1. Upon the libel of a ship for services and supplies, the
district court acquires jurisdiction of the
res, with
power to pass upon the form and substance of a claim of immunity
presented by a foreign minister alleging that the ship is owned and
operated by a department of his government. P.
264 U. S.
108.
2. The overruling of such a claim by the district court and
circuit court of appeals is not reviewable here by prohibition and
mandamus where there was full opportunity to review in the
customary way.
Id.
Rule discharged and petition dismissed.
Petitions for prohibition and mandamus, presented to this Court
by the Minister of the Republic of Portugal.
Page 264 U. S. 107
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
By this original petition, the duly accredited Minister of the
Republic of Portugal asks for the writ of prohibition or mandamus
to prevent further action in the proceeding instituted by Stephen
Ransom Dry Dock & Repair Corporation in the District Court at
New York, April 14, 1921, to enforce payment for services and
materials furnished the
Sao Vicente. Recognizing the high
consideration always due diplomatic representatives of friendly
nations, we entertained the petition and directed a rule to show
cause why relief should not be granted. The return is here, and,
after hearing oral argument, we think the court below acted within
its jurisdiction, and with due regard to the rights of all
concerned.
The original libel
in rem, filed April 14, 1921,
claimed for supplies and labor furnished the
Sao Vicente
and prayed for condemnation and sale of the vessel. April 15th,
Transportes Maritimos do Estado intervened as the true owner,
having possession when process issued; the customary stipulation
for value, bond, and release of the ship followed.
Answering by proctor, May 31, 1921, the vessel denied liability
and objected to the jurisdiction because it was
"owned and operated by Transportes Maritimos do Estado, a
department of the sovereign foreign government of Portugal as
aforesaid, and that it cannot be sued in any of the courts of the
United States without its consent, and that this action is in
substance and effect an action against the government of Portugal,
and as such is not maintainable against this respondent."
An interlocutory decree of June 9, 1923, directed the master to
ascertain the amount due.
July 5, 1923, the present petitioner filed a formal suggestion.
He stated that the general appearance by
Page 264 U. S. 108
counsel retained by the Vice-Consul General of the Republic of
Portugal was unauthorized by his government, and that the vessel
was owned and operated by Transportes Maritimos do Estado, a
department of the sovereign government of Portugal. He protested
against exercise of jurisdiction by the court, and asked that the
proceedings be dismissed. The Secretary of State gave no sanction
or approval to this course, but certified the diplomatic position
of the Minister. Upon motion, the suggestion was stricken from the
files. Final judgment for the libelant followed, and, upon appeal,
the circuit court of appeals affirmed this, with interest and
damages, October 1, 1923. No proper steps were taken to secure an
orderly review by this Court.
Plainly, the trial court obtained jurisdiction over the
res, and, in the absence of any claim of immunity, it
would have been required to render judgment. It had power to
consider and pass upon both form and substance of any objection to
its jurisdiction because of ownership, and to decide whether it
should proceed under the circumstances. There was a plain way to
seek review here if the defeated party had so desired.
We find no adequate ground for granting the extraordinary relief
now asked. There has been ample time and opportunity for advancing
the claim of immunity in the customary manner.
Ex parte
Muir, 254 U. S. 522;
The Pesaro, 255 U. S. 216,
255 U. S.
218-219;
Ex parte Hussein Lutfi Bey,
256 U. S. 616,
256 U. S. 619.
Rule discharged, and petition dismissed.