British steamship privately owned, and official channels of the United States, and the Giuseppe Verdi, an Italian steamship by denying that the facts were as alleged. similarly owned, came into collision in A hearing on the suggestion was had, in the Gulf of Lyons, both being seriously which the libellant and counsel for the damaged. November 7, 1918, the British British Embassy participated,-the latter owner of the Gleneden commenced a suit only as amici curiæ,-and at which the in rem in admiralty against the Giuseppe owner of the Gleneden was represented Verdi in the district court for the dis- informally, without an appearance. In trict of New Jersey, to recover damages the course of the hearing counsel for the occasioned by the collision; and a few libellant called on the others to submit 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.

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 libellant produced the libel in the suit against the The proceedings in the suit against the Giuseppe Verdi, depositions given in that Gleneden are of immediate concern. suit by the [529] master and other After process issued and the vessel was officers of the Gleneden, a certificate arrested, private counsel for the British from the customs officers in New Embassy in Washington, appearing as York, showing the report and entry amici curiæ, presented to the court a of the Gleneden on her arrival, and suggestion in writing to the effect that other evidence, all tending measurably the process under which the vessel was to show that the vessel was operatarrested should be quashed and jurisdic- ed by her owner under a charter partion over her declined, because, as was ty whereby the owner was to keep alleged, "the said vessel is an admiralty her properly manned, furnished, and transport in the service of the British equipped, was to assume any liability government by virtue of a requisition arising from negligent navigation, and from the Lords Commissioners of the was to bear all loss, injury, or damages [528] Admiralty, and is engaged in arising from dangers of the sea, includthe business of the British govern- ing collision. "On all the facts" thus put ment, and under its exclusive direc-before it, the court found that "the Glention 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 cobelligerent foreign government;" and because "the British courts have refused to exereise 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 libellant, being cited to show cause why the suggestion should not be acceded to, responded by objecting that it was not presented through

eden was owned by and was still in the beneficial possession of the Gleneden Steamship Company, Limited, 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

or libellant's time to file any other [531] or further papers herein be extended to and including the 23d day of December, 1918, and in case application is made for a writ of prohibition to the Supreme Court on or before December 23d, 1918, all proceedings herein be stayed and the time of the special claimant or of the libellant to file any other or further papers herein be extended until ten (10) days after the entry and service of an order or decree on the final decision of the United States Supreme Court on the said writ of prohibition."

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 [530] with a prayer that the process be quashed and the vessel released. The The master thereupon asked leave of exception was not set down for hear- this court to file a petition for a writ of ing and remains undisposed of. There prohibition preventing the district court was no appearance by either the own- from proceeding with the suit, and from er or the master save as just stated; interfering with the Gleneden in any nor was there any appearance by the manner, and for a writ of mandamus diBritish government or by any repre- recting that court to vacate the order sentative of that government other made when the suggestion on behalf of than through the suggestion which coun- the British Embassy was overruled, and sel for the Embassy in Washington to enter an order releasing the vessel presented as amici curiæ. without requiring security,-the grounds. advanced in the petition being essentially a repetition of those embodied in the suggestion of counsel for the British Embassy. The requested leave was given, a rule to show cause was issued, a return was made by the district judge, and counsel have been heard. Whether, on the case thus made, either of the writs 166 should be granted, is the matter to be decided.

After filing the special claim and exception, the master applied to the circuit court of appeals for the second circuit for writs of prohibition and mandamus preventing the district court from exercising further jurisdiction, and commanding it to undo what had been done; but the application was denied for reasons which need not be noticed now. C. C. A. 352, 255 Fed. 24.

A few days later an arrangement was effected whereby an acceptable surety company undertook to enter into and file a stipulation for value in the usual form and in a sum to be named by the libellant, not exceeding $450,000, unless, on an intended application to this court for a writ of prohibition, the vessel should be held immune from the process under which she was arrested and detained. Following that arrangement, on December 10, 1918, the district court entered the following order:


The nearest ap

The principal question sought to be presented-whether the Gleneden such a public vessel of the British government as to be exempt from arrest in a civil suit in rem in admiralty in a court of the United States-is one of obvious delicacy and importance. No decision by this court up to this time can be said to answer it. proach is in the case of The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287, where an armed ship of war, owned, manned, and controlled by a foreign government at peace with the United States, was held to be so exempt. To apply the principle or doctrine of that decision to the Gleneden would be [532] taking a

litigation is such that we find no occasion to consider whether there is proper warrant for taking it.

