The Attualita, 1479.
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Citation | 238 F. 909 |
| Docket Number | 1479. |
| Parties | THE ATTUALITA. |
| Decision Date | 06 October 1916 |
238 F. 909
THE ATTUALITA.
No. 1479.
United States Court of Appeals, Fourth Circuit.
October 6, 1916
On the 9th of September, 1916, in the court below, the appellant filed his libel in rem against the steamship Attualita. He sought to hold it liable for the damages, estimated at $800,000, occasioned by the alleged negligent sinking, on the 29th of July in the same year, by such vessel, of the Greek steamship Mina. The collision was said to have taken place in the Mediterranean Sea, some 50 miles east of Gibraltar. Under this libel the ship was arrested. On the 20th of September the United States attorney for the Eastern district of Virginia, acting under the direction of the Attorney General of the United States, brought to the attention of the court 'that the Attorney General of the United States has received from the Secretary of State of the United States a communication, dated September 15, 1916, to the effect that the Secretary of State has been advised by the Italian ambassador that the Italian steamship Attualita, which has been libeled and attached in this proceeding, was at the time of the said attachment and is now requisitioned by the Italian government, and was at the time of said attachment and is now in the service of the Italian government. ' The district attorney stated he was further directed to call the attention of the court in this connection to The Luigi (D.C.) 230 F. 493, and concluded by stating that 'in bringing this matter to the attention of the court the United States does not intervene as an interested party, nor do I appear either for the United States or for the Italian government, but I present the suggestion as amicus curiae, as a matter of comity between the United States government and the Italian government, for such consideration as the court may deem necessary and proper. ' Two days later the master of the steamship intervened for the interests of its owner, an Italian corporation, for the sole purpose of filing exceptions to jurisdiction and making claim for the vessel. He objected to the jurisdiction on the ground that the vessel was requisitioned by the Italian government for the purpose of transporting military supplies.
Evidence was taken in the court below. It showed, among other things, that the vessel had been requisitioned by the Italian government; that is to say, the Italian government had required the owners to navigate the ship to and from such ports, and to carry such cargo, as the government, during the period of the requisition, should direct. For the use of the ship the government paid its owners at certain fixed rates. The owners paid all the wages of the captain and crew and the other expenses of the ship, which was navigated by the captain and crew employed by the owners. Just before the arrest the vessel had come into the port of Norfolk in ballast, and was about to proceed to Baltimore to load, according to the directions of the Italian government, a cargo of grain and rails for Italy. The learned judge below reached the conclusion that the steamship, for reasons of comity, should be released, and so ordered. In such order it was declared that the court had not in any manner dealt with the merits of the case set forth in the libel, or with the question of jurisdiction as between the libelant and the respondent shipowner, or the master, who has claimed the ship, and that the release was ordered solely on the ground that at the time of the arrest the ship was under requisition by the government of the kingdom of Italy, and was without prejudice to the merits of the case. In order that the appellant might appeal, the operation of the order was suspended for 10 days. [238 F. 910]
John M. Woolsey, of New York City, Edward R. Baird, Jr., of Norfolk, Va., and J. Parker Kirlin, of New York City, for appellant.
Robert M. Hughes, of Norfolk, Va., for appellee.
Floyd Hughes, of Norfolk, Va., and Francis Rawle, of Philadelphia, Pa. (Hughes & Vandeventer, of Norfolk, Va., and Joseph W. Henderson, of Philadelphia, Pa., on the brief), for the Italian embassy and government, as amici curiae.
Before PRITCHARD and KNAPP, Circuit Judges, and ROSE, District Judge.
PER CURIAM.
The appellee steamship makes five contentions:
1. The decree below is not final, and therefore not appealable. The libel in this case is in rem. The vessel by the decree below is released from arrest. This in effect terminates the proceeding as against her. Counsel upon both sides seem to be at one that, as a practical matter, if this decree remains unreversed, nothing else can be done in the court below which would be worth doing. The question whether a decree is final and appealable is not determined by...
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Republic of Mexico v. Hoffman the Baja California, No. 455
...D.C., 16 F. 491, 493, 494 (opinion by Judge Addison Brown); The Johnson Lighterage Co. No. 24, D.C., 231 F. 365; The Attualita, 4 Cir., 238 F. 909; The Carlo Poma, 2 Cir., 259 F. 369, 370, reversed on other grounds 255 U.S. 219, 41 S.Ct. 309, 65 L.Ed. 594; The Beaverton, D.C., 273 F. 539, 5......
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Ervin v. Quintanilla, No. 8890.
...be supported by something more than the mere assertion of it, The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592; The Attualita, 4 Cir., 238 F. 909; Compania Espanola De Navegacion, Maritima, S. A. v. The Navemar, supra; The Carlo Poma, 2 Cir., 259 F. 369; Long v. The Tampico, D.C., 16 F.......
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Swift & Co. Packers v. Compania Colombiana Del Caribe, No. 12608.
...3 Cir., 165 F.2d 430; Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; The Attualita, 4 Cir., 238 F. 909. 175 F.2d 521 I take issue with the statement of the majority that "* * * Neither on the hearing, nor on the rehearing completed September 20, 1948, m......
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Sullivan v. State of Sao Paulo, No. 315
...a claim, or its "recognition and allowance" thereof within the sense of Compania Espanola v. The Navemar, supra. Cf. The Attualita, 4 Cir., 238 F. 909; Puente v. Spanish National State, 2 Cir., 116 F.2d 43. That test should naturally be supplied by the Executive's representations, not the t......
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Republic of Mexico v. Hoffman the Baja California, No. 455
...D.C., 16 F. 491, 493, 494 (opinion by Judge Addison Brown); The Johnson Lighterage Co. No. 24, D.C., 231 F. 365; The Attualita, 4 Cir., 238 F. 909; The Carlo Poma, 2 Cir., 259 F. 369, 370, reversed on other grounds 255 U.S. 219, 41 S.Ct. 309, 65 L.Ed. 594; The Beaverton, D.C., 273 F. 539, 5......
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Ervin v. Quintanilla, No. 8890.
...be supported by something more than the mere assertion of it, The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592; The Attualita, 4 Cir., 238 F. 909; Compania Espanola De Navegacion, Maritima, S. A. v. The Navemar, supra; The Carlo Poma, 2 Cir., 259 F. 369; Long v. The Tampico, D.C., 16 F.......
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Swift & Co. Packers v. Compania Colombiana Del Caribe, No. 12608.
...3 Cir., 165 F.2d 430; Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; The Attualita, 4 Cir., 238 F. 909. 175 F.2d 521 I take issue with the statement of the majority that "* * * Neither on the hearing, nor on the rehearing completed September 20, 1948, m......
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Sullivan v. State of Sao Paulo, No. 315
...a claim, or its "recognition and allowance" thereof within the sense of Compania Espanola v. The Navemar, supra. Cf. The Attualita, 4 Cir., 238 F. 909; Puente v. Spanish National State, 2 Cir., 116 F.2d 43. That test should naturally be supplied by the Executive's representations, not the t......