1. Over a privately owned ship, arrested in the District, and a
libel for damages due to a collision alleged to have resulted from
negligence of the owner's agents, the district court has
prima
facie jurisdiction, and a mere allegation that the ship is an
admiralty transport in the service of a foreign government is not
enough to establish her immunity. P.
254 U. S.
532.
2. A foreign government is entitled to appear in the district
court and propound its claim to a vessel in a libel suit upon the
ground that the status of the vessel is public and places it beyond
the jurisdiction, or its accredited representative may appear in
its behalf, or its claim, if recognized by our executive
department, may be presented to the court by a suggestion made by
or under authority of the
Page 254 U. S. 523
Attorney General, but the public status of the ship, when in
doubt, cannot be determined upon a mere suggestion of private
counsel appearing as
amicus curiae in behalf of the
embassy of the foreign government. P.
254 U. S.
532.
3. This Court, in it discretion, may decline to issue the writs
of prohibition and mandamus to prevent exercise of jurisdiction by
the district court in an admiralty proceeding where the
jurisdiction is merely in doubt and the state of the case is such
that the question may well be reconsidered by the district court
and on appeal. P.
254 U. S.
534.
Rule discharged and petition dismissed.
The case is stated in the opinion.
Page 254 U. S. 527
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
On July 28, 1917, the
Gleneden, a British steamship
privately owned, and the
Giuseppe Verdi, an Italian
steamship similarly owned, came into collision in the Gulf of
Lyons, both being seriously damaged. November 7, 1918, the British
owner of the
Gleneden commenced a suit
in rem in
admiralty against the
Giuseppe Verdi in the District Court
for the District of New Jersey to recover damages occasioned by the
collision, and a few days later the Italian owner of the
Giuseppe Verdi commenced a like suit against the
Gleneden in the District Court for the Eastern District of
New York. The libel in each suit attributed the collision entirely
to negligence of servants and agents of the owner of the vessel
libeled, it being alleged that she was in their charge at the time.
When the suits were begun, the vessels were within the waters of
the United States, and each was within the particular district
where libeled.
The proceedings in the suit against the
Gleneden are of
immediate concern. After process issued and the vessel was
arrested, private counsel for the British Embassy in Washington,
appearing as
amici curiae, presented to the court a
suggestion in writing to the effect that the process under which
the vessel was arrested should be quashed and jurisdiction over her
declined because, as was alleged,
"the said vessel is an admiralty transport in the service of the
British government by virtue of a requisition from the Lords
Commissioners of the
Page 254 U. S. 528
Admiralty, and is engaged in the business of the British
government and under its exclusive direction and control, and is
under orders from the British Admiralty to sail from the port of
New York on or about November 25, 1918, to carry a cargo of wheat
belonging and consigned to the British government;"
because the court "should not exercise jurisdiction over a
vessel in the service of a co-belligerent foreign government;" and
because
"the British courts have refused to exercise jurisdiction over
vessels in government service, whether of the British government or
of allied governments, in the present war, and that, by comity, the
courts of the United States should in like manner decline to
exercise jurisdiction over vessels in the service of the British
government."
An affidavit of the master of the vessel affirming the truth of
much that was alleged accompanied the suggestion. The libelant,
being cited to show cause why the suggestion should not be acceded
to, responded by objecting that it was not presented through
official channels of the United States, and by denying that the
facts were as alleged. A hearing on the suggestion was had, in
which the libelant and counsel for the British Embassy participated
-- the latter only as
amici curiae -- and at which the
owner of the
Gleneden was represented informally, without
an appearance. In the course of the hearing, counsel for the
libelant called on the others to submit proof in support of the
allegations in the suggestion, particularly to produce the ship's
articles and other instruments bearing on the suggested public
status of the vessel, and to present the master for examination,
but both the counsel for the British Embassy and the representative
of the owner refused to do any of these things, and insisted that
the court was bound, on the mere assertion of the claim of
immunity, to quash the process and release the vessel. The libelant
produced the libel in the suit against the
Giuseppe Verdi,
depositions given in that suit by the
Page 254 U. S. 529
master and other officers of the
Gleneden, a
certificate from the customs officers in New York showing the
report and entry of the
Gleneden on her arrival, and other
evidence, all tending measurably to show that the vessel was
operated by her owner under a charter party whereby the owner was
to keep her properly manned, furnished, and equipped, was to assume
any liability arising from negligent navigation, and was to bear
all loss, injury, or damages arising from dangers of the sea,
including collision. "On all the facts" thus put before it, the
court found that
"the
Gleneden was owned by and was still in the
beneficial possession of the Gleneden Steamship Company, Limited, a
private British corporation, who, through its servants, was in the
actual control of the steamer and of her navigation, but engaged in
performing certain more or less public services for the British
crown under a contractual arrangement amounting to the usual or
government form of time charter party."
