¹ "State Immunity and the Requisition of Ships during the Spanish Civil War: I. Before the British Courts," this JOUBNAL, Vol. 35 (1941), pp. 263-281.

² "Concerning the Navemar," this JOUBNAL, Vol. 33 (1939), p. 530.

³ The decisions of continental European courts are not discussed in the present article since they are adequately treated by Jaenicke, "Die Frage der Immunitat in der Rechtsprechung turn spanischen Biirgerkrieg," 9 Zeitschrift filr auslandisches djfentliches Recht und VSlkerrecht (1939), pp. 354-382; and Stefan A. Riesenfeld, "Sovereign Immunity of Foreign Vessels in Anglo-American Law: The Evolution of a Legal Doctrine," 25 Minnesota Law Review (1940), p. 62.

⁴ Decision unpublished. When the decree adjudging possession of the vessel to the libelant was read by the chief deputy marshal to the crew, the spokesman for the latter stated that they would not obey any orders excepting those of the Spanish Consul or of the ship's committee, and that they would resist any effort on the part of others to take possession of the vessel. Contempt proceedings were then brought, but the district court denied the motion on the ground that the nature of the alleged contempt was not civil but criminal, and that since the crew had not been ordered by the marshal to leave the vessel, no criminal contempt had been committed. The Navemar, Compafiia Espafiola de Navegaci6n Maritima, S. A., v. Crespo, el al., 17 F. Supp. 495 (E.D.N.Y. 1936).

⁵ The Navemar, 17 F. Supp. 647 (E.D.N.Y. 1936). The failure of the Spanish Ambassador to act earlier is explained by the fact that on being informed of the filing of the libel he had, on December 10, 1936, addressed a note to the Secretary of State requesting that steps be taken to obtain the release of the vessel. Pending the exchange of communications, it was deemed inadvisable by him to appear in the proceedings. The Department of State declined to take the requested action. See p. 42, infra.

⁶ The Navemar, Compafiia Espafiola de Navegaci6n Maritima, S. A., v. Crespo, et al., 18 F. Supp. 153 (E.D.N.Y. 1937).

⁷ The Navemar, 90 F. (2d) 673 (CCA. 2d, 1937).

⁸ In addition to raising the plea of immunity, the appellant challenged the jurisdiction of the court on the ground that by Art. XXIII of the Treaty of 1902 between the United States and Spain [33 Stat. 2106, 2116], matters relating to the "internal order of merchant vessels" and to "differences which may arise either at sea or in port between captains, officers and crews," are placed within the exclusive cognizance of the consuls of the respective nations. This ground was dismissed with the observation that the issue was one of title or ownership and not the mere settlement or adjustment of internal differences on the vessel. 90 P. (2d) 673, 676.

⁹ 302 U. S. 669 (1937).

¹⁰ Compafifa Espafiola de Navegaci6n Maritima, S. A., v. The Navemar, et al., 303 U. S. 68, 58 S. Ct. 432, 82 L. Ed. 516 (1938); this JOURNAL, Vol. 32 (1938), p. 381.

¹¹ The Navemar, 24 F. Supp. 495 (E.D.N. Y. 1938).

¹² The Navemar, Compafiia Espafiola de Navegaci6n Maritima, S. A., v. Crespo, et al. (de los Rios, Spanish Ambassador, Intervener), 102 F. (2d) 444 (CCA. 2d, 1939).

¹³ See Linea Sud-Americana, Inc., v. 7,295.40 Tons of Linseed, 29 F. Supp. 210 (S.D.N.Y. 1939), which takes the same view concerning the effect of decrees for requisitioning ships. The Motomar was a Spanish vessel en route from Rosario, Argentina, to New York when the Republican Government issued a decree expropriating it for the public service. The master was notified by wireless of the expropriation and directed to proceed to Vera Cruz. The officers and crew having expressed their conformity with this order, the master disregarded contrary instructions from the owner's agents at New York. Judge Leibell said: "The decree of the Spanish Government, dated December 10th, 1936, together with the action of the master and the crew on December 15th, taking possession and control of the ship in behalf of the Spanish Government pursuant to said decree, transferred the title and right to possession of the 'Motomar' to the Spanish Government. [Citing The Navemar, 102 F. (2d) 444, supra.]" 29 F. Supp. 210, 217.

