The opinion of the court was delivered by: GALSTON
This is a second application made upon the affidavit of Luis Careaga, Secretary of Embassy and Cousul in charge of the Consulate General of Spain in New York, who seeks on behalf of the Ambassador of the Republic of Spain to open a default and vacate a decree heretofore entered in behalf of the libelant awarding to the libelant possession of the steamship Navemar. An application for the same relief was made on December 16, 1936, and denied with permission, however, to renew the application upon a proper showing.
This affidavit recites that there is an existing Treaty between Spain and the United States (33 Stat. 2105, 2111, art. 12) by the terms of which there is granted to the envoys, ambassadors, ministers, charges d'affaires, and other diplomatic agents of each of the countries the same favors, privileges, and immunities and exemptions which are granted or shall be granted to the most favored nation.
It is alleged that the steamship Navemar is a Spanish vessel within the meaning of article 11 of the Treatly, in that the steamship was and is under the flag of Spain and is furnished with the papers which the laws of Spain require.
It appears that on October 10, 1936, a decree relating to this steamship was issued by the Minister of Communications and Merchant Marine of the Republic of Spain, which decree, among other matters, recites that the Republic of Spain attaches the steamship Navemar of the Compania Espanola De Navegacion Maritima, S.A., for use of the National Public Service, and that it be managed by the Minister of Communications and Merchant Marine through the General Bureau of Merchant Marine. It was decreed that the attachment and the consequent change of authority would be noted in the official registry of vessels and in the central registry of the General Bureau and on the documents of the vessel, and in the correspondng consular registries.
The Careaga affidavit further sets forth that on November 25, 1936, the steamship arrived in the port of New York in the command of her master, Manuel Martinez, acting for and in behalf of the Republic of Spain and under the direction of the Minister of Communications and Merchant Marine through the General Bureau of the Merchant Marine; that on said day Martinez, as master, deposited the ship's roll with Careaga; and that the ship's roll is now in his possession. Careaga avers that the ship's roll shows that the Navemar arrived at Buenos Aires, Argentine, on October 9, 1936; that the vessel departed on October 16, 1936, for Rosario, Argentine, and arrived at Rosario on October 18, 1936, returning to Buenos Aires on October 26, 1936, from which port she sailed for New York on October 28, 1936. It is averred that the ship's roll discloses that Antonio I. Serrano, Spanish Consul in the port of Rosario, indorsed on the ship's rolls a legend which translated reads: "Through a cable dated 26th of the inst. month from the Director General of the Merchant Marine, this ship has become the property of the State through attachment according to the decree of October 10. 1936."
Careaga avers that he is informed and believes, though the source of his information is not set forth, that on October 28, while the steamship was at Buenos Aires, Amador Sanchez, Acting Consul General at said port, made an indorsement on the ship's register reading as follows: "Through a cable dated October 15, 1936, to the Spanish Embassy in this capitol, His Excellency, the Minister of State, notifies that this vessel has become the property of the Spanish Government through a decree of attachment published in the Official Gazette dated the 11th of the instant month."
Accordingly, Careaga alleges that he is informed and believes -- though no other source of information than the foregoing is disclosed -- that the sailings of the Navemar after November 15, 1936, were made at the direction and under the control of the representatives of the Spanish Republic.
On the arrival of the vessel in New York, Careaga, acting under instructions from the Ambassador of the Republic of Spain, his excellency Fernando de Los Rios, instructed Martinez that the master should await further instructions from Careaga as to any further use of the steamship Navemar. On November 28, 1936, Careaga instructed Martinez to present a detailed account of the expenses of the Navemar covering salaries, food, and the bill for the work and repairs of minor importance that the vessel might undergo. Thereafter Martinez delivered to Careaga an account of the crew of the boat and delivered a statement setting forth contemplated repairs. Careaga, so he recites, on behalf of the Republic of Spain, made partial payments on account of salaries and wages of the master and crew and "manned, victualed and supplied the vessel." On December 7, 1936, Careaga relieved Martinez of command and appointed Thomas Pasqual to act as master.
It is alleged that the vessel was held in New York by representatives of the Spanish Government for use by the Spanish Government to carry cargo from New York to Spain for the purpose of the Spanish Government, it being the intention of the government to use said vessel for such public purpose. Concluding, Careaga alleges that when the libel herein was filed, the vessel was in the possession of the Republic of Spain and subject to its direction and control for use in the national public service and that accordingly the vessel was not subject to suit or process without the consent of the Republic of Spain and in the absence of such consent is immune from the process of the court.
The question before me is whether in the present showing the moving papers meet the deficiencies which led to the denial of the former application. Exceptions are filed by the libelant. Briefly these exceptions recite that the moving papers are insufficient in setting forth ownership by the Republic of Spain, possession by the Republic of Spain, public use or operation of the vessel by the Republic of Spain, either in Argentine or in New York, or indeed at any time or place.
Reply affidavits are filed by the libelants. Martinez, the master of the vessel, deposes that neither the Spanish Consul at Rosario nor at Buenos Aires took possession of the Navemar nor did either of them inform him that they wished to take possession of the vessel or had any instructions so to do. He alleges that it is the usual practice of Spanish ship masters of privately owned merchant vessels to deposit the ship's roll with the consul on arriving at a port and receive it back before sailing, the ship's roll being merely a record of the arrivals and sailings of the vessel, together with a record of the kind of cargo carried, passengers, and the signing on or enrollment of each member of the crew. The ship's roll is not a document of title nor of possession. Neither is the ship's register a document of title or possession. The register shows the flag or nationality of the vessel as determined by the place where her home port is situated. In the ordinary course of business on arrival at Rosario, Martinez deposited the ship's roll with the consul at that port, which in ordinary course would have been returned to him just before sailing. However, the consul's office was closed for the day. He was advised by shippers of the linseed cargo at Rosario that although the cargo intended to be shipped had not all yet been loaded, it was imperative that the Navemar sail at once because the water was going down in the river and she would be delayed too long if she did not sail immediately. The shippers agreed to make arrangements to deliver the rest of the linseed cargo to the Navemar when she arrived at Buenos Aires, and the representative of the Linea Sud-Americana, Inc., the charterer of the steamship Navemar, informed him that he would call at the consul's office at Rosario when it opened the next morning, to obtain the ship's roll and would send it by mail to Martinez, c/o Linea Sud-Americana, Inc., at Buenos Aires. Accordingly, the Navemar sailed at 5 p.m., October 23, 1936, without her ship's roll. After the Navemar's return to Buenos Aires, arriving there at 2 p.m. October 24, 1936, he was informed that the Spanish Consul at Rosario had declined to deliver the ship's roll to the agent of the Linea Sud-America, Inc., and would deliver it only to the master of the Navemar. Subsequently the Spanish Consul General at Buenos Aires obtained the ship's register from the master and returned both it and the ship's roll to him. The master noted the indorsement thereon made by the Consul at Rosario and on the register by the Consul General at Buenos Aires. The latter said he had no instructions to make with respect to the Navemar and that she should continue her voyage. Nothing was said about taking possession. The Spanish Consul General at Buenos Aires, however, did tell Martinez to notify Madrid that he was sailing, and accordingly Martinez did cable the General Director of Merchant Marine at Madrid, on October 29, 1936:
"Authorized by Consul General here sail for New ...