522.

Argument of amici curiæ for the British Embassy.

As an Admiralty transport, in the public service of the British Government, the Gleneden is immune from judicial process. The Exchange, 7 Cranch, 116; Moore's Int. Law Dig., vol. 2, p. 576; Moitez v. The South Carolina, Bee, 422, 17 Fed. Cas. No. 9,697; Briggs v. Light-Boats, 11 Allen, 157; The Fidelity, 9 Ben. 333; affd. 16 Blatchf. 569; The John McCraken, 145 Fed. Rep. 705; The Thomas A. Scott, 10 L. T. R. (N. S.) 726; The Tartar, Moore's Int. Law Dig., vol. 2, p. 577; The Constitution, L. R. 4 P. D. 39; The Parlement Belge, L. R. 5 P. D. 197, reversing L. R. 4 P. D. 129; The Maipo, 252 Fed. Rep. 627; Young v. S. S. Scotia [1903], A. C. 501; The Broadmayne [1916], Prob. 64; The Messicano, 32 T. L. R. 519; The Erissos, (Lloyd's List, Oct. 24, 1917); The Crimdon, 35 T. L. R. 81; The Roseric, 254 Fed. Rep. 154. The case of The Attualita, 238 Fed. Rep. 909, was distinguished in The Roseric, supra, on the ground that it was decided before this country became a co-belligerent.

This court has very recently held that the change in international relations caused by this nation becoming a co-belligerent instead of a neutral alters the relation of the court to cases having an international aspect. See Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9.

The Luigi, 230 Fed. Rep. 493, was also decided while this country was neutral and no official representations were made therein until after the vessel had been released upon a bond voluntarily given by her private owners.

There is another class of distinguishable cases, in which property belonging to a government has nevertheless been subjected to a lien for salvage or general average when such lien could be enforced without disturbing the possession and control of government representatives. See The Siren, 7 Wall. 152; The Davis, 10 Wall. 15; Long v. The Tampico, 16 Fed. Rep. 491; United States v. Wilder, 3 Sumner, 308; The Johnson Lighterage Co. No. 24, 231 Fed. Rep. 365.

Argument of amici curiæ for the British Embassy. 254 U. S.

The test applied in these cases is whether the private lien can be asserted without interfering with the actual employment of the property in the public service. The Fidelity, supra.

Other cases, however, lay down the broader principle that property belonging to a sovereign Government is absolutely immune from local jurisdiction, irrespective of its immediate physical possession. Hassard v. United States of Mexico, 29 Misc. 511; 46 App. Div. 623; 173 N. Y. 645; Vavasseur v. Krupp, L. R. 9 Ch. D. 351; and see Moore's Int. Law Digest, vol. 2, pp. 591-593.

It may be noted that this rule does not apply where the sovereign consents to be sued (United States v. Morgan, 99 Fed. Rep. 570), or to an uncondemned prize brought into a neutral port in violation of neutrality (The Appam, 243 U. S. 124).

Counsel also distinguished: The Charkieh, L. R. 8 Q. B. 197; L. R. 4 Adm. & Eccl. 59; Oyster Police Steamers of Maryland, 31 Fed. Rep. 763; Workman v. New York City, 179 U. S. 552; The Florence H, 248 Fed. Rep. 1012; The Prins Frederik, 2 Dod. 451 (see The Parlement Belge, L. R. 5 P. D. 213; De Haber v. Queen of Portugal, 17 Q. B. 171); The Swallow, Swab. 30; The Inflexible, Swab. 32.

The criteria of immunity are government control and dedication to the public service. When government control intervenes, neither ownership nor technical possession fixes liability to process, mesne or final, upon the vessel or her owners. See The Utopia [1893], A. C. 492, 499.

In this case the Privy Council referred to The Parlement Belge, supra, as an accepted authority, and in The Castlegate [1893], A. C. 38, 52, the House of Lords also cited it with approval.

The public importance of the question is not affected by the armistice.

The suggestion of immunity by counsel for the British Embassy is a proper method of procedure, and is conclu

sive as to the official facts thus stated. Dillon v. Strathearn S. S. Co., 248 U. S. 182.