¹⁴ See 103 F. (2d) 783 (CCA. 2d, 1939).

¹⁵ In general, see A. H. Feller, " Procedure in Cases Involving Immunity of Foreign States in Courts of the United States," this JOURNAL, Vol. 25 (1931), pp. 83-96; A. N. Sack, comment in 26 Illinois Law Review (1931), pp. 215-238; Francis Deak, "The Plea of Sovereign Immunity and the New York Court of Appeals," 40 Columbia Law Review (1940), pp. 453-465; "Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations," 50 Yale Law Journal (1941), pp. 1088-1093; and Stefan Riesenfeld, "Sovereign Immunity of Foreign Vessels in Anglo-American Law: The Evolution of a Legal Doctrine," 25 Minnesota Law Review (1940), p. 46 ff.

¹⁶ See Puente v. Spanish National State, 116 F. (2d) 43 (CCA. 2d, 1940). This was an action for professional services rendered. No appearance was entered for the defendant, but the Spanish Ambassador submitted a letter to the court pointing out that "under prevailing rules of international law the Spanish Government as a Sovereign State is not subject to suit in your Court without its consent, which in this case it declines to accord." In denying plaintiff's motion for a default judgment, the court said: "In this action, where there is no vestige of apparent jurisdiction, there would seem to be no reason why the plaintiff must not proceed in the usual way to show jurisdiction by alleging and proving defendant's consent to be sued; nor why, for lack thereof, the court, acting on its own motion or on appropriate suggestion . . . should not dismiss. And while the authorities are not numerous, presumably because such a suit is unusual, they all point that way. Courts take judicial notice of the sovereign character of a defendant and, in case of doubt, address their own inquiries to the executive. Duff Development Co. v. Government of Kelantan [1924], A. C 797, 813. . . . Both English and American courts have held that a sovereign need not affirmatively assert this immunity. Mighell v. Sultan of Johore [1894], 1 Q. B. 149; Nankivel v. Omsk All-Russian Government, 237 N. Y. 150, 157, 142 N. E. 569; Mason v. Intercolonial Ry. of Canada, 197 Mass. 349, 83 N. E. 876. . . ." Ibid., at p. 45.

¹⁷ See Deak, he. tit., p. 463.

¹⁸ "When a court appears to have all the elements of jurisdiction of an action, it is not improper to require of even a sovereign who would oust it of that jurisdiction that he furnish due proof to support his claim." Puente v. Spanish National State, 116 F. (2d) 43, 45 (CCA. 2d, 1940).

¹⁹ In the case of The Maipo, 252 Fed. 627 (S.D.N.Y. 1918), a Chilean naval transport, chartered to a private individual for commercial purposes, was held immune from process in a libel for breach of contract. The Chilean Charge d'Affaires raised the plea of immunity in the form of a suggestion accompanied by a certificate from the Department of State attesting his diplomatic character. A similar procedure was followed in The Carlo Poma, 259 Fed. 369 (CCA. 2d, 1919); and The Bogday, 279 Fed. 130 (N.D. Cal. 1920). Immunity has also been claimed by counsel for the foreign diplomatic representative appearing as amicus curiae: The Athanasios, 228 Fed. 558 (S.D.N.Y. 1915); The Johnson Lighterage Co. No. 24,231 Fed. 365 (D.N.J. 1916); The Roseric, 254 Fed. 154 (D.N.J. 1918); and The Adriatic, 258 Fed. 902 (S.D.N.Y. 1918).

²⁰ 254 U. S. 522 (1921).

²¹ Merely to allege that the vessel was in the public service and under the control of the British Government as an admiralty transport was not enough. These were matters which were not within the range of judicial notice and needed to be established in an appropriate way. . . . Thus from every point of view it was incumbent on those who called the jurisdiction in question to produce whatever proof was needed to sustain their challenge." 254 U. S. 522, 532.

²² 252 U. S. 522, 532.

