1. A decree in admiralty releasing a vessel finally from arrest,
in a suit
in rem, upon the ground of her immunity to the
process of the court, but not in terms dismissing the libel, is
final. P.
255 U. S.
217.
2. Whether from the jurisdiction over "all civil cases of
admiralty and maritime jurisdiction," Jud.Code, 24, cl. 3, there is
an implied exception of trading vessels owned and possessed by
foreign powers is a jurisdictional question, in the sense of
Jud.Code, § 238, governing appeals to this Court from the district
courts. P.
255 U. S.
218.
3. A suggestion that a vessel, arrested in admiralty, is owned
and possessed by a foreign country and is therefore beyond the
jurisdiction of the district court cannot be entertained if made by
the ambassador of that country directly, and not through the
official channels of our government.
Id., Ex parte Muir,
254 U. S. 522.
Reversed.
This was a direct appeal to review a decree of the district
court dismissing a libel
in rem for want of jurisdiction
over the ship. The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
The
Pesaro, an Italian steamship which carried a
shipment of olive oil from Genoa to New York, was sued
in
rem
Page 255 U. S. 217
in admiralty in the district court to enforce a claim for damage
to that part of her cargo, the libel alleging that she was "a
general ship engaged in the common carriage of merchandise by water
for hire." The usual process issued, and the ship was arrested.
Afterwards, upon a direct suggestion by the Italian Ambassador that
the ship was owned by the Italian government and at the time of the
arrest was in its possession, and therefore was not subject to the
court's process, the court vacated the arrest. The libelants
objected that a direct suggestion by the Ambassador was not
admissible, and that, to be entertained, the suggestion should come
through official channels of the United States, but the objection
was overruled. The libelants then requested permission to traverse
the suggestion and to make a showing in opposition; but the request
was denied, the court holding that to controvert or question the
suggestion was not allowable. The libelants appealed directly to
this Court, and in that connection the district court certified the
ground of its decisions as follows:
"I do certify that the vessel was released from arrest by me by
a final decree herein solely because I deemed that the United
States district court, sitting as a court of admiralty, has no
jurisdiction to subject to its process a steamship which is, by the
suggestion of the said Italian Ambassador filed in this Court,
represented to be the public property and in the possession of the
Kingdom of Italy."
Our authority to entertain the appeal is challenged upon two
grounds. One is that the decree is not final, because it does not
dismiss the libel. That it does not formally do so is true, but
this is not decisive. The suit is
in rem -- is against the
ship. The decree holds for naught the process under which the ship
was arrested, declares she is not subject to any such process, and
directs her release -- in other words, dismisses her without day.
Thus, the decree ends the suit as effectually as if it formally
dismissed the libel.
Page 255 U. S. 218
Obviously, therefore, it is final. That it was intended to be so
is shown by the court's certificate.
The other ground is that the question raised and decided was not
a jurisdictional one in the sense of the statute, Jud.Code, § 238,
providing for an appeal or writ of error from a district court
directly to this Court "in any case in which the jurisdiction of
the court may be in issue." But we think it was such a question,
because it directly concerned the power of the district court, as
defined by the laws of the United States, to entertain and
determine the suit.
The Steamship Jefferson, 215 U.
S. 130,
215 U. S.
137-138;
The Ira M. Hedges, 218 U.
S. 264,
218 U. S. 270;
United States v. Congress Construction Co., 222 U.
S. 199. By Judicial Code § 24, cl. 3, the district
courts are invested with original jurisdiction of "all civil causes
of admiralty and maritime jurisdiction," and this is a suit of that
character. Whether Congress intended this statute should include
suits against ships such as the
Pesaro is represented to
be in the Ambassador's suggestion, when they are within the waters
of the United States, is as yet an open question. The statute
contains no express exception of them; but it may be that they are
impliedly excepted.
The Exchange,
7 Cranch 116,
11 U. S. 136,
11 U. S. 146.
If so, the implication is a part of the statute.
United
States v. Babbit, 1 Black 55,
66 U. S. 61;
South Carolina v. United States, 199 U.
S. 437,
199 U. S. 451.
Thus, the answer to the question propounded to the district court
involved a construction of the statute defining its jurisdiction in
admiralty.
We come, then, to consider whether the court erred in sustaining
the Ambassador's suggestion that the ship was not subject to its
process. Apart from that suggestion, there was nothing pointing to
an absence of jurisdiction. On the contrary, what was said in the
libel pointed plainly to its presence. The suggestion was made
directly to the court, and not through any official channel of the
United States. True, it was accompanied by a certificate of the
Page 255 U. S. 219
Secretary of State stating that the Ambassador was the duly
accredited diplomatic representative of Italy, but, while that
established his diplomatic status, it gave no sanction to the
suggestion. The terms and form of the suggestion show that the
Ambassador did not intend thereby to put himself or the Italian
government in the attitude of a suitor, but only to present a
respectful suggestion and invite the court to give effect to it. He
called it a "suggestion," and we think it was nothing more. In
these circumstances, the libelants' objection that, to be
entertained, the suggestion should come through official channels
of the United States was well taken.
Ex Parte Muir,
254 U. S. 522.
And see United States v. Lee, 106 U.
S. 196,
106 U. S. 209.
With the suggestion eliminated, as it should have been, there
obviously was no basis for holding that the ship was not subject to
the court's process. What the decree should have been if the
matters affirmed in the suggestion had been brought to the court's
attention and established in an appropriate way we have no occasion
to consider now. An opportunity so to present and establish them
should be accorded when the case goes back, as it must.
Decree reversed.