EX PARTE IN THE MATTER OF HUSSEIN LUTFI BEY, MASTER OF THE GUL DJEMAL, PETITIONER
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The Supreme Court denied a petition by the master of the Turkish merchant vessel Gul Djemal seeking prohibition and mandamus to prevent U.S. district court proceedings against the ship arrested for unpaid maritime claims. The Court held that where a foreign government's immunity from process is a debatable legal question and the State Department declines to vouch for the ship's sovereign status, a writ of prohibition is not warranted as a matter of right, and the trial court properly retained jurisdiction over the matter.
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Mr. Justice Van Devanter delivered the opinion of the court.
This is a motion for leave to file ¿ petition for a writ of prohibition and a writ of mandamus. "The circumstances leading, up to the motion can be shortly stated. The Steamship Gul Djemal, now in the Port of New York, was arrested and is being held under process issued against her in several suits m admiralty in the District Court for that district. She is a merchant ship and came from Constantinople to New York under a time charterparty, for a purely commercial purpose, shortly before the suits were brought. The claims sought to be enforced in them amount to $80,585 and are for wharfage, fuel, supplies and other necessaries furnished to the ship at Gibraltar in the course of her voyage and at New York after her arrival. Her master, Hussein Lutfi Bey, appearing specially in the suits, applied to have her releásed from arrest, and in support , of his application alleged that she was owned, manned and operated by the Turkish or Ottoman Government, that she therefore was not subject to the court’s process and that he, as the representative and agent of that government, was her true and lawful bailee and as such entitled to her immediate possession. The court declined to order her release, and in the petition now proffered the master seeks a writ of prohibitión forbidding further proceedings in the suits and a writ of mandamus commanding that the order denying his application be vacated and another entered releasing the ship. Tiie questions involved are, first, whether the ship of a foreign government which it uses and operates as a merchant vessel is, when within the waters of the United States, immune from process in suits such as have been described; and, secondly, whether such immunity properly can be claimed in respect of the ship of a government which has severed and not resumed diplomatic relations with the United States. Both questions are important and also new. Their proper solution is not plain but debatable. This is frankly recognized in the brief supporting the motion. Even in admiralty cases a writ of prohibition goes as a matter of right only where the absence of jurisdiction is plain. Where the jurisdiction is debatable the granting or refusal o'f the-writ is discretionary. Ex parte Muir, 254 U. S. 522. It is not plain that there is an absence of jurisdiction here, for the question is an open one and of-uncertain solution. . On applir cation to the State Department, it declined to ask the Attorney General to present to the District Court a suggestion avowing that the ship belonged to the Turkish or Ottoman Government and was immune from seizure. We regard the situation as one in which to refuse the writ would be a proper exercise of discretion. There are stronger reasons against granting a writ of mandamus.
Leave to file petition denied,.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Ex parte in the Matter of the United States, 257 U.S. 419 (U.S. 1922)
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Ex parte: in the Matter of Transportes Maritimos Do Estado, 264 U.S. 105 (U.S. 1924)…nd for granting the extraordinary relief now asked. There has been ample time and opportunity for advancing the claim of immunity in the customary manner. Ex parte Muir, 254 U. S. 522; The Pesaro, 255 U. S. 216, 218, 219; Ex parte Hussein Lutfi Bey, 256 U. S. 616, 619. Rule discharged and petition dismissed.…
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Oliver Am. Trading Co., Inc. v. Gov't of the United States of Mexico, 5 F.2d 659 (2d Cir. 1924)…parte Muir, 254 U. S. 522, 531, 41 S. Ct. 185, 187, 65 L. Ed. 383 (1921), where it was said to be “one of obvious delicacy and importance. No decision by this court up to this time can be said to answer it.” And again in Ex parte Hussein Lutfi Bey, 256 U. S. 616, 41 S. Ct. 609, 65 L. Ed. 1122 (1921), it was alluded to as “important and also new.” The court added that its “proper solution is not plain, but debatable.” But the question which is now presented tq us is not the question adverted to above, and be…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Hohorst v. Hamburg-American Packet Co., 148 U.S. 262 (U.S. 1893)
- McLISH v. Roff, 141 U.S. 661 (U.S. 1891)
- Ex parte in the Matter of Muir, 254 U.S. 522 (U.S. 1921)
- Smith v. Whitney & Others, 116 U.S. 167 (U.S. 1886)
- In re Cooper, 143 U.S. 472 (U.S. 1892)
- In re Rice, 155 U.S. 396 (U.S. 1894)
- Louisville Tr. Co. v. Knott, 191 U.S. 225 (U.S. 1903)
- Ex parte Easton, 95 U.S. 68 (U.S. 1877)
- Cushing v. Laird, 107 U.S. 69 (U.S. 1882)
- United States v. Cong. Constr. Co., 222 U.S. 199 (U.S. 1911)