"On the annexed agreement for security, and consent of the proctors for the libellant herein, and the record herein, it is Ordered that, in order to prevent fur-long step, and the present posture of this ther delay and expense, the steamship Gleneden be and she hereby is allowed to proceed on her voyage and leave the physical custody of the marshal of the It is conceded that the Gleneden is not eastern district of New York, provided, an armed ship of war, and that she is however, that this order does not and not owned by a foreign government, but shall not be deemed to constitute any by a private corporation. In a sense withdrawal or quashing of the writ of she may be temporarily in the service arrest; and it is and under the control of the British Further ordered that all proceedings government, but the nature and extent herein be stayed and special claimant's of that service and control are left in

uncertainty by the proofs, although the facts evidently are susceptible of being definitely shown.

Prima facie the district court had jurisdiction of the suit and the vessel (The Belgenland, 114 U. S. 355, 368, 369, 29 L. ed. 152, 157, 5 Sup. Ct. Rep. 860); and to call that jurisdiction in question was to assume the burden of showing what was in the way of its existence or exertion. Merely to allege that the vessel was in the public service, and under the control of the British government as an admiralty transport, was not enough. These were matters which were not within the range of judicial notice, and needed to be established in an appropriate way. They were not specially within the knowledge of the libellant, nor did it have any superior means of showing the real facts. Thus from every point of view it was incumbent on those who called the jurisdiction in question to produce whatever proof was needed to sustain their challenge.

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. The Sapphire, 11 Wall. 164, 167, 20 L. ed. 127, 130; The Santissima Trinidad, 7 Wheat. 283, 353, 5.L. ed. 454, 471; Colombia v. Cauca Co. 190 U. S. 524, 47 L. ed. 1159, 23 Sup. Ct. Rep. 704. Or, with its sanction, its accredited and recognized representative might have appeared and have taken the same steps in its interest. The Anne, 3 Wheat. 435, 445, 446, 4 L. ed. 428, 430, 431. And, if there was objection to appearing as a suitor in a foreign court, it was open to that government to make the asserted [533] public status and immunity of the vessel the subject of diplomatic repsentations 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. Ketland v. The Cassius, 2 Dall. 365, 1 L. ed. 418, Fed. Cas. No. 7,743; The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287, s. c. Fed. Cas. No. 8,786; The Pizarro v. Matthias, 10 N. Y. Leg. Obs. 97, Fed. Cas. No. 11,199; The Constitution, L. R. 4 Prob. Div. 39, 48 L. J. Prob. N. S. 13, 40 L. T. N. S. 219, 27 Week. Rep. 739, 4 Asp. Mar. L. Cas. 79; The Parlement Belge, L. R. 4 Prob. Div. 129, s. c. L. R. 5 Prob. Div. 197, 42 L. T. N. S. 273, 28 Week. Rep. 642, 4 Asp. Mar. L. Cas. 234.

But none of these courses was fol

lowed. The suggestion on behalf of the British Embassy was presented by private counsel appearing as amici curiæ, and not through the usual official channels. This was a marked departure from what theretofore had been recognized as the correct practice (see cases last cited); and in our opinion the libellant's objection to it was well taken. The reasons underlying that practice are as applicable and cogent now as in the beginning, and are sufficiently indicated by observing that it makes for better international relations, conforms to diplomatic usage in other matters, accords to the Executive Department the respect rightly due to it, and tends to promote harmony of action and uniformity of decision. See United States v. Lee, 106 U. S. 196, 209, 27 L. ed. 171, 177, 1 Sup. Ct. Rep. 240. Of course, the suggestion as made could not be given the consideration and weight claimed for it.

From all that has been said it is apparent that the status of the Gleneden, judged in the light of what was done and shown in the district court, is at best doubtful and uncertain, both as matter of fact and in point of law. The jurisdiction of that court is correspondingly in doubt, for it turns on the status of the vessel. The suit is still in the interlocutory stage. The court may take up again the question of its jurisdiction. If it does, the inquiry may proceed on other lines and the facts may be brought out more fully than before. In addition, the question [534] may be re-examined in regular course on an appeal from the final decree.

