The Athanasios

228 F. 558 | S.D.N.Y. | 1915

HOUGH, District Judge

(after stating the facts as above). [1] The motion for process with clause of foreign attachment is denied. The practice is correctly outlined in Benedict’s Admiralty, § 353 et seq., which is little more than a statement of the traditional law as contained in the briefs of counsel in Atkins v. Fibre & Co., 18 Wall. 292, 21 L. Ed. 841. For an instance in this court of how far this form of process depends on known possibilities of procuring appearance, see Shewan v. Hallenbeck (D. C.) 150 Fed. 231.

[2] The question whether Bowring & Co. are personally responsible, because in signing the charter party no principal was disclosed, and whether an action in rem will lie in any event, because the ship had not at time of breach of charter taken aboard any cargo nor gone to a loading berth, need not be considered, because I am of opinion that performance of contract has been prevented, and the charter party relieved, by “restraint of princes.”

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, and he has authority to put on her a captain who will obey these orders, if the present master does not. In the phrase now current, the sovereign of the ship’s home and owner has “commandeered” or requisitioned the steamer for government account.

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 Grecian officials concerned — the restraint is actual, and is governmental. Restraint need not be by physical force. Olivera v. Union Ins. Co., 3 Wheat. 183, 4 L. Ed. 365. Many of the cases on restraint are cited in The Styria, 186 U. S. 1, 22 Sup. Ct. 731, 46 L. Ed. 1027, all the British decisions and the American rule as to quarantine, in Carver on Carriage by Sea (5th Ed.) § 82, and Scrutton on Charter Parties (6th Ed.) art. 82.

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. For this reason, both libels must be dismissed.

[3] Having reached a decision, going into the merits of the controversy, by interpreting the contract made by the parties thereto, anything further is obiter. Considering, however, the probability of other cases more or less similar arising during the present world war, attention is called to the fact that this libelant is a Canadian corporation asserting a right against a res presently used by the government of Greece. In my opinion there is no compulsion upon a court of admiralty to entertain, such a suit, and it is advisable to decline jurisdiction for political reasons.

It may also be noted that, under existing treaties and what has hitherto been .considered accepted international usage, it would be the duty certainly of the executive, and probably of the judicial, branch of the United States government to assist the consul general of Greece in carrying out the orders of his king in respect of the Athanasios, inasmuch as such orders in no wise interfere with the peace, order, or dignity, of the United States, however destructive they may be to a private contract between subjects of Greece and Great Britain.

This consideration would (even if the charter party had not contained the usual exemptions) .result in denying process, either in rem or by attachment, against the steamship.

Vessel released, and libels dismissed, with one bill of costs.¹

1 Note. — Since filing the above Sanday & Co. v. British, etc., Ins., limited, 113 Law Times Rep. 407, has appeared.. “Restraint of princes” is there fully treated in a case not unlike this.