²³ 254 U. S. 522, 533. In none of the cases cited (The Cassius, 2 Dall. 365 (1796); The Exchange, 7 Cranch 116 (1812); The Pizzaro, 19 Fed. Cas. No. 11,199 (1852); The Constitution, [1879] 4 P. D. 39; The Parkment Beige, [1879] 4 P. D. 129, [1880] 5 P. D. 197) was it suggested that the method of claiming immunity through an appearance by the government or its authorized representatives was an exclusive one. Furthermore, no notice is taken of the practice which had been followed by the inferior federal courts. See note 19, supra, and A. H. Feller, loe. cit., at p. 88. Professor Desk has suggested that "A close reading of Ex parte Muir . . . would support the view that the distinction drawn by the Court was not so much between a special appearance of the foreign state to claim immunity and the assertion of such claim through the Executive, but rather between the formal presentation of this claim by either of these two methods and the informal filing of an amicus curiae affidavit by private counsel." hoc. cit,, at p. 460, note 21.

²⁴ In The Pesaro, 255 U. S. 216, 218 (1920), the Italian Ambassador presented a suggestion to the court that the ship was owned by the Italian Government. The Supreme Court decided: "Apart from that suggestion, there was nothing pointing to an absence of jurisdiction. On the contrary, what was said in the libel pointed plainly to its presence. The suggestion was made directly to the court, and not through any official channel of the United States. True, it was accompanied by a certificate of the Secretary of State, stating that the ambassador was the duly accredited diplomatic representative of Italy; but, while that established his diplomatic status, it gave no sanction to the suggestion. The terms and form of the suggestion show that the ambassador did not intend thereby to place himself or the Italian government in the attitude of a suitor, but only to present a respectful suggestion and invite the court to give effect to it. He called it a 'suggestion,' and we think it was nothing more. In these circumstances the libelant's objection that, to be entertained, the suggestion should come through official channels of the United States, was well taken." See also Societa Commerciale di Navigazione v. Maru Navigation Co., 280 Fed. 334 (CCA. 4th, 1922). Cf. De Simone v. Transportes Maritimos do Estado, 199 App. Div. 602, 606, 191 N.Y.S. 864 (1922), in which the Appellate Division said that "However the objection [to jurisdiction] may be presented by the foreign sovereign, the court must give heed to it." See Felier, he. cit., pp. 88-90.

²⁵ Ambassador de los Rfos to Secretary Hull, Deo. 10, 1936; the Acting Secretary of State (Moore) to Sefior de los Bios, Dec. 11, 1936. Cited, Green H. Hackworth, Digest of International Law, II, pp. 449, 450.

²⁶ 17 F. Supp. 647, 649; 18 F. Supp. 153.

²⁷ 90 F. (2d) 673, 675, where the suggestion in the present case was held to be distinguishable from that deemed insufficient in The Pesaro, 255 U. S. 216.

²⁸ 90 F. (2d) 673, 676. In The Adriatic, 258 Fed. 902, 904 (CCA. 3d, 1919), the court stated that "On principles of international comity, we feel bound to accept the suggestion and avowal of the British ambassador as conclusively establishing both the fact of the requisition and its governmental character. Such has been the practice, as to similar facts, of the English courts . . . , and quite generally of the courts of this country. . . . " A similar view of the conclusive character of suggestions of immunity was taken in The Maipo, 252 Fed. 627, 628 (S.D.N.Y. 1918); The Carlo Poma, 259 Fed. 369, 370 (CCA. 2d, 1919); and The Rogday, 279 Fed. 130 (N.D. Cal. 1920). As to the English practice, see Preuss, this JOUENAL, Vol. 35 (1941), p. 267.

²⁹ 303U. S. 68, 74, 75.

³⁰ The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); Hassard v. United States of Mexico, 173 N. Y. 645, 66 N. E. 1116 (1903).

³¹ The Pesaro, 277 Fed. 473, 479 (1921). See also the exchange of communications relating to this case between the Italian Ambassador and the Department of State. Hackworth, Digest of International Law, II, pp. 437, 438.

³² As in The Navemar.

³³ The suggestions transmitted by the Executive are regularly terminated by the statement that they have been presented as "a matter of comity . . . for such consideration as the court may deem necessary and proper." See, for example, the instructions from the Department of State to the United States Attorney in the case of The Cucuta. Hackworth, Digest of International Law, II, p. 447.