The power of this court, under § 234 of the Judicial Code, to issue writs of prohibition to the district courts, when proceeding as courts of admiralty, to prevent an unlawful assumption or exercise of jurisdiction, is not debatable. But this power, like others, is to be exerted

in accordance with principles which are well settled. In some instances, as where the absence of jurisdiction is plain, the writ goes as a matter of right. Ex parte Phenix Ins. Co. 118 U. S. 610, 626, 30 L. ed. 274, 280, 7 Sup. Ct. Rep. 215; Ex parte Indiana Transp. Co. 244 U. S. 456, 61 L. ed. 1253, 37 Sup. Ct. Rep. 717. In others, as where the existence or absence of jurisdiction is in doubt, the granting or refusal of the writ is discretionary. Re Cooper, 143 U. S. 472, 485, 36 L. ed. 232, 12 Sup. Ct. Rep. 453; Re New York & P. R. S. S. Co. 155 U. S. 523, 531, 39 L. ed. 246, 249, 15 Sup. Ct. Rep. 183; Re Alix, 166 U. S. 136, 41 L. ed. 948,

17 Sup. Ct. Rep. 522. And see Ex parte Gordon, 104 U. S. 515, 518, 519, 26 L. ed. 814, 815; The Charkieh, L. R. 8 Q. B. 197, 42 L. J. Q. B. N. S. 75, 28 L. T. N. S. 190, 21 Week. Rep. 437.

Here the most that can be said against the District Court's jurisdiction is that

[blocks in formation]

uary 17, 1921.

it is in doubt; and in other respects the Submitted December 9, 1920. Decided Jansituation is such that we deem it a proper exercise of discretion to refuse the writ. Nothing need be added to show that the request for a writ of mandamus is on no better footing. Re Morrison, 147 U. S. 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. Rep. 246; Re Oklahoma, 220 U. S. 191, 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. 426; Ex parte Roe, 234 U. S. 70, 58 L. ed. 1217, 34 Sup. Ct. Rep. 722.

Rule discharged and petition dismissed.

[blocks in formation]

of through passenger trains at designated town.

[ocr errors]

detour stop

A railway company cannot, consistently with the commerce clause of the Federal Constitution, be required to detour its two through interstate day passenger trains via a city of some 4,000 inhabitants, instead of running such trains over a cut: off forming a part of the main line, where such city is otherwise served by fourteen local daily passenger trains, seven each way, and where to make the detour will require the railway company to maintain 16 more miles of track at the high standard essential

Note.-On state regulation of interstate or foreign commerce-see notes to Norfolk & W. R. Co. v. Com. 13 L.R.A. 107, and Gloucester Ferry Co. v. Pennsylvania, 29 L. ed. U. S. 158.

On state regulation of stops of interstate passenger and mail trains-see notes to Gulf, C. & S. F. R. Co. v. Texas, 62 L. ed. U. S. 574; Chicago, B. & Q. R. Co. v. Railroad Commission, 59 L. ed. U. S. 926, and Herndon v. Chicago, R. I.

& P. R. Co. 54 L. ed. U. S. 970.

On power to compel stoppage of trains at stations-see notes to Peterson v. State, 14 L.R.A. (N.S.) 293; Minneapolis, St. P. & S. Ste. M. R. Co. 17 L.R.A. (N.S.) 821; St. Louis & S. F. R. Co. v. Langer, 44 L.R.A. (N.S.) 478, and Missouri, K. & T. R. Co. v. State, 29 L.R.A. (N.S.) 159.

IN IN ERROR to the Supreme Court of the State of Missouri to review a judgment which affirmed a judgment of the Circuit Court of Cole County, in that state, upholding an order of the state Public Service Commission directing a rerouting of interstate passenger trains. Reversed and remanded for further proceedings.

See same case below, 277 Mo. 264, P.U.R.1919D, 185, 210 S. W. 72.

The facts are stated in the opinion.

Messrs. William F. Evans and Edward T. Miller submitted the cause for plaintiff in error:

The order of the defendant in error, affirmed by the supreme court of Missouri, constitutes a regulation of, an interference with, and an undue burden upon, interstate commerce.

