THE UCAYALI, 562.
| Decision Date | 13 October 1942 |
| Docket Number | No. 562.,562. |
| Citation | 47 F. Supp. 203 |
| Parties | THE UCAYALI. GALBAN LOBO CO., S. A., v. COMPANIA PERUANA DE VAPORES Y DIQUE DEL CALLAO et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Terriberry, Young, Rault & Carroll, of New Orleans, La., for plaintiff.
Monroe & Lemann and Nicholas Callan, all of New Orleans, La., for defendant.
The question here is whether or not the respondent and claimant has entered a general appearance, and submitted itself to the jurisdiction of the court, thereby waiving any right to maintain a plea of sovereign immunity.
The following is a statement of the proceedings in the order in which they occurred.
On March 30, 1942, the present libel in rem was filed by libellant against the steamship Ucayali seeking to recover losses and damages growing out of a breach of a contract of carriage between libellant's agent at Callao, Peru, and Compania Peruana de Vapores y Dique del Callao, alleged on information and belief to be the owner of the steamship Ucayali. On the same day admiralty process in rem was issued by the Clerk and on the day following the United States Marshal executed the warrant of arrest and from that day until released on bond the vessel remained under seizure in the custody of the United States Marshal.
In order to relieve proctors representing the vessel from the burden of applying and obtaining an order of court fixing the amount of the bond, proctors for the libellant did, on April 1, 1942, in accordance with usual practice, address a letter to the United States Marshal advising him "that the libellant is agreeable to having the S. S. Ucayali released from seizure upon the posting of a surety release bond in the sum of $60,000.00". The original of this letter was delivered to proctors for the Ucayali.
On April 9, 1942, a sworn claim for the Ucayali was filed by the Republic of Peru, in which it alleged itself to be
On the same day a surety release bond, dated April 9th, in the amount of $60,000.00, whereon the Republic of Peru was principal, and the National Surety Company was surety, was filed for the release of the Ucayali. This bond though containing a reservation identical with that contained in the claim was otherwise in the usual form, the condition of the bond being "that if said claimant and surety abide by all the orders interlocutory or final of the court and pay the libelant the amount awarded by final decree rendered in the court to which the process is returnable, or in any appellate court, then the foregoing obligation is to be voided, but otherwise it will remain in full force and effect."
This bond contained a recital that the admiralty warrant had been issued by way of foreign attachment and upon discovery of the error was amended by striking out the words "by process of foreign attachment" and substituting therefor the words "by process in rem".
On April 11, 1942, in accordance with the desire theretofore expressed by proctors for the Republic of Peru, the testimony of Francisco Olsen, master of the Ucayali, was taken on the merits of the case. Before swearing the witness, the following was dictated into the record by proctor for respondent.
"The testimony of Francisco Olsen, the master of the Peruvian Steamship Ucayali, is taken with full reservation and without waiver of all defenses and objections which may be available to respondent and claimant, particularly but not exclusively sovereign immunity; and the appearance of counsel for the Government of Peru and the Steamship Ucayali is for the special purpose only of taking the testimony of the master under the reservation aforesaid."
To which proctor for libellant replied:
After the witness was sworn and began his testimony, proctor for libellant made the following statement: "I wish to say, on behalf...
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