³⁴ 281 N. Y. 362, 24 N. E. (2d) 201 (1939); this JOURNAL, Vol. 34 (1940), p. 349. The suggestion submitted in this case by the Secretary of State, through the Attorney General, was in the form described in note 33, supra. In Ulen & Co. v. Bank Gospodarstwa Krajowego, 261 App. Div. 1, 24 N.Y.S. (2d) 201 (1941), an action was brought against the defendant bank, which claimed immunity as an instrumentality of the Polish State. After the commencement of the action, the Polish Ambassador addressed a note to the Secretary of State, asserting that the defendant claimed immunity and requesting that the court be advised of the position taken by the Polish Government. The Secretary of State thereupon requested the Attorney General to instruct the proper United States Attorney to appear before the court and present the Polish Government's position "without argument or comment on his part other than to state that the statements of the Government of the Republic made in its behalf by the Polish Ambassador at Washington are brought to the attention of the court as a matter of comity between the United States and the Republic of Poland, a sovereign State duly recognized by the United States." Concerning the effect of this suggestion, Judge Close said: "It is urged that the action of the State Department amounted to a recognition and allowance of the defendant's claim to immunity by the executive branch of the United States Government. If that were a correct interpretation, the court would have been obliged, without further inquiry, to accept the claim of immunity and decline jurisdiction. Compafiia Espafiola de Navegaci6n Maritima, S. A. v. The Navemar, 303 U. S. 68, 58 S. Ct. 432, 82 L. Ed. 667. It is quite plain, however, that the State Department did not undertake to recognize the claim as valid or to influence the action of the court. It took a position of courteous neutrality. This left the court free to determine the question of jurisdiction, uninstructed by the executive branch of the government. Lamont v. Travelers Ins. Co., 281 N. Y. 362, 24 N. E. (2d) 81; Hannes v. Kingdom of Roumania Monopolies Institute, 260 App. Div. 189, 20 N.Y.S. (2d) 825." 24 N.Y.S. (2d) 201, 204 (1941).

³⁵ 36 F. Supp. 503 (E.D.N.Y. 1941). In this case the court expressly inquired of the Department of State whether it had "recognized and allowed" the claim of immunity made by the defendant. In reply the Counselor of the Department of State said: "The Department's earlier statements on this subject were not intended to indicate that it had 'recognized and allowed' the claim of immunity as a conclusion of law, but rather were intended, as indicated, to show that the Department felt that a prima facie case had been made out by the Government of Brazil, which justified the Department in having the statements presented to the court for its consideration. The Department's action necessarily implied an acceptance, as true, of the statements of fact made by the Brazilian Government. It was felt, however, that the ultimate decision of the question of immunity . . . should be left to the court. The action taken by the Department in these cases was similar to that taken in other cases where the Department felt that there was merit to the contention of the foreign government but did not undertake to pass upon such contention as a conclusion of law." Quoted in footnote 2 to Judge Moscowitz' opinion, ibid., at p. 504. In holding that this statement was controlling, the court said: "If, where the claim of immunity is recognized and allowed by the executive, the court must relinquish jurisdiction, it is difficult to see why the same finality should not be given to the sovereign's presentation of facts where the same has been accepted as true by the executive branch of the government, as has been done herein. The same theories upon which one rests, are the basis of the other. If the word of a sovereign is not to be questioned where accepted by the executive, then the rule applies equally to the case where the executive accepts as true only the facts, and by reason of lack of desire to usurp judicial functions does not pass upon the ultimate legal question of immunity." Ibid., at p. 506.

³⁶ Ex parte Muir, 254 U. S. 522, 533 (1921).

³⁷ See 50 Yale Law Journal (1941), pp. 1092, 1093.

³⁸ C. C. Hyde, "Concerning The Navemar," this JOURNAL Vol. 33 (1939), p. 531.

³⁹ The suggestion filed by the Ambassador, through the Acting Consul General, read in part: "The said Louis Careaga in his official authority and capacity aforesaid (as Acting Consul General) represents to this Honorable Court that in the month of October, 1936, the Consul General of the Republic of Spain at Rosario, Argentina, pursuant to instructions from the General Director of the Spanish Merchant Marine, took possession of the said Steamship Navemar, in the name of the Republic of Spain under decree of the Republic of Spain dated the 10th day of October, 1936, whereby the said Steamship Navemar then and there became and at all times since has remained the property of the Government of the Republic of Spain."

⁴⁰ 17 F. Supp. 647, 650 (E.D.N.Y. 1936).

