holding that a contract for the sale of a ship is not a maritime contract
How later courts described this case
- holding that a contract for the sale of a ship is not a maritime contract
- “[T]he prevailing rule has been that a contract for the sale of a ship is not a maritime contract.”
- “Unquestionably, ... lack of jurisdiction over the subject matter may be raised at any time.”
Written by the judges who cited it.
The opinion
ALBERT Y. BRYAN, Circuit Judge
(dissenting):
For the reasons stated in my initial dissent in this case Flota Marítima Browning De Cuba, etc., v. Motor Vessel Ciudad De La Habana, 335 F.2d 619, 631 (1964), I do not think there has been a waiver of execution immunity. Further, *738 I find the order of sale inequitably oppressive in the circumstances here.
The libelants (using the term infra to include both Flota and the intervenors) have procured a sale of the vessel without one tittle of evidence to prove their claims. Equally indefensible, the vessel now ordered sold is admittedly not owned by Banco, the only party charged by the libelants with creating the alleged liability, but is owned by the Republic of Cuba. This is apparently excused by the District Court with the explanation that Cuba owns Banco, yet in an earlier opinion in this case, 218 F.Supp. 938, 940 (1963), the District Court found that Banco was an “autonomous” entity in which Cuba was only the majority stockholder.
The sale is ordered under Supreme Court Admiralty Rule 12. The power of sale there given is conditioned upon the owner’s “unreasonable neglect to make any * * * application” to have the ship delivered to him. Here the owner’s “neglect”, if it be such, was hardly “unreasonable.” There were substantial defenses, including the pleas of sovereign immunity, albeit they were eventually overruled. Under the present facts the equities of Cuba and the libelants are at least equal. A sale will be an irretrievable step, inflicting irreparable injury upon Cuba, even if she wins the case. Certainly, Cuba’s success is a possibility which should not be ignored in determining whether to sell. The right under Rule 12 to sell is discretionary, requiring a balancing of equities, and I think this discretion is abused by a pretrial sale.
Proctors for Banco and Cuba suggested to us that the ship — already detained for more than six years — would not deteriorate beyond restoration, as a live ship, before expeditious hearings of the libel and intervening petitions could be concluded. Indeed, they suggested that the scrap value of the Ciudad De La Habana would exceed the libelants’ claims against her. If either of these assertions is sustainable, then the libel-ants surely are not entitled to the sale, for the retention of the ship would not prejudice them. The libelants should shoulder the burden to prove that the value of the ship is now, or will be upon the final disposition of the suit, insufficient to respond to the genuine claims of the libelants.
The most advisable solution of the problem is an immediate trial of the cause. To repeat, I think no sale at all is permissible, and certainly not one without a trial of the case on the merits.