215

Argument for Appellants.

law and under our Constitution, that the condemnation, to be effective, must be by a judicial tribunal, and that no administrative substitute can take its place. The Appam, 243 U. S. 124; The Siren, 22 Fed. Cas. No. 12911; Oakes v. United States, 174 U. S. 778; The Nassau, 4 Wall. 634. This is not only a rule of international law, but a principle confirmed by the Constitution of the United States. Jecker v. Montgomery, 13 How. 498; The Resolution, 2 Dall. 1; Young v. United States, 97 U. S. 39. The necessity after seizure of a deposit of value or a judicial condemnation, as a condition to the taking over by the Executive of an enemy vessel for military purposes, is still more evident on consideration of the decisions of this Court holding that vessels such as the Neckar are entitled to most liberal treatment and that a noncombatant enemy has a right not only to a judicial hear ing and to appear and claim the seized vessel and contest the seizor's claims, but also to prosecute an appeal to this Court if the lower court's ruling should be unfavorable. The Pedro, 175 U. S. 354; The Guido, 175 U. S. 383; The Buena Ventura, 175 U. S. 384; The Panama, 176 U. S. 535; The Paquete Habana, 175 U. S. 677. Indeed, the rule of law requiring a judicial proceeding as a condition to the transfer of possession to the sovereign, is so well settled that the Navy Department has recognized it by general orders. The Santo Domingo, 119 Fed. 388. The suggestion that the law of maritime or prize seizure is confined to seizures on the high seas is refuted not only by the British authorities but also by the following American cases: The Joseph, 8 Cr. 451; The Caledonian, 4 Wheat. 100; Dewey v. United States, 178 U. S. 510; The Santo Domingo, 119 Fed. 386; United States v. Steever, 113 U. S. 747; The Rita, 89 Fed. 763.

The resolution is unconstitutional because it reduces the extent of the constitutional grant of admiralty juris

Argument for the United States.

270 U.S.

diction to the judiciary and impairs the substantive international maritime law. Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; Gableman v. Peoria Ry. Co., 179 U. S. 335; Walters v. Payne, 292 Fed. 124.

By granting immunity in the present case, this Court would be extending the theory of immunity beyond any of its existing decisions. Harv. L. Rev., Vol. 34, p. 165; Cardozo, Growth of the Law, p. 117; Laski, Foundations of Sovereignty, pp. 109, 126; Pound, Spirit of the Common Law, pp. 83-84; Stimson, Popular Law Making, p. 10; Carter, Law, Its Origin, Growth and Function, pp. 6, 8, 13-14; Gray, Nature and Sources of Law, 1921 ed., pp. 74, 233, 288; Salmond, Jurisprudence, pp. 202-203; Lightwood, Nature of Positive Law, p. 417; Vinogradoff, Outlines of Historical Jurisprudence, p. 86; Bryce, Studies in History and Jurisprudence, p. 538; Brown, Austinian Theory of Law, p. 194.

The claim or suggestion of the United States Attorney should be dismissed because not proved and because not presented by a proper officer; or should be regarded as a submission to jurisdiction enabling the collision lien to be enforced as a cross or intervening claim.

Solicitor General Mitchell, with whom Assistant Attorney General Letts and Mr. J. Frank Staley, Special Assistant to the Attorney General, were on the brief, for appellee.

Under the Joint Resolution of May 12, 1917, and the Executive Orders issued thereunder, the United States acquired lawful possession of and title to the Antigone. Brown v. United States, 8 Cr. 110; Miller v. United States, 11 Wall. 268; Ware v. Hylton, 3 Dall. 199; The Western Maid, 257 U. S. 419.

The Western Maid, 257 U. S. 419, settles the point that, as the vessel was owned by or in the lawful possession of the United States. and employed in the public

service at the time of the collision, she was immune from liability.

MR. JUSTICE MCREYNOLDS delivered the opinion of the Court.

The court below sustained a challenge to its jurisdiction, and this direct appeal followed.