The court "decided accordingly that the
Gleneden was
not a public ship in the sense that she was either a government
agency or entitled to immunity," and the suggestion was overruled
and an order was entered to the effect that the vessel would be
released only on the giving of a bond by the owner securing the
claim in litigation or a bond to the marshal conditioned for the
return of the vessel when that could be done consistently with the
asserted needs of the British government.
Afterwards, on November 29, 1918, the master, appearing
specially for the interest of the owner and for the purpose of
objecting to the arrest and detention of the vessel, interposed a
special claim to the effect that the Gleneden Steamship Company,
Limited, was the true and sole owner of the vessel and he, as
master, was her true and lawful bailee, and also interposed
therewith a peremptory exception to the jurisdiction of the court
on the grounds taken in the suggestion on behalf of the British
Embassy. This claim and exception concluded
Page 254 U. S. 530
with a prayer that the process be quashed and the vessel
released. The exception was not set down for hearing, and remains
undisposed of. There was no appearance by either the owner or the
master save as just stated, nor was there any appearance by the
British government or by any representative of that government
other than through the suggestion which counsel for the Embassy in
Washington presented as
amici curiae.
After filing the special claim and exception, the master applied
to the Circuit Court of Appeals for the Second Circuit for writs of
prohibition and mandamus preventing the district court from
exercising further jurisdiction and commanding it to undo what had
been done, but the application was denied for reasons which need
not be noticed now, 255 F. 24.
A few days later, an arrangement was effected whereby an
acceptable surety company undertook to enter into and file a
stipulation for value in the usual form and in a sum to be named by
the libelant, not exceeding $450,000 unless, on an intended
application to this Court for a writ of prohibition, the vessel
should be held immune from the process under which she was arrested
and detained. Following that arrangement, on December 10, 1918, the
district court entered the following order:
"On the annexed agreement for security, and consent of the
proctors for the libelant herein, and the record herein, it is"
"ORDERED that, in order to prevent further delay and expense,
the steamship
Gleneden be and she hereby is allowed to
proceed on her voyage and leave the physical custody of the Marshal
of the Eastern District of New York, provided, however, that this
order does not and shall not be deemed to constitute any withdrawal
of quashing of the writ of arrest, and it is"
"FURTHER ORDERED that all proceedings herein be stayed and
special claimant's or libelant's time to file any other
Page 254 U. S. 531
or further papers herein be extended to and including the 23rd
day of December, 1918, and in case application is made for a writ
of prohibition to the Supreme Court on or before December 23, 1918,
all proceedings herein be stayed and the time of the special
claimant or of the libelant to file any other or further papers
herein be extended until ten (10) days after the entry and service
of an order or decree on the final decision of the United States
Supreme Court on the said writ of prohibition."
The master thereupon asked leave of this Court to file a
petition for a writ of prohibition preventing the district court
from proceeding with the suit and from interfering with the
Gleneden in any manner, and for a writ of mandamus
directing that court to vacate the order made when the suggestion
on behalf of the British Embassy was overruled, and to enter an
order releasing the vessel without requiring security, the grounds
advanced in the petition being essentially a repetition of those
embodied in the suggestion of counsel for the British Embassy. The
requested leave was given, a rule to show cause was issued, a
return was made by the district judge, and counsel have been heard.
Whether on the case thus made either of the writs should be granted
is the matter to be decided.
The principal question sought to be presented -- whether the
Gleneden is such a public vessel of the British government
as to be exempt from arrest in a civil suit
in rem in
admiralty in a court of the United States -- is one of obvious
delicacy and importance. No decision by this Court up to this time
can be said to answer it. The nearest approach is in the case of
The Exchange,
7 Cranch 116, where an armed ship of war, owned, manned, and
controlled by a foreign government at peace with the United States,
was held to be so exempt. To apply the principle or doctrine of
that decision to the
Gleneden would be
Page 254 U. S. 532
taking a long step, and the present posture of this litigation
is such that we find no occasion to consider whether there is
proper warrant for taking it.
It is conceded that the
Gleneden is not an armed ship
of war, and that she is not owned by a foreign government, but by a
private corporation. In a sense, she may be temporarily in the
service and under the control of the British government, but the
nature and extent of that service and control are left in
uncertainty by the proofs, although the facts evidently are
susceptible of being definitely shown.
