(concurring in the result).
The Mexican steamship Campeche, in tow of the Mexican steamship Baja California, collided with the Amerian schooner Lottie Carson in the harbor of Mazatlan, Sinaloa, Mexico. The Baja California, was owned by appellant, the Republic ofj Mexico, but was not in appellant’s possession or service. Instead, she was in the possession of and was operated by a Mexican corporation. The collision was caused by the corporation’s negligence and resulted in the sinking and total loss of the Lottie Carson. Appellee, R. B. Hoffman, owner of the Lottie Carson, libeled the Baja California in the District Court of the United States for the Southern District of California, seeking thereby to recover damages for the loss of the Lottie Carson. Process was issued and the Baja California, being then within the Southern District of California, was attached by the United States Marshal for that District.
Appellant, appearing specially, suggested to the court that the Baja California was immune from process and hence should be released.1 In a note to the Secretary of State of the United States, appellant’s Ambassador to the United States claimed that the Baja California was immune and requested the Secretary to recognize the claimed immunity and to obtain recognition thereof by the court. Instead of complying with the Ambassador’s request, the Secretary transmitted to the Attorney General of the United States a copy of the *859Ambassador’s note and requested the Attorney General to direct the United States Attorney for the Southern District of California to appear before the court and “report to it the position of [appellant] as set forth in the Embassy’s note.” That was done.2 The court refused to recognize the claimed immunity and entered a decree in appellee’s favor. From that decree this appeal is prosecuted.
Appellant specifies as error the court’s refusal to recognize the claimed immunity, appellant’s contention being that such immunity existed despite the fact that the Baja California was not in appellant’s possession or service. The contention must be, and is, rejected upon the authority of Compania Espanola v. The Navemar, 303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667. Holding, as we must, that the claimed immunity did not exist, we need not and, I think, should not consider appellee’s contention that the right to claim it was waived by appellant.
My associates say: “It is conceded that the Republic’s [appellant’s] ownership and possession and her occupation in its service when the vessel [the Baja California] was attached * * * would entitle it to withdraw her from the court’s jurisdiction. * * * It is also conceded that * * * the decree must be affirmed if it be held that the Republic was not entitled to withdraw the Baja California from the admitted existing jurisdiction of the district court or, if so entitled, had waived its right to such withdrawal.” There are no such concessions. Appellant did not admit the District Court’s jurisdiction of the Baja California, nor seek to “withdraw” her from that jurisdiction. Instead, appellant sought her release upon the ground that she was immune from process, which is to say, upon the ground that the court had no jurisdiction of her; appellant’s suggestion being, in effect, a plea to thei court’s jurisdiction.3
My associates say: “The District Court * * * declined to allow the withdrawal of the vessel.” Actually, no question of “withdrawal” was ever presented to or considered by the court.
My associates say: “No default having been taken against the Republic, it was within its right to respond to the citation when * * * it filed its claim and answer to the libel in which it again asserted its sovereign right to withdraw the vessel. * * * However, it is claimed that the Republic’s answer * * * is a general appearance which waives its right to withdraw the vessel from the court’s jurisdiction.” Actually, appellant never asserted any right to “withdraw” the vessel. No such right having been asserted there was, of course, no claim that any such right had been waived. What appellant asserted in its suggestion and reasserted in its answer and claim was that the vessel was immune from process. Appellee contended that the claimed immunity, if it existed, was waived. Since, as we hold, the claimed immunity did not exist, the question of waiver need not be considered.
My associates say: “We hold that the [District Court’s] decision * * * holding adversely to the Suggestion of the right to withdraw the vessel, did not deprive the court of jurisdiction again to entertain it and that a sovereign in response to the citation in rem may assert * * * its reserved sovereign right to withdraw the vessel from the court’s jurisdiction.” There was in this case no suggestion or assertion of any right to “withdraw” the vessel from the court’s jurisdiction and, therefore, no decision on that subj ect.
My associates say: “The Republic claims that * * * the mere fact of ownership of her [the Baja California’s] title warranted her withdrawal from the court’s jurisdiction. * * * We hold that the Republic of Mexico was not entitled to withdraw the Baja California from the jurisdiction of the District Court.” Actually, no question of “withdrawal” is presented. Nowhere in the record or in the briefs of counsel is “withdrawal” mentioned. The first mention of it was by my associates.
*860Referring ,to the case of Compañía Española v. The Navemar, súpra, wherein a Spanish corporation libeled a Spanish vessel and obtained a default decree in the District Court of the United States for the Eastern District of New York, my associates say: “The Spanish Ambassador * * * sought to have the default decree set aside and (a) to withdraw the vessel from the jurisdiction of the district court, claiming ownership and possession in the Spanish Government, and (b) otherwise, if the jurisdiction was not withdrawn, to intervene and assert the Spanish Government’s ownership and right to possession. On the issue of the right to withdraw the vessel from the jurisdiction of the district court, the Ambassador’s affidavit * * * were met by the counter-affidavits of the corporation.” Actually, no “withdrawal” was sought, nor was any question of “withdrawal” presented, considered or decided in .the Navemar case. The Navemar case is, however, authority for the proposition that a vessel owned by, but not in the possession or service of, a foreign government is not immune from process.
The decree should be affirmed.
My associates (Judges Denman and Stephens) speak of this suggestion as “a Suggestion of the Mexican Consul at Los Angeles, California.” Actually, it was appellant’s suggestion, signed by its proctors, Ben Van Trees and James R. Jaffiray, members of the bar of the District Court and of this court.
The United States Attorney labeled his report “Suggestion by the United States Attorney for the Southern District of California.” My associates describe it as “a second suggestion transmitting a note of the Mexican Ambassador to our Secretary of State, but claiming no more than that the Baja California was owned by the Republic [appellant] when she came into the jui’isdietion of the Distinct Court.” Actually, the United States Attorney’s report claimed nothing, suggested nothing.
Cf. Compania Espanola v. The Navemar, supra.