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with a prayer that the process be quashed and the vessel released. The exception was not set down for hearing and remains undisposed of. There was no appearance by either the owner or the master save as just stated; nor was there any appearance by the British Government or by any representative of that government other than through the suggestion which counsel for the Embassy in Washington presented as amici curiæ.
After filing the special claim and exception, the master applied to the Circuit Court of Appeals for the Second Circuit for writs of prohibition and mandamus preventing the District Court from exercising further jurisdiction and commanding it to undo what had been done; but the application was denied for reasons which need not be noticed now. 255 Fed. Rep. 24.
A few days later an arrangement was effected whereby an acceptable surety company undertook to enter into and file a stipulation for value in the usual form and in a sum to be named by the libelant, not exceeding $450,000, unless on an intended application to this court for a writ of prohibition the vessel should be held immune from the process under which she was arrested and detained. Following that arrangement, on December 10, 1918, the District Court entered the following order:
"On the annexed agreement for security, and consent of the proctors for the libellant herein, and the record herein, it is
"ORDERED that in order to prevent further delay and expense, the steamship Gleneden be and she hereby is allowed to proceed on her voyage and leave the physical custody of the Marshal of the Eastern District of New York, provided, however, that this order does not and shall not be deemed to constitute any withdrawal or quashing of the writ of arrest; and it is
"FURTHER ORDERED that all proceedings herein be stayed and special claimant's or libellant's time to file any other
Opinion of the Court.
or further papers herein be extended to and including the 23rd day of December, 1918, and in case application is made for a writ of prohibition to the Supreme Court on or before December 23rd, 1918, all proceedings herein be stayed and the time of the special claimant or of the libellant to file any other or further papers herein be extended until ten (10) days after the entry and service of an order or decree on the final decision of the United States Supreme Court on the said writ of prohibition."
The master thereupon asked leave of this court to file a petition for a writ of prohibition preventing the District Court from proceeding with the suit and from interfering with the Gleneden in any manner, and for a writ of mandamus directing that court to vacate the order made when the suggestion on behalf of the British Embassy was overruled and to enter an order releasing the vessel without requiring security, the grounds advanced in the petition being essentially a repetition of those embodied in the suggestion of counsel for the British Embassy. The requested leave was given, a rule to show cause was issued, a return was made by the District Judge, and counsel have been heard. Whether on the case thus made either of the writs should be granted is the matter to be decided.
The principal question sought to be presented-whether the Gleneden is such a public vessel of the British Government as to be exempt from arrest in a civil suit in rem in admiralty in a court of the United States-is one of obvious delicacy and importance. No decision by this court up to this time can be said to answer it. The nearest approach is in the case of The Exchange, 7 Cranch, 116, where an armed ship of war, owned, manned and controlled by a foreign government at peace with the United States, was held to be so exempt. To apply the principle or doctrine of that decision to the Gleneden would be
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254 U. S.
taking a long step, and the present posture of this litigation is such that we find no occasion to consider whether there is proper warrant for taking it.
It is conceded that the Gleneden is not an armed ship of war, and that she is not owned by a foreign government but by a private corporation. In a sense she may be temporarily in the service and under the control of the British Government, but the nature and extent of that service and control are left in uncertainty by the proofs, although the facts evidently are susceptible of being definitely shown.
Prima facie the District Court had jurisdiction of the suit and the vessel, The Belgenland, 114 U. S. 355, 368–369, and to call that jurisdiction in question was to assume the burden of showing what was in the way of its existence or exertion. Merely to allege that the vessel was in the public service and under the control of the British Government as an admiralty transport was not enough. These were matters which were not within the range of judicial notice and needed to be established in an appropriate way. They were not specially within the knowledge of the libelant, nor did it have any superior means of showing the real facts. Thus from every point of view it was incumbent on those who called the jurisdiction in question to produce whatever proof was needed to sustain their challenge.
As of right the British Government was entitled to appear in the suit, to propound its claim to the vessel and to raise the jurisdictional question. The Sapphire, 11 Wall. 164, 167; The Santissima Trinidad, 7 Wheat. 283, 353; Colombia v. Cauca Co., 190 U. S. 524. Or, with its sanction, its accredited and recognized representative might have appeared and have taken the same steps in its interest. The Anne, 3 Wheat. 435, 445-446. And, if there was objection to appearing as a suitor in a foreign court, it was open to that government to make the as
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serted public status and immunity of the vessel the subject of diplomatic representations to the end that, if that claim was recognized by the Executive Department of this government, it might be set forth and supported in an appropriate suggestion to the court by the Attorney General, or some law officer acting under his direction. The Cassius, 2 Dall. 365; The Exchange, 7 Cranch, 116; s. c. 16 Fed. Cas. No. 8,786; The Pizarro, 19 Fed. Cas. No. 11,199; The Constitution, L. R. 4 P. D. 39; The Parlement Belge, L. R. 4 P. D. 129; s. c. L. R. 5 P. D. 197.
But none of these courses was followed. The suggestion on behalf of the British Embassy was presented by private counsel appearing as amici curia, and not through the usual official channels. This was a marked departure from what theretofore had been recognized as the correct practice (see cases last cited); and in our opinion the libelant's objection to it was well taken. The reasons underlying that practice are as applicable and cogent now as in the beginning, and are sufficiently indicated by observing that it makes for better international relations, conforms to diplomatic usage in other matters, accords to the Executive Department the respect rightly due to it, and tends to promote harmony of action and uniformity of decision. See United States v. Lee, 106 U. S. 196, 209. Of course, the suggestion as made could not be given the consideration and weight claimed for it.
From all that has been said it is apparent that the status of the Gleneden, judged in the light of what was done and shown in the District Court, is at best doubtful and uncertain, both as matter of fact and in point of law. The jurisdiction of that court is correspondingly in doubt, for it turns on the status of the vessel. The suit is still in the interlocutory stage. The court may take up again the question of its jurisdiction. If it does, the inquiry may proceed on other lines and the facts may be brought out more fully than before. In addition, the question
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may be reexamined in regular course on an appeal from the final decree.
The power of this court, under § 234 of the Judicial Code, to issue writs of prohibition to the District Courts, when proceeding as courts of admiralty, to prevent an unlawful assumption or exercise of jurisdiction, is not debatable. But this power, like others, is to be exerted in accordance with principles which are well settled. In some instances, as where the absence of jurisdiction is plain, the writ goes as a matter of right. Ex parte Phenix Insurance Co., 118 U. S. 610, 626; Ex parte Indiana Transportation Co., 244 U. S. 456. In others, as where the existence or absence of jurisdiction is in doubt, the granting or refusal of the writ is discretionary. In re Cooper, 143 U. S. 472, 485; In re New York & Porto Rico S. S. Co., 155 U. S. 523, 531; In re Alix, 166 U. S. 136. And see Ex parte Gordon, 104 U. S. 515, 518-519; The Charkieh, L. R. 8 Q. B. 197.
Here the most that can be said against the District Court's jurisdiction is that it is in doubt; and in other respects the situation is such that we deem it a proper exercise of discretion to refuse the writ. Nothing need be added to show that the request for a writ of mandamus is on no better footing. In re Morrison, 147 U. S. 14, 26; Ex parte Oklahoma, 220 U. S. 191, 209; Ex parte Roe, 234 U. S. 70.
Rule discharged and petition dismissed.