Appeal from the District Court of the United States for the Eastern District of New York.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
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 Spainsh 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." Compania Espanola 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.
Justice Stone, in writing for the Supreme Court, thus referred to the findings of the District Court on the first hearing: "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."
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 libellant continued to retain possession and paid both the officers and the crew. The only significant evidence tending to show governmental possession which is claimed by the intervenor to be new consists of certain alleged acts and declarations by the master of the Navemar that were either denied by him or contradicted by other declarations and acts on his part. For example, Garcia, one of the crew, testified that the master Martinex called the crew together at Buenos Aires, told them that he had received a cable from the Director General of navigation at Madirid informing him of the attachment of the Navemar and warned them that he (Martinez) was the legitimate representative of the government and that they would be required to obey his orders or suffer return or Spain for punishment. This was denied by Martinez and the trial judge believed his testimony.
The letter of Martinez to the charterer (Libellant's Exhibits 6 and 7) was in the record at the former trial, likewise the receipt for $300 given by Martinez to the Consul General of Spain in New York to pay Martinez for advances to the crew. In the opinion of this court (The Navemar, 2 Cir., 90 F.2d 673, 677) these documents were referred to as part of the evidence which we thought showed possession on the part of the Spainsh Government. The Supreme Court differed with us and agreed with the District Court, and the findings of the District Judge on the new trial are to the effect that these documents did not show possession on the part of the Spanish Government or offset other evidence that Martinez was acting for the owner of the vessel.
The towage receipt (Petitioner's Exhibit B) signed by Martinez as agent for the Consul of Spain was to acknowledge that towage had been furnished by Dalzell Towing Company from Edgewater, New Jersey, to Red Hook Anchorage, New York. Why he signed the receipt in the form adopted is doubtless hard to understand, but he swore that the ship was moved from Edgewater to Red Hook Flats, Brooklyn, under instructions of the owner. The District Court found that this, with all the other evidence, was insufficient to show possession in the Spanish Government.
The further contention is made by the Spanish Ambassador that the interference by the Consul with the making of repairs at New York showed that the Spanish Government was in possession. The trial judge found to the contrary and we are required to adopt the same course in view of the fact that the matter was before the court on the former trial and was discussed by the judge in his opinion in connection with his findings which the Supreme Court affirmed. Moreover, the Supreme Court referred back only the question of title and right to possession for determination at the new trial, and not the question whether the Navemar was immune from judicial process.
The matter to be determined upon this appeal is whether the Spanish Ambassador established title in or right to possession of the ship. We think that he established such title and right to possession and that his intervening petition should, therefore, prevail.
The title and right to possession of the Navemar was transferred to the Spanish Repulic by means of an executive decree dated October 11, 1936, published by that government in the Gaceta de Madrid.
The decree recited that it was issued for the same reasons that caused the expropriation of several ships and their subjugation to the national public service by means of corresponding decrees in accord with the Council of ministers and at the proposal of the Ministry of Communications and Merchant ...