The objection that a vessel owned, possessed, manned, and
operated by a foreign state but engaged in ordinary commerce under
charter to a private trader is immune to libel in the district
court for services and supplies cannot be raised by her master,
who, although a naval officer, is not functioning as such, and is
not shown to have authority to represent his sovereign in making
the objection. P.
264 U. S.
94.
296 F. 567 affirmed.
Appeal from a decree of the district court sustaining a libel
against a ship, for services and supplies.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Seeking to recover for supplies and services furnished at New
York during November, 1920, in order to fit her
Page 264 U. S. 91
for an intended voyage across the Atlantic, appellee libeled the
steamship
Gul Djemal and caused her arrest under the
ordinary admiralty practice. Her master, appearing for the sole
purpose of objecting to the court's jurisdiction, claimed immunity
for the vessel because owned and possessed by the Turkish
government, and asked that she be released. No one except the
master has advanced this claim.
The parties stipulated:
* The Turkish
government and the United States are at peace with each other, but
diplomatic relations have been severed. The Gul Djemal is the
absolute property of the Turkish government and under the
administration of the transport ยง of the Ministry of Marine. That
government employed and
Page 264 U. S. 92
paid the master, officers, and crew, the master being a reserve
naval officer, and was in possession of the ship when arrested.
She
"was engaged in commercial trade, under charter for one round
voyage to George Dedeoglou, who engaged to carry passengers and
goods for hire, and in such trade the
Gul Djemal was not
functioning in a naval or military capacity, nor was there anything
of a naval or military character connected with the voyage of the
Gul Djemal from Constantinople to New York and
return."
The court below denied the alleged immunity and passed a decree
for the libelant. Upon this direct appeal, only the question of
jurisdiction is presented. The relevant certificate follows:
"The sole question raised by the answer of the claimant herein,
and the sole issue before this Court, was the jurisdiction
Page 264 U. S. 93
of the court over the steamship
Gul Djemal, a vessel
owned, manned, operated by, and in the possession of the sovereign
government of Turkey at peace with the government of the United
States of America. The allegations of the libelant that it had
furnished supplies to the vessel were admitted by the claimant,
whose answer set up that the vessel was immune, as a
sovereign-owned vessel, from the process of this Court, and that
the vessel was not within the admiralty and maritime jurisdiction
of this Court. I have granted a decree for the amount prayed for by
the libelant, and have denied immunity to the vessel, because, at
the time the cause of action and
Page 264 U. S. 94
liability on which the libel is founded were created, and at the
time the vessel was seized under process of this Court, she was,
although owned, manned by, and in the possession of the sovereign
government of Turkey, engaged in commercial trade under charter for
hire to a private trader, and furthermore, because diplomatic
relations between the United States and, Turkey were then severed,
and no appropriate suggestion was filed from the State Department
of the United States."
Appellee maintains that whatever may be the proper rule in our
courts concerning the ultimate immunity of vessels owned by foreign
governments and employed in ordinary trade and commerce, such
immunity will not be granted upon the mere claim of the master,
especially when the United States has no diplomatic relations with
the sovereign owner. Such claim can be made only by one duly
authorized to vindicate the owner's sovereignty.
Ex parte
Muir, 254 U. S. 522,
254 U. S.
532-533, is relied upon to support this view. It is
there said:
"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. . . . Or, with its sanction, its
accredited and recognized representative might have appeared and
have taken the same steps in its interest. . . . And, if there was
objection to appearing as a suitor in a foreign court, it was open
to that government to make the asserted 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."
Treating
Ex parte Muir as relevant, appellant insists
that, within the meaning of the declaration there made, the master
of the
Gul Djemal, a duly commissioned officer of
Page 264 U. S. 95
the Turkish Navy was the accredited and recognized
representative of that government, possessed of adequate authority
to protest against the seizure and object to the court's
jurisdiction.
We agree with the view advanced by the appellee.
The Anne, 3
Wheat. 435, reaffirmed by
The Sao Vicente, 260 U.
S. 151, is enough to show that the immunity could not
have been successfully set up by a duly recognized consul,
representative of his sovereign in commercial matters, in the
ordinary course of his official duties, and there seems no adequate
reason to presume that the master of the
Gul Djemal had
any greater authority in respect thereto. Although an officer of
the Turkish Navy, he was performing no naval or military duty, and
was serving upon a vessel not functioning in naval or military
capacity, but engaged in commerce under charter to a private
individual, who undertook to carry passengers and goods for hire.
