The opinion of the court was delivered by: MOSCOWITZ
The Court has conducted a trial upon a libel for possession under which the Steamship Elqui (ex Selma) was arrested while unloading in Brooklyn, within the jurisdiction of this court. By consent of the parties, the Court reserved decision on an application made to it to exercise its discretion to decline jurisdiction on the ground that the character of the parties and the subject matter involved make another forum proper.
Prior to the invasion of Denmark on April 9, 1940, the steamship Selma (now Elqui) was owned by libellant's predecessor, a Danish corporation. Upon the invasion, all merchant ships flying the Danish flag received official instructions to take refuge in neutral ports pending an agreement with the Allied authorities which would prevent such ships from being used for the benefit of the Axis. Lying idle in Chilean waters, on May 8, 1941 the Selma was requisitioned by the Republic of Chile pursuant to an official decree issued by the Minister of Foreign Relations and Commerce. This decree, which incorporated by reference the provisions of a similar previous document, provided as follows:
'Considering the premises:
'That due to the fact that tonnage has been considerably reduced in marine traffic from Chile to foreign countries with a consequent disturbance to the national economy;
'That the situation is due immediately and directly to the war taking place in Europe, and in which Chile has declared herself neutral;
'That the tonnage of the National Merchant Marine and that given by other neutral nations does not compensate this lack;
'That since it is impossible to determine the length of this conflict, it is the duty of the Government to seek means whereby trade will remain uninterrupted, indispensable for national welfare;
'That the only possible means whereby satisfaction can be given this urgent necessity is to avail ourselves of the tonnage lying idle of the foreign merchant ships which have taken refuge in the ports of this Republic for several months;
'That the Government has agreed upon this measure in order to ensure the welfare of the Republic and to carry on commercial interchange with other neutral nations;
'That this measure, urgent, temporary and eventual, will in no way damage the legitimate owners of said vessels, and will not entail any forced obligations to the personnel on board because the intentions of the Government of Chile are to adjust, opportunely and directly with each of the legitimate shipowners or representatives, indemnization for usage and provision for maintenance of the personnel referred to, who will enjoy, for as long as they care to remain in Chile, the same treatment accorded the subjects of free nations resident in neutral territory.
'1) Be it declared of public utility for the duration of the present war, the following Danish merchant vessels anchored in the port of Talcahuano: FRIDA, LOTTA and HELGA.
'2) The above mentioned vessels are subject as from this date to the regulations contained in our merchant marine, insofar as they are applicable and will sail with the national flag.'
It appears to be the position of the libellant that the decree under which the Chilean government became entitled to the use of the Selma was limited to 'the duration of the present European war' and that since in libellant's view the war in Europe has terminated and is no longer in duration, the Danish corporation is entitled to possession of the ship. It is not necessary for this Court to determine whether the Chilean government acquired the use or the title to the ship under its decree, as only the question of the right to possession is involved in this proceeding. The Steamship Elqui is now registered in the Chilean National Merchant Marine and the certificate is that it is under the 'tuicion' (i.e. guardianship or protection) of the ...