⁴¹ 18 F. Supp. 153, 157 (E.D.N.Y. 1937). Judge Galston, in holding that the Spanish Government had failed to establish possession emphasized the following points: that the vessel, up to the time of its seizure at New York, was manned by officers and crew in the employ of the libelant; that its privately-owned cargo was delivered to the consignees at New York; and that the freight was collected by the master in behalf of the charterer. Evidence pointing to submission by the master to the decree of requisition was either ignored or discounted. The affidavit filed by the Acting Consul General alleged that the master had sent a cable from Buenos Aires to the Director of Navigation in Spain, stating that he had been authorized by the Consul General at Buenos Aires to proceed to New York. Furthermore, a member of the crew had testified that the master had called the crew together at Buenos Aires, informed them of the attachment of the vessel, and stated that he would henceforth act as the legitimate representative of the Republican Government. This statement was denied by the master. On December 7, 1936, the master wrote to the charterer of The Navemar that "Since October 28th (1936) I have been operating under orders of the Spanish Consul at Buenos Aires. . . . Since arriving at New York I have presented myself to the Spanish Consul here and he has given me orders that the steamship 'Navemar' is still to be held at the disposal of the Spanish Government." On December 2, 1936, the master signed a receipt acknowledging that the Consul General at New York had given him $300 as an advance to attend to the expenses of the vessel. It was held by the district court and by the Supreme Court, for reasons which seem unconvincing, that the above actsdid not show possession on the part of the Spanish Government or offset other evidence that the master was acting at all times for the owner of the vessel. See also the review of the evidence by the district court, 24 F. Supp. 495 (E.D.N.Y. 1938)

⁴² 90 F. (2d) 673, 677 (CCA. 2d, 1937).

⁴³ 303 U.S. 68, 75, 76(1938). A close reading of the opinions of Judge Manton and Mr. Justice Stone shows that they are probably agreed as to the necessity of possession as a ground for immunity, but that they are in disagreement as to the facts upon which the alleged possession of the Spanish Government was based, and as to the definition of "possession". Judge Manton's reasoning is not free from ambiguity. The Spanish Government, he said, obtained "constructive possession" of the vessel by "subjecting it to its control." 90 F. (2d) 673, 677. The Navemar, although in Argentine waters at the time the decree of requisition was issued, was subject to the jurisdiction of the Spanish Government since it was to be considered, "constructively, at least, as part of the territory of the sovereign whose flag it flies. . . ." Ibid., at 676. This would seem to imply that in Judge Manton's opinion the mere act of requisition, unaccompanied by any taking of actual possession, suffices as a basis for immunity. But this doctrine of "control," which is based upon that of the "guasi-territoriality " of ships, is not, it is believed, a part of the ratio decidendi, for Judge Manton goes on to point out that, according to his view of the evidence, the master had acted under the instructions of the Spanish Government from the time he was notified of the decree of requisition. It appears, therefore, that in his opinion such possession, obtained through recognition of the requisition by the master, constitutes "constructive possession," as distinguished from possession through the government's own officers. In support of his position he cites Hyde, International Law, II, pp. 444, 445, who states that "When . . . the officers acknowledge the duty to obey the governmental assertion of control and act accordingly, the circumstance that the vessel is neither owned nor actually possessed by the requisitioning State would appear to be immaterial. In such case the dedication of the ship to the public service would seem to render the constructive possession by the sovereign as efficacious for purposes of exemption as actual possession manifested by the assertion of control through the medium of its own officers." "Constructive possession," so understood, is clearly within the requirements for immunity laid down by Mr. Justice Stone, who pointed out that in the case of The Jupiter(No. 3), (1927) P. 122, on which respondent relied, themasterhad repudiated the possession and ownership of the plaintiffs and held the vessel for the claimant government. 303 U. S. 68,76.

⁴⁴ The doctrine that actual possession is required for claiming immunity appears to have its origin in The Davis, 10 Wall. 15 (U. S. 1869), in which a lien for salvage claims was enforced against cotton owned by the United States, but in the possession of a common carrier. In Long v. The Tampico, 16 Fed. 491 (S.D.N. Y. 1883), two revenue cutters built for the Mexican Government and en route for Mexico in the hands of a bailee were held subject to salvage claims; and in The Beaverton, 273 Fed. 539 (S.D.N.Y. 1919), a vessel chartered, but not possessed, by the French Government was held subject to a libel. See also The Johnson Lighterage Co. No. 24, 231 Fed. 365 (D.N.J. 1916). The principle was stated by Ward, J., in the case of The Carlo Poma, 259 Fed. 369, 370 (C.C.A. 2d, 1919), as follows: "The law of the United States is the same [as that of England], except that the immunity of property of a sovereign, whether the United States or a foreign sovereign, depends, not merely upon the ownership, but also upon the actual possession by the sovereign of the property at the time process is served." See Riesenfeld, 25 Minnesota Law Review (1940), pp. 36-45.

⁴⁵ The Supreme Court stressed the fact that in the case of The Cristina, [1938] A. C. 485, the possession taken in behalf of the claimant government was actual, and that the master and crew were in the pay of the Spanish Government. 303 U. S. 68, 76. This latter point was deemed to be decisive in The Attualita, 238 Fed. 909 (C.C.A. 2d, 1916), in which an Italian ship, requisitioned by the Italian Government, was held subject to a libel. It appeared that the vessel was hired by the Italian Government at a fixed rate, and was navigated by officers and a crew employed by the owners, who paid their wages and other expenses of the ship. These facts were also referred to, as negativing the claim of the Italian Government to possession, by the Secretary of State in his reply to the protest of the Italian Ambassador following the decision in The Attualita. Hackworth, Digest of International Law, II, p. 426. Compare The Roseric, 254 Fed. 154 (D.N.J. 1918), a case in which the facts are practically identical. In dismissing a libel against a ship requisitioned by the British Government, Rellstab, J., stated: "The British Government, in the exercise of its sovereign powers, took the Roseric and devoted it to its own purposes. That no change in the officers and crew took place, and that they continued in the employment of the ship's owner, is unimportant. The ship, its owner, officers and crew were under the compulsion of sovereignty. . . . Whether the government should operate the ship by the owner's officers and crew or others was for the sovereign's exclusive determination. The effect of its requisition was to put the ship and its equipment into the public service. The officers and crew, as well as the ship, for the time being became the sovereign's instrumentalities, and whatever possession of the ship they obtained by reason of this employment was the sovereign's possession while the requisition was in force. In legal effect a ship so subjected to vis major is no less in the possession of the sovereign than if he had taken it over by a regular charter or had manned it by his navy. . . . It is not the ownership or exclusive possession of the instrumentality by the sovereign, but its appropriation and devotion to such [public] service, that exempts it from judicial process. That in such use the owner of the instrumentality, through its servants, is permitted to remain in physical possession thereof . . . is of no moment, where, as in this case, the ship and its entire equipment is under the absolute dominion of the sovereign." Ibid., at 160, 161, 162.

⁴⁶ See The Roseric, note 45, supra, and 37 Columbia Law Review (1937), p. 658. The following are not strictly immunity cases, but they present a close analogy. In Earn Line S. C. Co. v. Sutherland S. C. Co., Ltd., 254 Fed. 126 (S.D.N.Y. 1918), it was held that requisition of a British vessel by the British Government was an excuse for breach of contract under a time charter excepting restraints of princes. The court rejected libelant's contentions that the requisition had become effective, not by reason of its notification to the owner, but because of the owner's acquiescence therein; and that the restraint of princes clause refers merely to physical restraint. Concerning the first point, L. Hand, J., stated: "It appears to me somewhat naive to suppose, under such circumstances as then existed, that the British Admiralty made requisitions dependent upon the consent of the shipowner." Ibid., at 129. In affirming, Hough, J., held that the second proposition was untenable, and that the requisition was a command having the force of law, even in the absence of any seizure, actual or threatened, by the British authorities. The Claveresk, 264 Fed. 276 (CCA. 2d, 1920). See also The Adriatic, 258 Fed. 902, 904 (CCA. 3d, 1919). In The Athanasios, 228 Fed. 558 (S.D.N.Y. 1915), a libel against a Greek vessel requisitioned by the Greek Government was dismissed, and performance of contract held to have been prevented by restraint of princes. The court said: "This Greek steamer cannot fulfill her charter without lawfully clearing from this port; she cannot clear without her papers; the Greek consul has them, under orders from his government to see to it that the vessel loads for governmental purposes. . . . There is certainly no power in any court of the United States to prevent or undo this act of the Greek king and his consul. It is of no moment whether the Greek municipal law is being correctly interpreted by the various Greek officials concerned— the restraint is actual and is governmental. Restraint need not be by physical force. . . . It is unnecessary to parade the opinions; the essential holding is that restraint which fulfills the exception must be actual, not potential or probable, and must emanate from recognized authority, not, e.g., the brute power of a pirate. I am quite unable to conceive any more actual restraint than is here present. The Athanasios has been in effect seized by the Greek consul, evidently much against the will of her owner and master." Ibid., at 560, 561. The English decisions are similar: Sanday & Co. v. British and Foreign Marine Ins. Co., [1915] 2 K. B. 781; Capel v. Soulidi, [1916] 2 K B. 365; Furness, Withy & Co. v. Rederiaktiegolabet Banco, [1917] 2 K. B. 873.

⁴⁷ See the remarks of Rellstab, J., in The Roseric, 254 Fed. 154, 156, 160.

⁴⁸ 18 F. Supp. 153, 158 (E.D.N. Y. 1937).

⁴⁹ In the case of The Cristina, [1938] A. C. 485, the House of Lords held that possession might be taken in British waters, provided that this could be done without public disorder or overt resistance. It was considered that no breach of the peace had in fact occurred, although the Spanish consul had boarded the vessel and broken into the master's cabin in order to obtain the ship's papers. Ibid., at 493, 509, 514, 517. De facto possession, obtained by a requisitioning government outside the territorial waters of the United States would apparently be respected in all cases. The method by which such possession was obtained, whether by force or by acts in violation of the law of the foreign state, would be immaterial. The question whether the vessel was subject to the jurisdiction of the foreign state at the time of seizure would be relevant only in cases involving the title and right to possession (or in cases involving the rights of a transferee of title from the requisitioning state). It would not arise in a case in which immunity, based on de facto possession obtained outside the territorial limits of the state of the forum, is claimed. Cf. El Condado, 63 I i . L. Rep. 330; this JOURNAL, Vol. 35 (1941), pp. 276-280. At the second trial in the case of The Navemar, the district court raised the question whether the crew was authorized by Spanish law to take possession in behalf of their government. 24 F. Supp. 495, 497 (E.D.N.Y. 1938). This was clearly irrelevant, since the seizure was ratified by the Spanish Ambassador and thereby became a governmental act not open to examination by the courts, unless required by some compelling reason of public policy (in the instant case, because the seizure was effected in disregard of the orderly processes of the local law). See Banco de Espafia ». Federal Reserve Bank of New York, 28 F. Supp. 958, 972 (S.D.N.Y. 1939); affirmed, 114 F. (2d) 438, 443, 444 (CCA. 2d, 1940). In several cases the validity of requisitions by the British Government has been challenged on the ground that they were contrary to British law. It was uniformly held that the requisition was a governmental act, the legality of which could not be inquired into by the courts. The Adriatic, 258 Fed. 902, 903 (CCA. 3d, 1919); The Claveresk, 264 Fed. 276, 281 (CCA. 2d, 1920); The Texas Co. v. Hogarth Shipping Co., Ltd., 256 U. S. 619, 628 (1920); The Island of MuU, 278 Fed. 131, 132 (CCA. 4th, 1921).

⁵⁰ 99 F. (2d) 935 (CCA. 5th, 1938); cert, denied, 306 U. S. 635 (1939).

⁵¹ Ibid., at 937.

⁵² A request by the Chargi d'Affaires that the Department of State recognize and allow the claim of the Mexican Government to immunity was refused on the same grounds as in The Navemar. Hackworth, Digest of International Law, II, pp. 455, 456.

⁵³ 99 F. (2d) 935, 940. Judge Hutcheson considered that the taking of possession in waters of the United States, in pursuance of a decree of requisition issued in Mexico, was "no different in incidents, quality and effect from one taken by a voluntary transfer." Although he carefully pointed out that the sole issue was that of possession, he intimated that he would consider that the requisition was operative to transfer title and right to possession of the vessel to the Mexican Government, if the issue were raised in a proper case. Ships, he implied, may be governed by principles other than those applicable to chattels on land: "Whether the maintenance of this view as to taking possession of ships in our waters will, as appellant maintains, result in its being extended to things seized on land, so as to lead to the imagined situation of the property of nationals of a foreign country being seized from them in this country under the authority of a foreign expropriation decree, we need not seriously consider, for it is not before us. It may be that since a vessel is considered constructively a part of the territory of the sovereign whose flag it flies, and is subject on the high seas or in territorial waters to the jurisdiction of that sovereign, The Navemar, 2 Cir. 90 F. 2d 673, 676, and cases cited (c/f The Cristina, supra), the taking possession of a ship in navigable waters presents an entirely different question from the taking possession of property on land. It is not necessary, however, for us to so decide." Ibid., at p. 941. See Yokahama Specie Bank, Ltd. v. Chengting T. Wang, 113 F. (2d) 329 (CCA. 9th, 1940), in which jurisdiction over a Chinese vessel, expropriated by the Chinese Government while it was at the port of San Francisco, was declined. The court held that the expropriation was accomplished peaceably, and that since China was not a formal belligerent, no breach of American neutrality was involved. See Riesenfeld, 25 Minnesota Law Review (1940), pp. 53-55.