This court has power to grant appropriate relief in this proceeding and such relief is necessary to meet the situation.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

On July 28, 1917, the Gleneden, a British steamship privately owned, and the Giuseppe Verdi, an Italian steamship similarly owned, came into collision in the Gulf of Lyons, both being seriously damaged. November 7, 1918, the British owner of the Gleneden commenced a suit in rem in admiralty against the Giuseppe Verdi in the District Court for the District of New Jersey to recover damages occasioned by the collision; and a few days later the Italian owner of the Giuseppe Verdi commenced a like suit against the Gleneden in the District Court for the Eastern District of New York. The libel in each suit attributed the collision entirely to negligence of servants and agents of the owner of the vessel libeled, it being alleged that she was in their charge at the time. When the suits were begun the vessels were within the waters of the United States and each was within the particular district where libeled.

The proceedings in the suit against the Gleneden are of immediate concern. After process issued and the vessel was arrested, private counsel for the British Embassy in Washington, appearing as amici curiæ, presented to the court a suggestion in writing to the effect that the process under which the vessel was arrested should be quashed and jurisdiction over her declined, because, as was alleged, "the said steamship is an Admiralty transport in the service of the British Government by virtue of a requisition from the Lords Commissioners of the

Opinion of the Court.

254 U. S.

Admiralty, and is engaged in the business of the British Government, and under its exclusive direction and control and is under orders from the British Admiralty to sail from the Port of New York on or about November 25, 1918, to carry a cargo of wheat belonging and consigned to the British Government"; because the court "should not exercise jurisdiction over a vessel in the service of a co-belligerent foreign government," and because "the British courts have refused to exercise jurisdiction over vessels in government service, whether of the British Government or of allied governments, in the present war, and that by comity the courts of the United States should in like manner decline to exercise jurisdiction over vessels in the service of the British Government." An affidavit of the master of the vessel affirming the truth of much that was alleged accompanied the suggestion. The libelant, being cited to show cause why the suggestion should not be acceded to, responded by objecting that it was not presented through official channels of the United States and by denying that the facts were as alleged. A hearing on the suggestion was had in which the libelant and counsel for the British Embassy participated,-the latter only as amici curia,—and at which the owner of the Gleneden was represented informally, without an appearance. In the course of the hearing counsel for the libelant called on the others to submit proof in support of the allegations in the suggestion, particularly to produce the ship's articles and other instruments bearing on the suggested public status of the vessel, and to present the master for examination; but both the counsel for the British Embassy and the representative of the owner refused to do any of these things and insisted that the court was bound on the mere assertion of the claim of immunity to quash the process and release the vessel. The libelant produced the libel in the suit against the Giuseppe Verdi, depositions given in that suit by the

master and other officers of the Gleneden, a certificate from the customs officers in New York showing the report and entry of the Gleneden on her arrival, and other evidence, all tending measurably to show that the vessel was operated by her owner under a charter party whereby the owner was to keep her properly manned, furnished and equipped, was to assume any liability arising from negligent navigation, and was to bear all loss, injury or damages arising from dangers of the sea, including collision. "On all the facts" thus put before it, the court found that "the Gleneden was owned by and was still in the beneficial possession of the Gleneden Steamship Co., Ltd., a private British corporation who, through its servants, was in the actual control of the steamer and of her navigation, but engaged in performing certain more or less public services for the British Crown under a contractual arrangement amounting to the usual or government form of time charter party." The court "decided accordingly that the Gleneden was not a public ship in the sense that she was either a government agency or entitled to immunity"; and the suggestion was overruled and an order was entered to the effect that the vessel would be released only on the giving of a bond by the owner securing the claim in litigation or a bond to the marshal conditioned for the return of the vessel when that could be done consistently with the asserted needs of the British Government

Afterwards, on November 29, 1918, the master, appearing specially for the interest of the owner and for the purpose of objecting to the arrest and detention of the vessel, interposed a special claim to the effect that the Gleneden Steamship Company, Limited, was the true and sole owner of the vessel and he as master was her true and lawful bailee; and also interposed therewith a peremptory exception to the jurisdiction of the court on the grounds taken in the suggestion on behalf of the British Embassy. This claim and exception concluded