L. LITTLEJOHN & CO., Inc., et al. v. UNITED STATES.

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 (chapter 95, 41 Stat. 525 (Comp. St. Ann. Supp. 1923, §§ 1251 1/4-1251 1/4 l)), the owners seek to recover damages. The Act of March 3, 1925, c. 428, 43 Stat. 1112 (Comp. St. Supp. 1925, §§ 1251 3/4-1 to 1251 3/4-10), 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, 42 S. Ct. 159, 257 U. S. 419, 66 L. Ed. 299, 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, being Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8146rr, 8146s (copied in the margin1), 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 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, renamed 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 Br. & Col. Prize Cases, 36; The Prinz Adalbert, 3 Br. & Col. Prize Cases, 70, 72; The Blonde (1922) L. R. 1 A. C. 313, 334.

Both Great Britain and Germany were parties to Convention VI of the Second Hague Peace Conference, 1907,2 and the action of the former, referred to by counsel, was taken in view of obligations thus assumed. The United States did not approve that convention, and the cited cases involved problems wholly different from the one here presented.

It is unnecessary to consider how far the ancient rules of international law concerning confiscation of enemy property have been modified by recent practices. In the absence of convention every government may pursue what policy it thinks best concerning seizure and confiscation of enemy ships in its harbors when war occurs. The Hague Conference (1907) recognized this and sought by agreement to modify the rule. The Blonde, supra, page 326. Our problem is to determine the result of action taken under a joint resolution of Congress whose language is very plain and refers only to enemy vessels. It authorized the President to take 'possession and title,' and, obeying, he took them. We do not doubt the right of any independent nation so to do without violation any uniform or commonly accepted rule of international law; and Congress had power to authorize the action irrespective of any general views theretofore advanced in behalf of this government. Certainly all courts within the United States must recognize the legality of the seizure; the duly expressed will of Congress when proceeding within its powers is the supreme law of the land.

Brown v. United States, 8 Cranch, 110, 122 (3 L. Ed. 504):

'That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed no power to condemnation can exist in the court.'

See Miller v. United States, 11 Wall. 268, 20 L. Ed. 135; The Blonde, supra.

The decree of the court below is affirmed.