¹ See The Navemar, 17 F. Supp. 495, 647, 18 F. Supp. 153, 90 F. (2d) 673; Compañía Española de Navegación Maritima v. The Navemar (certiori granted), 302 U. S. 669; same case, 303 U. S. 68, this Journal, Vol. 32 (1938), p. 381. The Navemar, 24 F. Supp. 495, 102 F. (2d) 444. See also New York Times, April 23,1939, p. 22.

² “The libellant, a Spanish corporation, filed a possessory libel against the steamship Navemar in rem, and against five members of the crew of that vessel in personam, alleging that libellant had been wrongfully deprived of possession of the vessel by those members of her crew. A decree by default was entered on December 14, 1936. The Consul General of Spain in New York sought on behalf of the Spanish Ambassador to open the default and vacate the decree and filed a suggestion alleging that the court had no jurisdiction because the Navemar was the property of the Republic of Spain by virtue of a decree of attachment appropriating the vessel to the public use and was then in the possession of the Spanish Government, and asking that the court direct delivery of her to the Spanish Consul General of New York.

“The District Court ‘allowed a full hearing upon the suggestion and upon reply affidavits submitted by libellant in the course of which there was opportunity for the parties to present proof of all the relevant facts.’ Compañía Española v. Navemar, 303 U. S. 68, 72, 58 S.Ct. 432, 434, 82 L. Ed. 667. The court found that the Navemar was never in the possession of the Spanish Government prior to her seizure by the five members of her crew in New York Harbor and likewise that she was not a vessel in the public service of Spain and accordingly denied the petition to intervene. Upon the appeal, we reversed its order and held that the suggestion of the Ambassador was binding on the court and that the evidence had established a possession of the Navemar by the Spanish Government which rendered her immune from seizure in the possessory action. The Navemar, 2 Cir., 90 F. 2d 673. The Supreme Court granted a writ of certiorari, reversed the order of this court and affirmed the order and findings of the District Court holding that possession of the Navemar was not in the Spanish Government, but permitted the Ambassador to intervene for the purpose of asserting the Spanish Government’s ownership and right to possession of the vessel. The Navemar, 303 U. S. 68, 58 S. Ct. 432, 436, 82 L. Ed. 667.

“Thereafter, in conformity with the decision of the Supreme Court, the Spanish Ambassador filed a new intervening petition in which he alleged that by virtue of a decree promulgated by the President of the Republic of Spain, ownership and the right to possession of the Navemar was vested in that Republic. The libellant filed an answer denying the allegations of this petition. The issues thus raised came to trial both upon the evidence taken on the former hearing and upon additional proofs adduced at the new trial.” (102 F. 2d 444, 445-446.)

³ “Meanwhile the Department of State had refused to act upon the Spanish Government’s claim of possession and ownership of the Navemar, 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 char acter.’ . . . 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.” (Compañía Española v. Navemar, 303 U. S. 68, 71, 75.)

⁴ As the Supreme Court pointed out, in certain earlier cases (Ex parte Muir, 254 U. S. 522, and The Pesaro, 19 Fed. Cas. No. 11, 199) the ambassador of the intervening government had 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.” (Id., 76.)

⁵ See The Navemar, 18 F. Supp. 153, 157.

⁶ The Navemar, 90 F. (2d) 673, 677, where it was said: “Having dedicated the vessel to the public service by subjecting it to its control, the Spanish Government must be regarded as at least in constructive possession of her which, for purposes of immunity, is as efficacious as actual possession asserted through the government’s own officers.”

⁷ Compañía Española v. Navemar, 303 U. S. 68, 74-76. Declared the Circuit Court of Appeals, March 6, 1939: “We cannot see that the testimony taken at the second trial was sufficiently different from the former proof to establish possession of the Navemar in the Spanish Republic. If, as the Supreme Court held, that government did not acquire possession of the ship at Buenos Aires, nothing occurred thereafter which changed the situation.” (The Navemar, 102 F. 2d 444, 446.)

⁸ Compañía Española v. Navemar, 303 U. S. 68, 75, where the court cited Ex parie Muir, 254 U. S. 522; The Pesaro, 19 Fed. Cas. No. 11,199; and Berizzi Bros. Co. v. The Pesaro, 271 U. S. 562.

⁹ The Navemar, 102 F. 2d 444, 446.

¹⁰ 102 F. 2d 444, 446.

¹¹ Id., 448, where the court invoked and quoted the decision of the Supreme Court in Crapo v. Kelly, 16 Wall. 610, 631.

¹² The concurring opinion of Mr. Justice Stone in the case of United States ». Belmont, 301 U. S. 324, 334, 335, was referred to as implying that there was no policy in the State of New York against enforcing an expropriation decree merely because it furthered the governmental interest of a foreign state. It was also said: “He adds, however, that New York should be free to enforce a local policy subordinating the claim of a foreign government to local suitors. Accordingly the decree might be disregarded if it involved taking property within the State of New York without compensation.” (Id., 449.)

¹³ Id.

¹⁴ Id.

¹⁵ 102 F. 2d 449.

¹⁶ Id., 450.

¹⁷ Id.

¹⁸ New York Times, April 23, 1939, p. 22.