The Navemar Compania Espanola De Navegacion Maritima v. the Navemar 8212 10, 1938

• Decision Date: 31 January 1938
• Docket Number: No. 242,242
• Parties: THE NAVEMAR. COMPANIA ESPANOLA DE NAVEGACION MARITIMA, S.A., v. THE NAVEMAR. Argued Jan. 7—10, 1938
• Court: U.S. Supreme Court

303 U.S. 68

58 S.Ct. 432

82 L.Ed. 667

THE NAVEMAR. COMPANIA ESPANOLA DE NAVEGACION MARITIMA, S.A.,

v THE NAVEMAR.

No. 242.

Argued Jan. 7—10, 1938.

Decided Jan. 31, 1938.

Mr. T. Catesby Jones, of New York City, for petitioner.

[Argument of Counsel from page 69 intentionally omitted] Mr. Charles W. Hagen, of New York City, for respondents.

Mr. Justice STONE delivered the opinion of the Court.

In a suit in admiralty, brought in a District Court by the alleged owner to recover possession of a Spanish merchant vessel, the Spanish Ambassador asked leave to intervene as claimant on the basis of an affidavit of the Spanish Acting Consul General suggesting that when the suit was brought the vessel was the property of the Republic of Spain, by virtue of a decree of attachment promulgated by the President of the Republic, appropriating the vessel to the public use, and that it was then in the possession of the Spanish Government. The principal question for decision is whether it was the duty of the court, upon presentation of the suggestion, to dismiss the libel for want of admiralty jurisdiction.

Petitioner, a Spanish corporation, brought the present suit in admiralty in the District Court for Eastern New York against the Spanish steamship Navemar, five members of her crew, and all persons claiming an interest in her, to recover possession of the vessel. The libel alleged that petitioner was owner of the vessel, which was within the territorial jurisdiction of the court; and that while she was in petitioner's possession the individual respondents, acting as a committee of the crew, had wrongfully and forcibly seized, and had since retained possession of the vessel. After hearing evidence in support of the petition, the District Court rendered its decree upon default, directing the marshal to place libelant in possession.

Thereupon the Spanish Ambassador filed a suggestion in the cause, challenging the jurisdiction of the court on the ground that the Navemar was a public vessel of the Republic of Spain, not subject to judicial process of the court, and asking that it direct delivery of the vessel to the Spanish Acting Consul General in New York. The suggestion alleged that when the suit was brought the Navemar was the property of the Spanish government by virtue of its decree of October 10, 1936, and was in the possession of the Republic of Spain. The District Court issued its order to show cause why the default should not be opened and the Ambassador permitted to appear specially as claimant of the vessel. After a hearing the court denied the application but with leave to the Ambassador to make further application upon fuller presentation of the facts showing the ownership and possession of the vessel by the Spanish government.

Meanwhile the Department of State had refused to act upon the Spanish government's claim of possession and ownership of the Navemar, had declined to honor the request of the Ambassador that representations be made in the pending suit by the Attorney General of the United States in behalf of the Spanish government, and had advised the Ambassador that his government was entitled 'to appear directly before the court in a case of this character.'

A second application by the Ambassador for leave to appear as a claimant upon a verified suggestion, stating additional circumstances relied upon to establish possession of the vessel by the Republic of Spain, was denied. The Navemar, D.C., 18 F.Supp. 153. On appeal the Court of Appeals for the Second Circuit, after restricting the appeal to the order of the District Court on the second application, reversed that order and directed that the libel be dismissed. 90 F.2d 673. We granted certiorari, 302 U.S. 669, 58 S.Ct. 35, 82 L.Ed. —-, because the case is of public importance and because of alleged conflict of the decision below with our decision in The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592, and with that of the Court of Appeals for the Fourth Circuit in The Attualita, 238 F. 909.

Respondent's suggestion on the second application presented two contentions: One, a challenge to the jurisdic- tion on the ground that the Navemar was a public vessel, immune from arrest and process of the court; the other, that the Spanish government was owner of the vessel and entitled to her possession by virtue of the decree of attachment.

In addition to the general allegations of ownership and possession of the vessel by the Spanish government in the first application, the suggestion in the second set up the acquisition of possession in behalf of the Spanish government by specific acts of its consular officers in Argentina and in New York. It alleged that on October 26, 1936, the Spanish Consul at Rosario, Argentina, had indorsed on the ship's roll a statement that 'Through a cable dated 26 of the inst month from the Director General of the Merchant Marine this ship has become the property of the State through attachment according to the Decree of Oct. 10, 1936,' and that on October 28 the Spanish Acting Consul General at Buenos Aires had made a similar indorsement on the ship's register. It was also alleged that on arrival in New York in November the Spanish Acting Consul General at that port, by direction of the Ambassador, had instructed the master of the Navemar 'to await and abide further instructions * * * as regards any further use of the' vessel, and that on November 28 he had instructed the master to render a detailed account of the expenses of the Navemar and of minor repairs that she might require. There was no averment that the alleged seizure by the members of the crew was an act of or in behalf of the Spanish government.

The District Court allowed a full hearing upon the suggestion and upon reply affidavits submitted by libelant, in the course of which there was opportunity for the parties to present proof of all the relevant facts. Cf. Ex Parte State of New York, No. 2, 256 U.S. 503, 41 S.Ct. 592, 65 L.Ed. 1063. The court found that no one had taken possession of the Navemar in behalf of the Spanish government. It pointed out that neither the ship's roll nor its register is a document of title or possession, the ship's roll being merely a record, in the case of Spanish vessels usually deposited with the Spanish Consul while in port, showing arrivals and sailings of the vessel, the kind of cargo carried, the list of passengers, and the enrollment of the members of the crew, and the ship's register being only a record of the nationality of the vessel as determined by the place of her home port. It found that none of the consular officers mentioned had done any act purporting to take possession of the vessel; that none of them had informed the master that he wished to take possession or had any intention of doing so; that the vessel had proceeded under command of her master upon her voyage from Buenos Aires to New York, manned by officers and crew in the employ of petitioner; that upon arrival, the master, under direction of the ship's agent, had discharged cargo; and that before discharge the freight money was paid by the consignees to the agents of the time charterer in New York.

The District Court, upon this and other evidence not necessary to detail, concluded that the Navemar was never in possession of the Spanish government before her seizure by the members of the crew in the territorial waters of the United States, and that she was not a vessel in...