1. A vessel of a friendly government in its possession and
service is a public vessel, even though engaged in the carriage of
merchandise for hire, and as such is immune from suit in the courts
of admiralty of the United States. P. 303 U. S.
2. This immunity the friendly government may assert either
through diplomatic channels or as a claimant in the courts of the
United States. Id.
If the claim is allowed by the executive branch of our
government, it is then the duty of the courts to release the vessel
upon appropriate suggestion by the Attorney General of the United
States or other officer acting under his direction.
The foreign government is also entitled as of right, upon a
proper showing, to appear in a pending suit, there to assert its
claim to the vessel, and to raise the jurisdictional question in
its own name or that of its accredited and recognized
3. The District Court took possession of a Spanish vessel on a
libel by one claiming to be the owner, who alleged wrongful
dispossession by members of the crew. The Spanish Ambassador, by
Page 303 U. S. 69
verified suggestion, challenged the jurisdiction on the ground
that the vessel, before the arrest, was a public vessel in
possession of the Spanish Government and so immune from process. He
also claimed that the Spanish Government was owner, and entitled to
possession by virtue of a Spanish decree of attachment. The
Department of State had refused to act in the matter, and had
referred the Ambassador to the courts. At a hearing upon the
suggestion and reply affidavits, the District Court found that no
one had taken possession in behalf of the Spanish Government,
although endorsements had been made by Spanish consuls in foreign
ports, on the ship's roll and register stating that the ship had
become the property of the Spanish State through an attachment.
(1) That the Ambassador's application was properly entertained.
P. 303 U. S.
(2) The Department of State having declined to act, the want of
admiralty jurisdiction because of the alleged public status of the
vessel and the right of the Spanish Government to demand possession
of the vessel as owner if it so elected were appropriate subjects
for judicial inquiry upon proof of the matters alleged.
(3) The suggestion, though sufficient as a statement of the
contentions made, was not proof of its allegations.
(4) The decree of attachment, being in invitum,
dispossess the shipowner; a taking of actual possession by some act
of physical dominion or control in behalf of the Spanish Government
or some act of recognition by the ship's officers was needful.
(5) The Ambassador should be permitted to intervene as claimant.
P. 303 U. S.
90 F.2d 673 reversed.
Certiorari, 302 U.S. 669, to review the reversal of an order of
the District Court refusing leave to the Ambassador of the Republic
of Spain to appear as claimant of a ship in an admiralty case. The
court below deemed the Ambassador's verified suggestion conclusive,
and ordered the libel dismissed.
Page 303 U. S. 70
MR. JUSTICE STONE delivered the opinion of the Court.
In a suit in admiralty, brought in a District Court by the
alleged owner to recover possession of a Spanish merchant vessel,
the Spanish Ambassador asked leave to intervene as claimant on the
basis of an affidavit of the Spanish Acting Consul General
suggesting that, when the suit was brought, the vessel was the
property of the Republic of Spain, by virtue of a decree of
attachment promulgated by the President of the Republic,
appropriating the vessel to the public use, and that it was then in
the possession of the Spanish Government. The principal question
for decision is whether it was the duty of the court, upon
presentation of the suggestion, to dismiss the libel for want of
Petitioner, a Spanish corporation, brought the present suit in
admiralty in the District Court for Eastern New York against the
Spanish steamship Navemar,
five members of her crew, and
all persons claiming an interest in her, to recover possession of
the vessel. The libel alleged that petitioner was owner of the
vessel, which was within the territorial jurisdiction of the court,
and that, while she was in petitioner's possession, the individual
respondents, acting as a committee of the crew, had wrongfully and
forcibly seized, and had since retained possession of the vessel.
After hearing evidence in support of the petition, the District
Court rendered its decree upon default, directing the marshal to
place libelant in possession.
Thereupon the Spanish Ambassador filed a suggestion in the
cause, challenging the jurisdiction of the court on the ground that
was a public vessel of the Republic of Spain,
not subject to judicial process of the court, and asking that it
direct delivery of the
Page 303 U. S. 71
vessel to the Spanish Acting Consul General in New York. The
suggestion alleged that, when the suit was brought, the
was the property of the Spanish government by
virtue of its decree of October 10, 1936, and was in the possession
of the Republic of Spain. The District Court issued its order to
show cause why the default should not be opened and the Ambassador
permitted to appear specially as claimant of the vessel. After a
hearing, the court denied the application, but with leave to the
Ambassador to make further application upon fuller presentation of
the facts showing the ownership and possession of the vessel by the
Meanwhile, the Department of State had refused to act upon the
Spanish government's claim of possession and ownership of the
had declined to honor the request of the
Ambassador that representations be made in the pending suit by the
Attorney General of the United States in behalf of the Spanish
government, and had advised the Ambassador that his government was
entitled "to appear directly before the court in a case of this
A second application by the Ambassador for leave to appear as a
claimant upon a verified suggestion, stating additional
circumstances relied upon to establish possession of the vessel by
the Republic of Spain, was denied. The
Navemar, 18 F. Supp.