Prima facie, the district court had jurisdiction of the
suit and the vessel,
The Belgenland, 114 U.
S. 355,
114 U. S.
368-369, and to call that jurisdiction in question was
to assume the burden of showing what was in the way of its
existence or exertion. Merely to allege that the vessel was in the
public service and under the control of the British government as
an admiralty transport was not enough. These were matters which
were not within the range of judicial notice, and needed to be
established in an appropriate way. They were not specially within
the knowledge of the libelant, nor did it have any superior means
of showing the real facts. Thus, from every point of view, it was
incumbent on those who called the jurisdiction in question to
produce whatever proof was needed to sustain their challenge.
As of right, the British government was entitled to appear in
the suit, to propound its claim to the vessel, and to raise the
jurisdictional question.
The Sapphire,
11 Wall. 164,
78 U. S. 167;
The Santissima
Trinidad, 7 Wheat. 283,
20 U. S. 353;
Colombia v. Cauca Co., 190 U. S. 524. Or,
with its sanction, its accredited and recognized representative
might have appeared and have taken the same steps in its interest.
The Anne, 3
Wheat. 435,
16 U. S.
445-446. And, if there was objection to appearing as a
suitor in a foreign court, it was open to that government to make
the asserted
Page 254 U. S. 533
public status and immunity of the vessel the subject of
diplomatic representations to the end that, if that claim was
recognized by the Executive Department of this government, it might
be set forth and supported in an appropriate suggestion to the
court by the Attorney General or some law officer acting under his
direction.
The Cassius, 2
Dall. 365;
The Exchange,
7 Cranch 116;
The Pizarro, 19 Fed.Cas. 786, No. 11,199;
The Constitution, L.R. 4 P.D. 39;
The Parlement
Belge, L.R. 4 P.D. 129; s.c. L.R. 5 P.D.197.
But none of these courses was followed. The suggestion on behalf
of the British Embassy was presented by private counsel appearing
as
amici curiae, and not through the usual official
channels. This was a marked departure from what theretofore had
been recognized as the correct practice (
see cases last
cited), and, in our opinion, the libelant's objection to it was
well taken. The reasons underlying that practice are as applicable
and cogent now as in the beginning, and are sufficiently indicated
by observing that it makes for better international relations,
conforms to diplomatic usage in other matters, accords to the
Executive Department the respect rightly due to it, and tends to
promote harmony of action and uniformity of decision.
See
United States v. Lee, 106 U. S. 196,
106 U. S. 209.
Of course, the suggestion as made could not be given the
consideration and weight claimed for it.
From all that has been said, it is apparent that the status of
the
Gleneden, judged in the light of what was done and
shown in the district court, is at best doubtful and uncertain both
as matter of fact and in point of law. The jurisdiction of that
court is correspondingly in doubt, for it turns on the status of
the vessel. The suit is still in the interlocutory stage. The court
may take up again the question of its jurisdiction. If it does, the
inquiry may proceed on other lines, and the facts may be brought
out more fully than before. In addition, the question
Page 254 U. S. 534
may be reexamined in regular course on an appeal from the final
decree.
The power of this Court under ยง 234 of the Judicial Code to
issue writs of prohibition to the district courts, when proceeding
as courts of admiralty, to prevent an unlawful assumption or
exercise of jurisdiction, is not debatable. But this power, like
others, is to be exerted in accordance with principles which are
well settled. In some instances, as where the absence of
jurisdiction is plain, the writ goes as a matter of right.
Ex
parte Phenix Insurance Co., 118 U. S. 610,
118 U. S. 626;
Ex parte Indiana Transportation Co., 244 U.
S. 456. In others, as where the existence or absence of
jurisdiction is in doubt, the granting or refusal of the writ is
discretionary.
In re Cooper, 143 U.
S. 472, 485 [argument of counsel -- omitted];
In re
New York & Porto Rico Steamship Co., 155 U.
S. 523,
155 U. S. 531;
In re Alix, 166 U. S. 136.
And see Ex parte Gordon, 104 U. S. 515,
104 U. S.
518-519;
The Charkieh, L.R. 8 Q.B.197.
Here, the most that can be said against the district court's
jurisdiction is that it is in doubt, and in other respects the
situation is such that we deem it a proper exercise of discretion
to refuse the writ. Nothing need be added to show that the request
for a writ of mandamus is on no better footing.
In re
Morrison, 147 U. S. 14,
147 U. S. 26;
Ex parte Oklahoma, 220 U. S. 191,
220 U. S. 209;
Ex parte Roe, 234 U. S. 70.
Rule discharged and petition dismissed.