278 F. 294 | N.D. Cal. | 1920
This is an action in rem, brought rgainst and to secure the possession of the Rogdai (or Rog’day), a steamer lying in San Francisco Bay, state of California. By the bill it is represented that the’ libelant “Russian Socialist Federal Soviet Republic” is a sovereign nation, and that it is the owner of the vessel, and that the other libelant, Ludwig C. A. K. Martens, is its agent and cvrcsciri.iii'.c in the United States, duly authorized to act in its behalf. Process of attachment issued, by virtue of which the steamer was seized and is now held in custody by the marshal. The “Russian Government” and Boris Bakhmeieff, appearing specially, move for an <TíVr bUroiviug the wrií of attachment. The motion is supported by “sug • estiou,” signed by Boris Bakhmeieff, and under the seal of the Russian Embassy at Washington, accompanied by a certificate duly execuied by the Department of State of the United States, on April 6, 1920, certifying that Boris Bakhmeieff was formally received by the President as the duly accredited Ambassador Extraordinary and Plenipotentiary of Russia to the United States, on July S, 1917, and that lie has continuously since that date been recognized as such by the government of the United States, and further that the government has not received or recognized Ludwig C. A. K. Martens in any representative capacity, “nor has the so-called Russian Socialist Federal Soviet Republic been recognized in any way by the government of the United States.”
By the “suggestion” it is shown that the Rogdai is a “Russian naval transport under ’the command of Mili Gordener, a lieutenant commander in the Russian navy,” that she was purchased for Russia in the United States on July 20, 1917, that thereafter under an agreement with the ambassador she was used by the United States government in prosecuting the war with Germany, and that on the 6lli day of October, 1919, with Ihe written consent of the Secretary of State of the United States, she was again taken over by the Russian Embassy at Washington, and was in its possession and under its control at the time of "her seizure by the marshal. No counter showing is
The question at issue is one of state; it involves international re-, lations, and is primarily for the State Department. If, as contended by libelants, it be granted that a revolution has taken place in Russia, and that the Soviet Republic is in actual control, the question when, if at all, such de facto government shall be recognized, is a political one. It involves considerations of national policy, which are not jus-ticiable, and touching it the voice of the Chief Executive is the voice, not of a branch of the government, but of the national sovereignty, equally binding upon all departments. Accordingly it must be held that the courts are powerless to grant the relief which the libelants seek. It is to be reiterated that we are not here concerned with the claim of a third party, either public or private, to the property in controversy, nor have we a case where the Department of State has failed to act, or where it is sought only to protect a party in actual possession. The case is one where the court is asked to take property conceded to be that of the Russian nation from the actual possession of those whom the State Department unmistakably recognizes as the accredited agents of the Russian government, and turn it over to other persons whom that department has declined to recognize as having any official standing whatsoever.
In the main the judicial decisions cited in the briefs for both parties are obviously distinguishable, but for convenience of possible reference those thought to be most nearly in point are here noted: The Luigi (D. C.) 230 Fed. 495; The Johnson Lighterage Co. (D. C.) No. 24, 231 Fed. 365: The Attualita, 238 Fed. 909, 152 C. C. A. 43; The Florence II. (D. C.) 248 Fed. 1012; The Roseric (D. C.) 254 Fed. 154: The Adriatic, 258 Fed. 902, 169 C. C. A. 622; Agency of Con. Car & F. Co. v. Am. Car Co. (D. C.) 253 Fed. 155; Id., 258 Fed. 368, 169 C. C. A. 379, 6 A. L. R. 1182; The Conception, 6 Fed. Cas. No. 360; King of Spain v. Oliver, Fed. Cas. No. 7,814, 2 Wash. C. C. 429; Christensen v. Rogday, No. 16,797, this court;1 The Gagara, [1919] Prob. Div. 95; The Dora, [1919] Prob. Div. 105, 88 L. J. P. 119191 101, 107; The Exchange v. McFaddon, 11 U. S. (7 Cranch) 116, 3 L. Ed. 287; Thorington v. Smith, 75 U. S. (8 Wall.) 1, 19 L. Ed. 361; The Sapphire, 78 U. S. (11 Wall.) 167, 20 L. Ed. 127; The Davis, 77 U. S. (10 Wall.) 15, 19 L. Ed. 875; Williams v. Bruffy, 96 U. S. 176, 24 L. Ed. 716.
The motion is allowed, and an order will be entered discharging the attachment.