The opinion of the court was delivered by: GALSTON
An order was obtained by the libelant calling upon the respondents to show cause why they should not be punished for contempt in failing to obey the decree in this cause filed on December 14, 1936.
On December 7, 1936, the libel was filed, and alleges, among other things, that the members of the crew of the steamship Navemar, the respondents cited in this order to show cause, unlawfully deprived the libelant of the possession of the steamship Navemar and seized the vessel while the master was temporarily on shore, and threatened to detain the master if he should again return to the steamship and seek to exercise any authority on behalf of the libelant.
The libel sought to have the respondents named therein, and any and all other persons who claimed to have an interest in the steamship Navemar, show cause why possession of the steamship should not be delivered to the libelant as the owner thereof.
No answer having been filed by any of the respondents or by any claimant, the libelants adduced proof in support of the allegations of the libel and procured accordingly a default decree on December 14, 1936. This decree adjudged the libelant to be entitled to the Navemar and directed the marshal to deliver possession of the ship to the libelant. The decree contained also the following provision: "Further ordered, adjudged and decreed that any and all persons now on board the Spanish steamship 'Navemar' who claim any interest in her adverse to the libellant, or whom the libellant desires to have removed from the said Spanish steamship 'Navemar,' be and they hereby are directed to leave the Spanish steamship 'Navemar.'"
Affidavits in support of this motion are made by Marcelino Garcia, Jr., a representative of the libelant, and Manuel Noriega, an interpreter who accompanied Captain Martinez, Chief Engineer Lecumberri, and Garcia. From these affidavits it appears that on reaching the deck they were met by the chief deputy United States marshal for the Eastern District of New York and another deputy marshal. On deck there were also three or four police officers of the City of New York. At the request of the chief deputy United States marshal, the interpreter explained to the members of the crew present that the chief deputy marshal had an order from this court to execute, and that all members of the crew should be present when the order was read. At that time the respondent Arturo Garcia, second engineer, stated that the most important members of the crew were ashore, referring, so the Noriega affidavit says, to the "committee and the master of the boat." There ensued a colloquy between this second engineer and Captain Manuel Martinez in which the latter claimed to be master of the Navemar. Garcia disputed that assertion and stated that the crew did not recognize him as such and moreover that they had their own master.
The Noriega affidavit continues by averring that thereafter the crew on board the Navemar having been assembled, the order of the court, as translated into the Spanish language, was read by him in its entirety to the respondents. Noriega alleges that at the marshal's instruction he requested the crew to leave the boat, and added that the master, the chief engineer, and Mr. Garcia, Jr., were taking possession for the owner. Thereupon Arturo Garcia, speaking for the crew, contended that they would not obey any order excepting that of the Spanish Consul or of the ship's committee, and that they "would resist by force any effort of anybody else to take possession of the 'Navemar.'"
It appears also from the Noriega affidavit that the chief deputy marshal, having been informed of the crew's answer, maintained that he had discharged his mission by giving libelants possession of the boat. Noriega protested that the marshal was not delivering possession to the libelant because he had not compelled those persons claiming possession against the libelants to leave the ship. After further discussion the marshals left the vessel, as did the two affiants.
The affidavit of Arturo Garcia, filed on behalf of the respondents, admits that he acted as spokesman for the members of the crew. The affidavit is not entirely satisfactory because it certainly does not meet the averment in the Noriega affidavit that Arturo Garcia contended that the crew "would resist by force any effort of anybody else to take possession of the 'Navemar,'" although Garcia does admit that he told Noriega: "We could not recognize his authority over that of the Spanish Consul, who has complete control over the officers and crews of Spanish steamships in foreign ports."
Garcia further says that he did not think that he was disobeying any order of this court "because I was not told that the court requested our appearance in court." Of course, that is wholly irrelevant, for the decree did not request the presence of the crew in court. Apparently, though, Garcia was not clear in his own mind as to what was going on, for he says: "The only dispute which arose was whether or not we, as crew, would recognize Martinez as master of the 'Navemar.'"
From the affidavit of Louis Careaga, Acting Consul General in New York for the Republic of Spain, it appears that on December 7, 1936, he removed Manuel Martinez as master of the Navemar because of acts of insubordination, and that on the same day he appointed Tomas Pascual Peris master of the steamship. Mr. Careaga says: "At no time was I advised by anyone that this Honorable Court had issued any orders requesting the members of the crew of the Spanish steamship 'Navemar' to leave that ship for any reason. Up to the time that the United States marshal and the former Captain Martinez went on board the 'Navemar' on December 14, 1936, I had not rescinded my orders that the officers and crew of the steamship 'Navemar' should remain on board the ship. Any misinterpretation that might have arisen I am sure must be due to conflict of laws involved in the case."
The concluding affidavit submitted by the respondents is that of Thomas A. McDonald, the attorney for members of the crew. Mr. McDonald recites that he was informed by Mr. Lindsey, chief deputy
United States marshal, that he had not ordered the crew of the steamship Navemar to leave the vessel, and "when he left the said vessel there were no orders which he had given which were not obeyed."
Various exhibits are submitted in reply by the libelant, among which is the chief deputy marshal's return. The return recites: "I then told the crew that the libellants, the Compania Espanola de Navegacion Maritima, S.A. were in possession of the steamship 'Navemar' and from then on Captain Martinez was in charge of the steamship 'Navemar" on behalf of the libellant. I had my ...