. On appeal, the Court of Appeals for the Second Circuit,
after restricting the appeal to the order of the District Court on
the second application, reversed that order and directed that the
libel be dismissed. 90 F.2d 673. We granted certiorari because the
case is of public importance and because of alleged conflict of the
decision below with our decision in The Pesaro,
255 U. S. 216
with that of the Court of Appeals for the Fourth Circuit in The
238 F. 909.
Respondent's suggestion on the second application presented two
contentions, one a challenge to the jurisdiction
Page 303 U. S. 72
on the ground that the Navemar
was a public vessel,
immune from arrest and process of the court, the other that the
Spanish government was owner of the vessel and entitled to her
possession by virtue of the decree of attachment.
In addition to the general allegations of ownership and
possession of the vessel by the Spanish government in the first
application, the suggestion in the second set up the acquisition of
possession in behalf of the Spanish government by specific acts of
its consular officers in Argentina and in New York. It alleged
that, on October 26, 1936, the Spanish Consul at Rosario,
Argentina, had indorsed on the ship's roll a statement that,
"Through a cable dated 26 of the inst month from the Director
General of the Merchant Marine, this ship has become the property
of the State through attachment according to the Decree of Oct. 10,
and that, on October 28, the Spanish Acting Consul General at
Buenos Aires had made a similar indorsement on the ship's register.
It was also alleged that, on arrival in New York in November, the
Spanish Acting Consul General at that port, by direction of the
Ambassador, had instructed the master of the Navemar
await and abide further instructions . . . as regards any further
use of the" vessel, and that, on November 28, he had instructed the
master to render a detailed account of the expenses of the
and of minor repairs that she might require. There
was no averment that the alleged seizure by the members of the crew
was an act of or in behalf of the Spanish government.
The District Court allowed a full hearing upon the suggestion
and upon reply affidavits submitted by libelant, in the course of
which there was opportunity for the parties to present proof of all
the relevant facts. Cf. Ex Parte New York, 256 U.
. The court found that no one had taken possession
of the Navemar
Page 303 U. S. 73
of the Spanish government. It pointed out that neither the
ship's roll nor its register is a document of title or possession,
the ship's roll being merely a record, in the case of Spanish
vessels usually deposited with the Spanish Consul while in port,
showing arrivals and sailings of the vessel, the kind of cargo
carried, the list of passengers, and the enrollment of the members
of the crew, and the ship's register being only a record of the
nationality of the vessel as determined by the place of her home
port. It found that none of the consular officers mentioned had
done any act purporting to take possession of the vessel; that none
of them had informed the master that he wished to take possession
or had any intention of doing so; that the vessel had proceeded
under command of her master upon her voyage from Buenos Aires to
New York, manned by officers and crew in the employ of petitioner;
that, upon arrival, the master, under direction of the ship's
agent, had discharged cargo, and that, before discharge, the
freight money was paid by the consignees to the agents of the time
charterer in New York.
The District Court, upon this and other evidence not necessary
to detail, concluded that the Navemar
was never in
possession of the Spanish government before her seizure by the
members of the crew in the territorial waters of the United States,
and that she was not a vessel in the public service of the Spanish
The Court of Appeals, without reviewing the findings of the
district court, or the evidence, adverted to the allegation of the
first suggestion, substantially repeated on information and belief
in the second, that the Spanish Consul at Rosario,
"pursuant to instructions from the Director General of the
Spanish Merchant Marine, took possession of the . . .
in the name of the Republic of Spain . . . ,
whereby the . . . Navemar
then and there became and at all
times since has remained the property of the Government of the
Republic of Spain.
Page 303 U. S. 74
Declaring that the court was bound to accept this allegation as
conclusive, it held that the vessel must be taken to be a public
vessel owned by and in the possession of the Spanish government,
and, as such, immune from suit in the courts of the United
This we think was a mistaken view of the force and effect of the
suggestion. Admittedly a vessel of a friendly government in its
possession and service is a public vessel, even though engaged in
the carriage of merchandise for hire, and as such is immune from
suit in the courts of admiralty of the United States. Berizzi
Bros. Co. v. The Pesaro, 271 U. S. 562
compare 11 U. S.
7 Cranch 116. And, in a case such as the present, it
is open to a friendly government to assert that such is the public
status of the vessel, and to claim her immunity from suit either
through diplomatic channels or, if it chooses, as a claimant in the
courts of the United States.
