THE ATTUALITA, 238 F. 909

PER CURIAM. The appellee steamship makes five contentions: 1. The decree below is not final, and therefore not appealable. The libel in this case is in rem. The vessel by the decree below is released from arrest. This in effect terminates the proceeding as against her. Counsel upon both sides seem to be at one that, as a practical matter, if this decree remains unreversed, nothing else can be done in the court below which would be worth doing.

The question whether a decree is final and appealable is not determined by the name which the court below gives it, but is to be decided by the appellate court on consideration of the essence of what is done by the decree. Potter v. Beal et al., 50 Fed. 860, 2 C. C. A. 60. 2. The steamship says that the question involved,is one of jurisdiction. The appeal should therefore have been taken to the Supreme Court.

The objection which prevailed in the court below was not to the jurisdiction of the District Court of the United States as a federal court, but was an objection which went equally to the jurisdiction of any court, state or federal, and for that reason, the appeal to this court was properly taken. 3. It is asserted that the steamship is immune to proceedings in any court.

It is admjtted that to give this immunity it will be necessary to take a step beyond that which has been taken in any decided case, although it is argued that the logic of some decisions heretofore made require'that step. - We are frankly reluctant to take it. There are many reasons which suggest the inexpediency and the impolicy of creating a class -of vessels for which no one is in any way responsible.

For actions of the public armed ships of a sovereign, and of those, whether armed or not, which are in the actual possession, custody, and control of the nation itself, and are operated by it, the nation would be morally "responsible, although without her consent not answerable legally in her own or other courts. For the torts and contracts of an ordinary vessel, it and its owners are liable. But the ship in this case, and there are now apparently thousands like it, is operated by its owners, and for its actions no government is responsible, at law or in morals.

The persons in charge of the navigation of the ship remain the servants of the owners and are paid by them. The immunity granted to diplomatic representatives of a sovereignty, to its vessels of war, and under some circumstances to other property in its possession and control, can be safely accorded, because the limited numbers and the ordinarily responsible character of the diplomats or agents in charge of the property in question and the dignity and honor of the sovereignty in whose services they are, make abuse of such immunity rare.

There will be no such guaranty for the conduct of the thousands of persons privately employed upon ships which at the time happen by contract or requisition to be under charter to sovereign governments. 4. The steamship says that in any event her right to immunity is a political question, which has been passed upon by the executive branch of the government. A comparison of the suggestion which was filed in The Exchange, 7 Cranch, 116, 3 L.

Ed. 287, with that in this case, shows quite clearly that, while in The Exchange the executive ^demanded the ship’s release, it has in this case carefully refrained from doing anything of the kind. 5. It is said that in the exercise of a sound discretion jurisdiction should be declined. The ship flies a foreign flag. The libelant is a subject of another foreign monarch. The tort complained of was committed upon the high seas. We think this contention foreclosed by what the Supreme Court said in The Belgenland, 114 U. S. 368, 5 Sup. Ct. 860, 29 L. Ed. 152.

For these reasons, the decree below, dismissing the vessel from arrest, must be reversed, and the case remanded for further proceedings not inconsistent with this opinion. Reversed. Note. — The opinion of Waddill, District Judge, delivered in the court below, is as follows: Gentlemen, we all appreciate the importance of this case, and I would like to have more time to consider it than I can have, if X dispose of it at this time.

In that connection, however, I will say that it has been before me during the last two weeks several times, and has been argued on two occasions previous to this, and I think I can decide it now, which seems desirable, as anything that is to be done with respect to a war vessel, or a vessel used in connection with the war, is in its nature urgent.

The case is one, briefly, in which the libelant, as sole owner of the Greek steamship Mina, seeks to recover damages against the respondent ship, At-tualita, for damages sustained in collision, on or about the 29th da.y of July, 1016, at approximately half past 2 o’clo.ck in the morning, in the waters of the Mediterranean Sea, some 30 miles east of Gibraltar, during the existence of a thick fog. Libelant claims damages in the sum of $800,000, the ship and cargo having been wholly lost. After the Attualita arrived in Hampton Bo ads, seizure was regularly had.

Appearance was made by the Italian government, through the interposition of the Attorney General of the United States, as amicus curias, and also by counsel likewise appearing as amicus curiae, and counsel also specially appearing for the owner of the Attualita. I have examined carefully the cases submitted to me to-day. The Davis, 10 Wall. 15, 19 L. Ed. 875; The Fidelity, 16 Blatchf. 569; Fed. Cas. No. 4,758; Long v. The Tampico (D. C.) 16 Fed. 491; The Athanasios (D. C.) 228 Fed. 558; The Luigi (D. C.) 230 Fed. 493.

The Frankmere, a.n unreported decision of this court, is more like the present case than any other I have seen. There the government, however, did not appear, which distinguishes it materially from this case. If the Italian owner was here seeking the release of this ship, and his government did not interpose, I would not have the slightest doubt as to what should be done. The first three cases above cited, while very interesting, do not bear especially upon the question here.

It will be found that they turn either upon the fact of the assertion of a claim for salvage, for saving the res involved, or that the government was not actually in possession of or had control of the property, or that the same was not devoted to public use in connection with the government’s operations. In the last two cases, cited from 228 and 230 Fed., respectively, the facts of the requisitions are not fully shown, and the opinion in each case, as bearing on the questions under consideration here, apparently, is obiter dicta.

I apprehend the appearance of the Italian government, in the manner indicated, is sufficient; and the appearance of the owner is entered specially to raise the question of the jurisdiction of the court. The first question is as to the effect of the appearance by the Italian government. Counsel insist that the appearance and claim, and assertion of sovereignty, is all that is necessary and required, and, when that is done, the court should take no further action — citing The Exchange, 7 Cranch, 116, 3.L. Ed. 287; The, Parlement Beige, 4 Prob. Div. 129; Id., 5 Prob. Div. 197.

I have no doubt that, where a government owns the res, its appearance and claim is all that is necessary to end the proceeding, but that is not this ease. The .Italian government makes no claim of ownership to the ship, but merely that it is requisitioned for governmental purposes, entitling it to the possession thereof, thus necessarily bringing up the terms and conditions of the requisition. Hence the court should put the government to proof, to show its connection with the ship in such way as to establish its freedom from the seizure.

The effect of the requisition must be considered in the light of the use to be made of the ship. Undoubtedly, when this ship was attached, she was under the management of her owners, so far as manning and operating her were concerned. But she was at the same time under requisition by, and under the control and direction of, the Italian admiralty, taking orders therefrom, and at the time of the seizure was in this harbor under such orders, en route to Baltimore for cargo for that government.

Under these circumstances, can the libelant maintain the attachment, without depriving the Italian government of the possession and use of the ship, assuming the requisition to have been regularly made? I think that right has been established, and, that being so, this court should be very slow to interpose, especially at the instance of private litigants of another country (The Belgenland, 114 U. S. 355, 362, 5 Sup. Ct. 860, 29 L. Ed. 152), and seize the ship, and take it from the possession of the Italian government. This is my view.

It may be a great hardship on the libelants; but it is not for me to determine the course of the Italian government. It may have been necessary, in order to preserve its rights to the possession of the ship for governmental purposes, to intervene in these proceedings, and for the court of the United States to wrest the ship’s possession from her would tend to disturb the international comity existing between,the two nations, which are now friendly. Especially is this true when the Italian government is engaged in war.

The attachment, so far as the Italian government is concerned, will be abated, and the ship released. (gc^Por other cases spe same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes