A consul general is not competent, merely by virtue of his
office, to appear and claim immunity on behalf of his government
and its property in admiralty proceedings. P. 260 U. S.
Certiorari to review 281 F. 111 and 115 dismissed.
These were writs of certiorari, issued upon petition of the
Consul General of Portugal for the purpose of bringing up admiralty
proceedings described in the opinion. The writs were directed to
decrees of the circuit court
Page 260 U. S. 152
of appeals which dismissed for want of jurisdiction appeals from
the decrees of the district court.
Page 260 U. S. 153
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The above-entitled causes are here on writs of certiorari issued
upon the sole petition of George S. Duarte, who described himself
therein as the duly accredited consul general of the Republic of
Portugal in the United States of America, without more. The
petition sets out the proceedings below, declares
"the Portuguese government does not intend to avoid its just
obligations to citizens of the United States, but it claims that,
if there is any question between it and such citizens, they are
matters for adjudication by the diplomatic departments of the two
governments, and it does object to the violation of its
sovereignty, contrary to all rules of international law and
and alleges, as one reason for granting the writ, that "an
important question of international law and comity is involved."
There is nothing to show that the consul general had authority or
right to take any action concerning the matters in question except
as may be inferred from his official position. Considering the
possible international aspect of the controversy, we granted the
petition, and appropriate writs issued. Counsel have been heard,
both orally and by briefs.
Nos. 279, 280, and 282 are separate proceedings in rem
commenced in the United States District Court, Southern District of
New York, against the Sao Vicente
to recover for materials, supplies, work, and
labor furnished to them. In each cause, after arrest of the
steamer, the Transportes Maritimos do Estado, intervening for its
interest, appeared before the court and made claim, averring that
it was in possession when the process issued and was the true and
owner. It asked
Page 260 U. S. 154
to defend accordingly, gave bond for costs and value, and
secured the vessel's discharge. Thereafter the steamer answered,
denying the allegations of the libel, and, as a distinct and
complete defense, alleged that it was owned and operated by the
Transportes Maritimos do Estado, a department of the government of
Portugal not subject to suits in courts of the United States. This
special defense was declared insufficient, and final decrees were
duly entered. Appeals to the circuit court of appeals were
dismissed (The Carlo Poma, 255 U.
), that court being of opinion that the only
controverted point was the jurisdiction of the trial court. 281 F.
111 and 115.
Nos. 281 and 283 are separate proceedings in personam,
commenced in the same district court against Transportes Maritimos
do Estado, alleged to be a foreign corporation organized under the
laws of the Republic of Portugal, to recover for services, goods,
wares, and merchandise furnished to its steamers, the
and the Santo Antao.
was attached. The respondents answered, made general denials, and,
as a distinct and complete defense, alleged the Cunene
the Santo Antao
were owned and operated by a department of
the sovereign and operated by a department of the sovereign
government of Portugal, and that the court was therefore without
jurisdiction. This defense was held insufficient. Appeals to the
circuit court of appeals were dismissed upon the view that they
involved only the question of jurisdiction.
We are of the opinion that the writs of certiorari were
improvidently awarded, and must be dismissed. The consul general
was not party to any of the proceedings below, and is not
competent, merely by virtue of his office, to appear here for his
government and claim immunity from process in the manner attempted.
In The Anne,
Wheat. 435, 16 U. S. 445
prize proceeding for condemnation, a claim was interposed in behalf
of the Spanish consul for restitution of the vessel because of
asserted violation of the
Page 260 U. S. 155
neutral territory of Spain. Speaking through Mr. Justice Story,
this Court said:
"And this brings us to the second question in the cause, and
that is whether it was competent for the Spanish counsel, merely by
virtue of his office, and without the special authority of his
government, to interpose a claim in this case for the assertion of
the violated rights of his sovereign. We are of opinion, that his
office confers on him no such legal competency. A consul, though a
public agent, is supposed to be clothed with authority only for
commercial purposes. He has an undoubted right to interpose claims
for the restitution of property belonging to the subjects of his
own country, but he is not considered as a minister, or diplomatic
agent of his sovereign, entrusted, by virtue of his office, with
authority to represent him in his negotiations with foreign states,
or to vindicate his prerogatives. There is no doubt that his
sovereign may specially entrust him with such authority, but in
such case his diplomatic character is superadded to his ordinary
powers, and ought to be recognized by the government within whose
dominions he assumes to exercise it. There is no suggestion or
proof of any such delegation of special authority in this case, and
therefore we consider this claim as asserted by an incompetent
person, and on that ground it ought to be dismissed."
And see United States v. Wong Kim Ark, 169 U.
, 169 U. S. 678
In Re Baiz, 135 U. S. 403
135 U. S. 424
Ex Parte Muir, 254 U. S. 522
254 U. S. 532
The Pesaro, 255 U. S. 216
255 U. S.
* The docket titles of these cases are: No. 279, Transportes
Maritimos do Estado, Claimant of S.S. "Sao Vicente" v. Tietjen
& Lang Drydock Company; No. 280,
Transportes Maritimos do
Estado, Claimant of S.S. "Murmugao" v. Maxwell Rose, doing business
as Battery Operating Company and Whitehall Stevedoring Company; No.
281, Transportes Maritimos do Estado (in personam) v. Maxwell
Rose, doing business as Battery Operating Company and Whitehall
No. 282, Transportes Maritimos do
Estado, Claimant of S.S. "Murmugao" v. Thomas De Simone;
283, Transportes Maritimos do Estado (in personam) v. Thomas De