October 9, 1919, in New York Harbor the steamships Antigone" and "Gaelic Prince" collided. Serious injury resulted to the latter and its cargo. February 19, 1921, relying upon the Suits in Admiralty Act of March 9, 1920 (c. 95, 41 Stat. 525), the owners seek to recover damages. The Act of March 3, 1925, c. 428, 43 Stat. 1112, is not applicable. They allege that the collision resulted from the fault of the "Antigone." Also that—

"At all the times mentioned herein prior to the 13th day of October, 1919, and particularly on the 9th day of October, 1919, the date of the collision hereinafter mentioned, the steamship 'Antigone' was owned by a private person or merchant who was solely entitled to the immediate and lawful possession, operation, and control of said vessel. At no time prior to said 13th day of October, 1919, was the said steamship 'Antigone' owned, either absolutely or pro hac vice, by the United States of America, nor by any corporation in which the United States of America or its representatives owned the entire outstanding capital stock, nor lawfully in the possession of the United States of America or of such corporation, nor lawfully operated by or for the United States of America or such corporation. On the 13th day of October, 1919, the respondent United States of America became, ever since has been, and now is in the lawful possession of the steamship 'Antigone,' but at no time has the United States of America held the legal title to or been the absolute owner of said steamship 'Antigone.''

The United States appeared specially and suggested that when the collision occurred they owned, possessed and controlled the "Antigone" and therefore the court was without jurisdiction. This was denied and evidence was taken upon the consequent issue. Having considered the evidence, the court held that the United States owned the vessel and were navigating her, with a crew employed by the War Department, in transporting supplies and troops. The libels were accordingly dismissed for want of jurisdiction.

If the established facts show such ownership, possession and control, then, under the doctrine of The Western Maid, 257 U. S. 419, to which we adhere, the decree is clearly right.

The history of the matter is this. The "Antigone "-then the privately-owned German merchantman "Neckar "took refuge within the United States prior to April 6, 1917, when war with Germany was declared. By Joint Resolution of May 12, 1917, c. 13, 40 Stat. 75 (copied in the margin*), Congress authorized the President to take over to the United States the immediate possession and title of any vessel within their jurisdiction which at the time of coming therein was owned by any corporation, citizen or subject of an enemy nation, or was under register of any such nation. By Executive Order of June 30, 1917, the President affirmed that the "Neckar" was

*Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That the President be, and he is hereby, authorized to take over to the United States the immediate possession and title of any vessel within the jurisdiction thereof, including the Canal Zone and all territories and insular possessions of the United States except the American Virgin Islands, which at the time of coming into such jurisdiction was owned in whole or in part by any corporation, citizen, or subject of any nation with which the United States may be at war when such vessel shall be taken, or was flying the flag of or was under register of any such nation or any political subdivision or municipality thereof; and, through the United States Shipping Board, or any department or

such a vessel and ordered that "the possession and title" be taken over through the United States Shipping Board. He further authorized that Board to repair, equip, man and operate her. It accordingly took her, July 17, 1917, and thereafter a naval board appraised her. Subsequently she was transferred to the Navy Department, re-named the "Antigone," and later transferred to the Army Transport Service. October 9, 1919, she sailed under a master, officers and crew of the United States Transport Service from New York bound for Brest, from which port she was to return with troops.

Appellants say that the rules of international law as recognized by the United States forbade them from confiscating German vessels within their jurisdiction at outbreak of the war, and that the Resolution of May 12, 1917, should be so interpreted as to harmonize with these rules. They further insist that thus interpreted the Resolution only gave authority to detain and operate the "Antigone" as enemy property, leaving title in the original German owners and the vessel subject to ordinary maritime liens. Our attention is called to the course pursued by the British government and to certain decisions of their courts. The Chile, 1 Br. & Col. Prize Cases 1; The Gutenfels, 2 id. 36; The Prinz Adalbert, 3 id. 70, 72; The Blonde, L. R. (1922) 1 A. C. 313, 334.

agency of the Government, to operate, lease, charter, and equip such vessel in any service of the United States, or in any commerce, foreign or coastwise .

SEC. 2. That the Secretary of the Navy be, and he is hereby, authorized and directed to appoint, subject to the approval of the President, a board of survey, whose duty it shall be to ascertain the actual value of the vessel, its equipment, appurtenances, and all property contained therein, at the time of its taking, and to make a written report of their findings to the Secretary of the Navy, who shall preserve such report with the records of his department. These findings shall be considered as competent evidence in all proceedings on any claim for compensation.

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