Illinois C. R. Co. v. Illinois, 163 U. S. 142, 41 L. ed. 107, 16 Sup. Ct. Rep. 1096; McNeill v. Southern R. Co. 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. Rep. 722; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. 121; Herndon v. Chicago, R. I. & P. R. Co. 218 U. S. 135, 54 L. ed. 970, 30 Sup. Ct. Rep. 633; Kansas City Southern R. Co. v. Kaw Valley Drain age Dist. 233 U. S. 75, 58 L. ed. 857, 34 Sup. Ct. Rep. 564; Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309, 35 Co. v. Minnesota, 238 U. S. 340, 59 Sup. Ct. Rep. 560; Great Northern R. L. ed. 1337, P.U.R.1915D, 701, 35 Sup Ct. Rep. 753; Cleveland, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 44 L. ed. R. Commission v. Illinois C. R. Co. 203 868, 20 Sup. Ct. Rep. 722; Mississippi U. S. 335, 51 L. ed. 209, 27 Sup. Ct. sion v. Diffenbaugh, 222 U. S. 42, Rep. 90; Interstate Commerce CommisL. ed. 83, 32 Sup. Ct. Rep. 22.


Mr. James D. Lindsay submitted the cause for defendant in error. Mr. R. Perry Spencer was on the brief:

The order of the Commission is a re

quirement necessary and reasonably adapted to the attainment of proper local service and facilities not otherwise adequately provided by plaintiff, and is

not a regulation of, an interference | connections with all through trains at with, or an undue burden upon, interstate commerce.

Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Houston & T. C. R. Co. v. Mayes, 201 U. S. 321, 50 L. ed. 772, 26 Sup. Ct. Rep. 491; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 296 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398; Mississippi R. Commission v. Illinois C. R. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. 121; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330; Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560; Mississippi R. Commission v. Mobile & O. R. Co. 244 U. S. 388, 61 L. ed. 1216, 37 Sup. Ct. Rep. 602; Missouri, K. & T. R. Co. v. Texas, 245 U. S. 484, 62 L. ed. 419, L.R.A.1918C, 535, P.U.R.1918B, 602, 38 Sup. Ct. Rep. 178; Gulf, C. & S. F. R. Co. v. Texas, 246 U. S. 58, 62 L. ed. 574, 38 Sup. Ct. Rep. 236.

Mr. Justice McReynolds delivered the opinion of the court:

Plaintiff in error's main line extends from St. Louis to Memphis,-305 miles. As originally constructed it turned sharply southeastward at Hayti, Missouri, 220 miles from St. Louis,-ran thence 7 miles to Caruthersville, a city of four thousand people, thence southwestward 9 miles to Grassy Bayou, and thence south. A "cut-off" between Hayti and Grassy Bayou-6 miles-became part of the main line in 1904, and thereafter through freight and night passenger trains passed that way. The through day passenger trains-Nos. 801 and 802-continued to [536] move along the old line until August, 1913, when they were routed over the "cut-off." At the same time two new daily passenger trains were put on and operated between Blytheville, Arkansas, and Cape Girardeau, Missouri, by way of Caruthersville.

Hayti. These locals do not carry equipment of the highest class, but apparently they afford fair facilities for reaching and leaving Caruthersville without serious delay or great inconvenience. If deficient in schedule or equipment there is an easy remedy by means other than detours of the through trains.

The applicable general doctrine has been often considered, and in Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 226, 59 L. ed. 926, 930, P.U.R. 1915C, 309, 35 Sup. Ct. Rep. 560, this court said:


"In reviewing the decision we may start with certain principles as established: (1) It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing, that is, the local conditions being adequately met,— the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command, through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved [537] in the determination of the Federal question whether an order ing an interstate train does or does not directly regulate interstate commerce by imposing an arbitrary requirement. Gladson v. Minnesota, 166 U. S. 427, 41 L. ed. 1064, 17 Sup. Ct. Rep. 627; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep. 330; Cleveland, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 44 L. ed. 868, 20 Sup. Ct. Rep. 722; Mississippi R. Commission v. Illinois C. R. Co. 203 U. S. 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. Rep. 121."

The Missouri Public Service Commission directed the railway company to restore trains 801 and 802 to the route followed prior to 1913, and the state Considering the facts disclosed, we supreme court approved this action. think it plain that the fourteen local pasWe are asked to declare the order in- senger trains meet the reasonable revalid because it unduly burdens inter- quirements of Caruthersville, and that state commerce. The point is well taken. the Commission's order unduly burdens Fourteen local daily passenger trains interstate commerce. Compliance with move in and out of Caruthersville,-sev- it would require the railway to maintain en each way. Some of these make close 16 more miles of track at the high stand

« ForrigeFortsett »