He was not shown to have any authority to represent his sovereign
other than can be inferred from his position as master and the
circumstances specified in the stipulation of facts.
Affirmed.
MR. JUSTICE HOLMES concurs in the result.
*
"First. That at all the times mentioned in the libel herein, and
at the time of the arrest of the
Gul Djemal, the
Gul
Djemal was owned by the Turkish or Ottoman government; that it
flies the Turkish flag; that Turkey has but one flag, for both
national and commercial uses; that it is registered in the name of
Seire-Seffain Administration; that the
Gul Djemal is the
absolute property of the Ottoman Seire-Seffain Administration, the
third division of the Ministry of Marine of the Turkish government,
which is attached to the Ministry of War; that the maritime title
has been given to the Administration Seire-Seffain by the Ministry
of War. Said Seire-Seffain Administration at the times above
mentioned, was (and is) the transport section of the Ministry of
Marine, and was (and is) charged with the control of transport
vessels of the Turkish government, and said vessels (of which the
Gul Djemal was one), which are capable of commercial uses,
are, when not used as transports, used in commerce; whether such
vessels are used as transports or in commerce is subject to the
direction of the Ministry of Marine, which, through departments
other than the Seire-Seffain has charge of battleships, artillery,
torpedoes, wireless, and engineering work pertaining to all the
vessels of the Turkish navy; that the
Gul Djemal was
transferred for operation to the Administration Seire-Seffain from
the Ministry of War in 1914, and has since been under the control
of Administration of Seire-Seffain."
"Said Seire-Seffain Administration, at the times above
mentioned, had (and has) as its head a military officer of the
Turkish government, in the active or reserve service of the Turkish
government, and said head must be at all times a military officer
in the employ of the Turkish government, the Seire-Seffain
Administration being charged with the transport of troops, and at
all the times above mentioned, said head of the Seire-Seffain
Administration was a colonel, although said head of the
Seire-Seffain Administration, at the times above mentioned, was, in
respect of the
Gul Djemal, not functioning in a military
or naval capacity."
"Second. That, at all the times mentioned in the libel herein,
and at the time of the arrest of the
Gul Djemal, the
Gul Djemal was in the possession of the Turkish
government, being manned by a master, officers, and crew employed
by or under the direction of said Seire-Seffain Administration and
paid by the Treasury Department of the Turkish government through
the Administration Seire-Seffain; said master at the times above
mentioned was (and is) a reserve officer in the Turkish Navy
employed by the branch of the Ministry of Marine known as the
Administration Seire-Seffain, and the navigating officer was a
lieutenant in the active service of the Turkish Navy, both detailed
by the said Ministry of Marine to serve on the
Gul Djemal
during the times above mentioned, but in such service they were not
performing any naval or military functions, although they were
subject to any orders from the department of the Turkish government
charged with naval or military affairs; the other officers and
entire crew of the
Gul Djemal, during the times above
mentioned, were civilians, paid by the Turkish government."
"Third. That at all the times mentioned in the libel herein, and
at the time of the arrest of the
Gul Djemal, the
Gul
Djemal was engaged in commercial trade, under charter for one
round voyage to George Dedeoglou, who engaged to carry passengers
and goods for hire, and in such trade the
Gul Djemal was
not functioning in a naval or military capacity, nor was there
anything of a naval or military character connected with the voyage
of the
Gul Djemal from Constantinople to New York and
return."
"Fourth. That the Turkish government, prior to the time
mentioned in the libel herein, had several diplomatic relations
with the United States of America, advising its peoples by
proclamation, however, that American institutions should not be
molested, but should be treated as heretofore; that said diplomatic
relations have not been resumed, although the United States of
America maintains unofficial relations with the Turkish government
by American consular representatives, and through the medium of a
high commissioner; that, during said period of the severed
relations, the Spanish Ambassador to the United States has
represented, and still represents, Turkish interests in the United
States, and has been recognized as such representative by the
Department of State of the United States of America."
"Fifth. That the Turkish or Ottoman government and the
government of the United States of America are sovereign
governments, and were at all the times mentioned herein at peace
with each other, although the Turkish or Ottoman government was and
is an ally of the enemy of the United States in the World War."