⁵⁴ See Ervin v. Quintanilla, 99 F. (2d) 935, 939 (CCA. 5th, 1938).

⁵⁵ 24 F. Supp. 495, 500, 501 (E.D.N.Y. 1938).

⁵⁶ 102 F. (2d) 444, 449 (CCA. 2d, 1939), citing Mr. Justice Stone's concurring opinion in United States v. Belmont, 301 U. S. 324, 334 (1937).

⁵⁷ 102 F. (2d) 444, 449. Article 44 of the Spanish Constitution of 1931 provides:". . . La propriedad de toda clase de bienes podri ser objeto de expropriaci6n forzos a por causa de utilidad social mediante adecuada indemnizaci6n. . . . En ningun caso se impondra la pena de confiscacidn de bienes." The decree of October 10, 1936, moreover, provided for the assumption by the Spanish Government of all obligations of the owner to creditors.

⁵⁸ 16 Wall. 610 (1873).

⁵⁹ 102 F. (2d) 444, 449. "Even if the decree might not be effective while The Navemar was at Buenos Aires, nevertheless it was an instrumentality of expropriation that would become operative upon the vessel as soon as she reached the high seas." Id., loc. cit.

⁶⁰ 262 U. S. 100, 123 (1923).

⁶¹ See 37 Columbia Law Review (1937), p. 658.

⁶² The Texas Co. v. Hogarth Shipping Co., 256 U. S. 619 (1920).

⁶³ Linea Sud-Americana, Inc. v. 7,295.40 Tons of Linseed, 29 F. Supp. 210 (S.D.N.Y. 1939).

⁶⁴ The Athanasios, 228 Fed. 558 (E.D.N.Y. 1915); The Adriatic, 258 Fed. 902 (CCA. 3d, 1921).

⁶⁵ The Luigi, 230 Fed. 493 (E.D. Pa. 1916); The Claveresk, 264 Fed. 276 (CCA. 2d, 1920).

⁶⁶ The courts of the United States were not called upon to decide any cases involving the status of General Franco's Nationalist Government prior to its recognition as the Government of Spain. As an unrecognized government, it would almost certainly have been denied the right to maintain a suit, The Penza, 227 Fed. 91 (E.D.N.Y. 1921); R.S.F.S.R. v. Cibrario, 235 N. Y. 255 (1923); and it would have been immune from direct suit, Wulfsohn v. R.S.F.S.R., 234 N. Y. 372 (1923); Nankivel v. Omsk All Russian Government, 237 N. Y. 150 (1923). But in cases in which it did not appear as a formal party, as in suits against a ship, it would have been denied immunity under the rule of Ex parte Muir, 254 U. S. 522 (1921), since the State Department would have refused to make any suggestion to the court, and the unrecognized government, in the absence of diplomatic representation, would have been unable to intervene to raise the claim of immunity, The Gul Djemal, 264 U. S. 90 (1924). If, however, the requisition by the unrecognized government had become operative upon a ship in territorial waters under its de facto control (or, perhaps, upon a ship registered at a port under its de facto control), the rights of a transferee of title would have been protected, if the ship had been subsequently brought into waters of the United States, Salimoff & Co. v. Standard Oil Co. of New York, 262 N. Y. 220 (1933). See Feller, this JOURNAL, Vol. 25 (1931), p. 96; Louis L. Jaffe, Judicial Aspects of Foreign Relations (1933), pp. 140-162; and, for the British practice with reference to the status of the Nationalist Government of Spain, this JOURNAL, Vol. 35 (1941), pp. 269-276.