If the claim is recognized and allowed by the Executive Branch
of the government, it is then the duty of the courts to release the
vessel upon appropriate suggestion by the Attorney General of the
United States, or other officer acting under his direction.
Ketland v. The
2 Dall. 365; The Exchange v. M'Faddon,
supra; The Pizarro v. Matthias,
19 Fed.Cas. 786, No. 11, 199;
see The Constitution,
L.R. 4 P.D. 39; compare Ex parte
Muir, 254 U. S. 522
The Parlement Belge,
L.R. 4 P.D. 129. The foreign
government is also entitled as of right, upon a proper showing, to
appear in a pending suit, there to assert its claim to the vessel,
and to raise the jurisdictional question its own name or that of
its accredited and recognized representative. The
11 Wall. 164, 78 U. S. 167
Wheat. 435, 16 U. S.
-446; The Santissima
7 Wheat. 283, 20 U. S. 353
Republic of Columbia v. Cauca Co., 190 U.
; Ex parte Transportes Maritimos,
264 U. S. 105
Berizzi Bros. Co. v. The Pesaro, supra.
After refusal of the Secretary of State to act upon the present
claim, the Ambassador adopted the latter course.
Page 303 U. S. 75
His application to be permitted to appear and present the claim
was properly entertained by the District Court. But it was not
bound, as the Court of Appeals thought, to accept the allegations
of the suggestion as conclusive. The Department of State having
declined to act, the want of admiralty jurisdiction because of the
alleged public status of the vessel and the right of the Spanish
government to demand possession of the vessel as owner if it so
elected were appropriate subjects for judicial inquiry upon proof
of the matters alleged.
But the filed suggestion, though sufficient as a statement of
the contentions made, was not proof of its allegations. This Court
has explicitly declined to give such a suggestion the force of
proof or the status of a like suggestion coming from the Executive
Department of our government. Ex parte Muir, supra; The Pesaro,
supra. Berizzi Bros. Co. v. The Pesaro, supra,
not hold otherwise, for there it was stipulated that the vessel,
when arrested, was owned, possessed, and controlled by a foreign
government and used by it in carrying merchandise for hire. The
sole question was one of law -- whether, upon the facts stipulated,
the vessel was immune from suit.
The District Court concluded, rightly we think, that the
evidence at hand did not support the claim of the suggestion that
had been in the possession of the Spanish
government. The decree of attachment, without more, did not operate
to change the possession which, before the decree, was admittedly
in petitioner. To accomplish that result, since the decree was
actual possession by some act of physical
dominion or control in behalf of the Spanish government was
needful, The Davis,
Wall. 15, 77 U. S. 21
Long v. Tampico,
16 F. 491, 493, 494; The Attualita,
supra; The Carlo Poma,
259 F. 369, 370, rev'd on other
grounds, 255 U. S. 255
219, or at least some recognition on the part of the ship's
officers that they were controlling the vessel and crew in
Page 303 U. S. 76
behalf of their government. *
lacking, as was support for any contention that the vessel was in
fact employed in public service. See Long v. Tampico,
16 F. 491, 493, 494; cf. Berizzi Bros. Co. v. The
The District Court rightly declined to treat the suggestion as
conclusive or sufficient as proof to require the court to
relinquish its jurisdiction. But, as the suggestion was tendered in
support of an application to appear as a claimant in the suit, and
as it put forth a claim to title and right to possession of the
vessel, the Ambassador should have been permitted to intervene and,
if so advised, to litigate its claims in the suit. In Ex parte
and in The Pesaro, supra, 255 U. S. 219
Ambassador of the intervening government challenged the
jurisdiction of the court, but did not place himself or his
government in the attitude of a suitor. Here, the application, as
construed by the trial court, was for permission to intervene as a
claimant. We think the applicant should be permitted to occupy that
position if so advised.
The decree of the Court of Appeals will be reversed. The
respondent will be permitted to intervene for the purpose of
asserting the Spanish government's ownership and right to
possession of the vessel, and the order of the District Court will
be modified accordingly.
MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.
* In The Jupiter,
L.R.1924 Prob.Div. 236, 241, 244
(compare The Jupiter
No. 2, L.R.1925 Prob.Div. 69; The
Jupiter No. 3,
L.R.1927 Prob.Div. 122, 125), and in the
recently reported The Cristina,
59 Lloyd's List Law
Reports, 43, 50, on which respondent relies, the possession taken
in behalf of the claimant government was actual. The judgment in
appears to have proceeded on that ground. In
it appeared that, before the suit was
brought, the master had repudiated the possession and ownership of
the plaintiffs and held the vessel for the claimant government. The
report of The Cristina
in the Admiralty Division, 59
Lloyd's List Law Reports 1, 3, indicates that the master and crew
were in the pay of the Spanish government.