuel and necessities furnished vessels owned by Naviera Vacuba, S. A., during 1959; a third being a libel against the cargo of sugar which, according to the evidence, originated from the properties of The United Fruit Sugar Company, said properties having been expropriated by the Cuban government in July, 1960; and, finally, an action for wages alleged to be due the master and ten defecting crew members.The Clerk having issued the required processes pursuant to law, the necessary papers were delivered to a Deputy United States Marshal for service upon the ship.A private launch was made available to the Marshal and, in performance of his duties, an effort was made to reach the ship.The Coast Guard cutter Cherokee, after being fully advised as to the purpose of the visit by the Marshal, declined to permit the launch to enter the area¹.The United States Attorney has stipulated that, but for the physical action of the United States Coast Guard, the Bahia De Nipe would have been attached by the Marshal under the valid processes issued by this court.

The Coast Guard assigns no reason for its action, other than that it was in accordance with orders, in pursuance of law and for the safety of the Marshal.More specifically, the Coast Guard relies upon 50 U.S.C.A. § 191, which reads as follows:

"Whenever the President by proclamation or Executive order declares a national emergency to exist by reason of actual or threatened war, insurrection, or invasion, or disturbance or threatened disturbance of the international relations of the United States, the Secretary of the Treasury may make, subject to the approval of the President, rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, may inspect such vessel at any time, place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of the rights and obligations of the United States, may take, by and with the consent of the President, for such purposes, full possession and control of such vessel and remove therefrom the officers and crew thereof and all other persons not specially authorized by him to go or remain on board thereof.

"Within the territory and waters of the Canal Zone the Governor of the Canal Zone, with the approval of the President, shall exercise all the powers conferred by this section on the Secretary of the Treasury.

"Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States, the President is authorized to institute such measures and issue such rules and regulations—

"(a) to govern the anchorage and movement of any foreign-flag vessels in the territorial waters of the United States, to inspect such vessels at any time, to place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of rights and obligations of the United States, may take for such purposes full possession and control of such vessels and remove therefrom the officers and crew thereof, and all other persons not especially authorized by him to go or remain on board thereof;

"(b) to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the jurisdiction of the United States.

"Any appropriation available to any of the Executive Departments shall be available to carry out the provisions of this chapter.June 15, 1917, c. 30, Title II, § 1, 40 Stat. 220;Aug. 9, 1950, c. 656, § 1, 64 Stat. 427;Sept. 26, 1950, c. 1049, § 2(b), 64 Stat. 1038."

The matter was first directed to the attention of this Court on late Friday afternoon, August 18, 1961.After hearing preliminary arguments from proctor for the two longshoremen and the Assistant United States Attorney, the Court issued an order directed to the Captain of the Port and the Commander of the Coast Guard Division Five requiring said parties to appear on Saturday, August 19, 1961, at 10 A.M., to show cause, if any they...