1. The question whether a ship of a foreign government, which it
uses and operates as a merchant vessel, is, within the waters of
the United States, immune from process in admiralty suits to
enforce claims for wharfage and supplies, and whether such immunity
properly can be claimed for a ship of a government which has
severed and not resumed diplomatic relation with the United States,
are debatable questions. P.
256 U. S.
618.
2. The granting or refusal of the writs of prohibition and
mandamus to restrain and correct alleged excesses of jurisdiction
by the district court in admiralty is discretionary when the
jurisdiction of that court is debatable. P.
256 U. S. 619.
Leave denied.
The facts are stated in the opinion,
post, 256 U. S.
618.
Page 256 U. S. 618
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a motion for leave to file a petition for a writ of
prohibition and a writ of mandamus. The circumstances leading up to
the motion can be shortly stated. The Steamship
Gul
Djemal, new in the port of New York, was arrested and is being
held under process issued against her in several suits in admiralty
in the district court for that district. She is a merchant ship and
came from Constantinople to New York under a time charter party,
for a purely commercial purpose, shortly before the suits were
brought. The claims sought to be enforced in them amount to
$80,585, and are for wharfage, fuel, supplies, and other
necessaries furnished to the ship at Gibraltar in the course of her
voyage and at New York after her arrival. Her master, Hussein Lutfi
Bey, appearing specially in the suits, applied to have her released
from arrest, and in support of his application alleged that she was
owned, manned, and operated by the Turkish or Ottoman government,
that she therefore was not subject to the court's process, and that
he, as the representative and agent of that government, was her
true and lawful bailee, and as such entitled to her immediate
possession. The court declined to order her release, and, in the
petition now proffered, the master seeks a writ of prohibition
forbidding further proceedings in the suits and a writ of mandamus
commanding that the order denying his application be vacated and
another entered releasing the ship. The questions involved are,
first, whether the ship of a foreign government which it uses and
operates as a merchant vessel is, when within the waters of the
United States, immune from process in suits such as have
Page 256 U. S. 619
been described, and secondly, whether such immunity properly can
be claimed in respect of the ship of a government which has severed
and not resumed diplomatic relations with the United States. Both
questions are important and also new. Their proper solution is not
plain, but debatable. This is frankly recognized in the brief
supporting the motion.
Even in admiralty cases, a writ of prohibition goes as a matter
of right only where the absence of jurisdiction is plain. Where the
jurisdiction is debatable, the granting or refusal of the writ is
discretionary.
In re Muir, 254 U.
S. 522.
It is not plain that there is an absence of jurisdiction here,
for the question is an open one, and of uncertain solution. On
application to the State Department, it declined to ask the
Attorney General to present to the district court a suggestion
avowing that the ship belonged to the Turkish or Ottoman government
and was immune from seizure. We regard the situation as one in
which to refuse the writ would be a proper exercise of discretion.
There are stronger reasons against granting a writ of mandamus.
Leave to file petition denied.