The opinion of the court was delivered by: GALSTON
Prior proceedings in this cause bearing on the application of the Spanish Ambassador to intervene and to have the decree of this court, which awarded possession of the Steamship Navemar to the libellant, vacated, are reported in The Navemar, D.C., 17 F.Supp. 647; Id., D.C., 18 F.Supp. 153; Id., 2 Cir., 90 F.2d 673, and in Id., 303 U.S. 68, 58 S. Ct. 432, 82 L. Ed. 667. The opinion of the Supreme Court concludes with the instruction that (page 436):
"The respondent will be permitted to intervene for the purpose of asserting the Spanish government's ownership and right of possession of the vessel, and the order of the District Court will be modified accordingly."
Pursuant to the permission granted by an order of this court, entered on he mandate of the Supreme Court, Fernando de los Rios filed a special claim and intervention.
It must be observed that much that is now urged by the intervenor was previously considered by this court. It was determined on the basis of the showing heretofore made that no one had taken possession of the Navemar in behalf of the Spanish Government. Mr. Justice Stone, writing for the Supreme Court, said:
"The District Court concluded, rightly we think, that the evidence at hand did not support the claim of the suggestion that the Navemar had been in the possession of the Spanish government. The decree of attachment, without more, did not operate to change the possession which, before the decree, was admittedly in petitioner. To accomplish that result, since the decree was in invitum, actual possession by some act of physical dominion or control in behalf of the Spanish government was needful, The Davis, 10 Wall. 15, 21, 19 L. Ed. 875; Long v. Tampico, D.C., 16 F. 491, 493, 494; The Attualita, supra [4 Cir., 238 F. 909]; The Carlo Poma, 2 Cir., 259 F. 369, 370, reversed on other grounds 255 U.S. 219, 41 S. Ct. 309, 65 L. Ed. 594, or at least some recognition on the part of the ship's officers that they were controlling the vessel and crew in behalf of their government. Both were lacking, as was support for any contention that the vessel was in fact employed in public service. See Long v. Tampico, supra, 16 F. 491, 493, 494; cf. Berizzi Bros. Co. v. S.S. Pesaro, supra [271 U.S. 562, 46 S. Ct. 611, 70 L. Ed. 1088]."
So it becomes important to determine to what extent the additional proof offered by the Spanish Ambassador meets the tests suggested.
For one thing it appears when the Navemar finished unloading at Edgewater, New Jersey, on December 2, 1936, and was shifted to Red Hook Anchorage, New York, by the Dalzell Towing Company, Martinez, her master, signed the towage slip as follows:
"Manuel Martinez, Agente Consulado de Espana."
But on the stand he testified that his orders for the transfer of the Navemar from Edgewater to Red Hook Flats were given to him by Garcia & Diaz, agents of the Navemar; just why he signed the towage receipt as agent for the Spanish Consul is not clear, for there was controversy at that time between the master and Consul concerning the latter's interference with the crew. The master testified:
"It is because the company of the Spanish Maritime Navigation, I had to place myself subject to their orders to be able to load, and as I could not do it because Mr. Consul had raised the crew -- had spoken to the crew to go on strike, he told them to deny themselves to help in loading the boat so that then I went to the Sud Americana Company so that they could pay the receipt of that ticket -- I could not pay anything, that you don't allow the ship to work on my account, by means of the Sud Americana Company, or for the account of the Sud Americana Company, because if the Consul wishes to make himself the owner of the ship, he is going to be afraid of the expense, and as I am not the owner, as he has said, because he told the crew not to work for me and unless the trouble is settled, as we had to bring the case to court, then I shall pay because then the boat will be mine when they deliver to me, and then you deny the fact that you wish to work."
The master's testimony conforms with the statement in his affidavit, made January 11, 1937, now in evidence, wherein he recites that it was under instructions from the owner of the Navemar, the libellant, that the ship was moved from Edgewater to the anchorage at Red Hook Flats, Brooklyn.
Again the intervenor urges that the receipt by Martinez of the sum of $300 from the Spanish Consul at New York must be interpreted as evidence of recognition of control by the Spanish Government. The paper reads:
"Received from the Spanish Consul General in New York the amount of $300., as advanced for the expense of the vessel under my command; New York, December 2, 1936, Master of the Steamship Navemar."
This money was paid by the Consul solely as a reimbursement to Martinez for moneys which he had advanced to members of the crew. The receipt is not new evidence. It is found in the Martinez affidavit in the record considered by both the Circuit Court of Appeals and the Supreme Court. In that affidavit Martinez explains that in a conference held with Careaga, Spanish Consul in New York, he informed Careaga that the latter's attempt to countermand orders for loading "given by the time charterer on authority from Garcia & Diaz, representing the real owner," was likely to cause him personally a considerable financial loss because he had "advanced members of the crew money to be repaid" when they collected their salaries, "as I had been in the habit of doing until their salaries were settled at the end of the voyage or on owners' instructions before a consul, and I had no money of my own as I had used all the money I had in making these advances; * * * that since Mr. Careaga was not obtaining authority of the owners to settle the crew's wages and was apparently not going to discharge them from their shipping contract with the owners, and as he had mentioned that he was going to ...