(dissenting).
I am forced to the conclusion that my brothers have erred in their statement of the law applicable to this type case. I further believe that they have been unable to visualize and comprehend the far reaching effect and import of their decision. For these reasons, and in order to record a more detailed statement of the essential facts alleged, I have found it necessary to review and set out pertinent portions of the pleadings.
The original libel reveals that respondent, Compañía Transmaritima Columbiana, South America, was the owner of two merchant vessels, the Cali and the Alacran. The Cali, while delivering a shipment of approximately 30,000 bags of rice belonging to libelants from Ecuador to Cuba, began to leak, and was forced to put into the port of Georgetown, off Grand Cayman Island. There a portion of the rice cargo was discharged, and the remainder either severely damaged, or abandoned in the wrecked hull of the vessel so as to become a total loss. It is alleged that additional damage was done to that portion of the rice removed to the island of Grand Cayman, through the failure of respondent to take precautions against pilferage, and to provide for adequate storage. No portion *518of the shipment of rice was ever delivered to any of the libelants at their intended ports of destination in Cuba.
In their supplemental and amended libel, libelants charge:
“Since the filing of the original libel herein on March 7, 1948, libelant has learned that respondent Compañía Transmaritima Columbiana, S.A., has attempted, on or about March 4, 1948, to divest itself of its property and assets and particularly the Steamship Alacran in fraud of libelants’ rights. * * *
“Said Compañía Colombiana Del Caribe, S.A. was organized by the directors, officers and stockholders of respondent Compañía Transmaritima Columbiana, S.A., and no substantial monies were paid into its treasury for the issuance of the stock thereof, if any such stock were actually issued. Com-pañía Colombiana Del Caribe, S.A., is merely the creature or alter ego of Compañía Transmaritima Columbiana, S.A., and/or its directors,'officers and stockholders. The attempted transfer of the Steamship Ala-cran from Compañía Transmaritima Colum-biana, S.A., to Compañía Colombiana Del Caribe, S.A., was not for a real or valid consideration and no real equitable price was paid therefor but, as before alleged, said attempted transfer was wholly fictitious and in an attempt to defraud your libelants of their rights. * * *
“There is no real or actual difference between respondents Compañía Transmari-tima Columbiana, S.A., and Compañía Col-ombiana Del Caribe, S.A., and before this Court of admiralty of the United States they should be held to be, as they are, one and the same. * * * ”
The material portion of the prayer of the amended libel was worded as follows:
“ * * * In case said respondents can not be found within this district, then all goods and chattels belonging to them within this district and in particular a certain vessel formerly known as the Alacran, now registered under the name Caribe, now lying in the Panama Canal or within the waters constituting the Pacific entrance to said Canal, within, this district, its engines, boilers, tackle and gear of whatever nature or character, may be attached by process of foreign attachment in the amount of Three Hundred Eighty Thousand ($380,-000.00) Dollars, the sum sued for in this libel, with interest and costs and disbursements of your libelants. * * *
“Alternatively, that the Steamship Caribe, formerly the Alacran, be attached in the hands of respondent Compañía Colombiana Del Caribe, S.A., as being in reality the goods and effects of respondent Compañía Transmaritima Columbiana, S.A. and/or as the sole security for the agreed purchase price of said vessel in said purported sale from respondent Compañía Transmaritima Columbiana, S.A., to respondent Compañía Colombiana Del Caribe, S.A. * * * ”
I do not share the conclusion of the majority that jurisdiction in this case is doubtful, but believe the district court had jurisdiction to inquire into the ownership of the Steamship Caribe, and into the question of whether the alleged fraudulent transfer had effectively passed title to the vessel from respondent to Compañía Del Caribe. There is ample authority for the proposition that a court of admiralty has jurisdiction to inquire into the ownership of property attached under its process and into the bona fides of a sale of such property by a respondent, even where the purported assignment takes place prior to the attachment. Gardner et al. v. Dantzler Lumber & Export Co., Inc., 5 Cir., 98 F.2d 479; Chirurg v. Knickerbocker Steam Towage Co., D.C., 174 F. 188; Cf. Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265; The New York, 2 Cir., 113 F. 810, 811; The Columbia, D.C., 100 F. 890, 893; The Daisy, D.C., 29 F. 300, 301; Lee v. Thompson, et al., Fed.Cas. No. 8,202, 3 Woods 167; Ward v. Peck, 18 How. 267, 15 L.Ed. 383; The Tilton, Fed.Cas. No. 14,054, 5 Mason 465; Thurber v. The Fannie, Fed.Cas. No. 14,014, 8 Ben. 429. Even as early as 1878, before this court was created, the Circuit Court of Louisiana, which had substantially the same appellate jurisdiction as this court, laid down the rule thus:
“The power of the Court (of Admiralty) to entertain such contestations upon all seizures made under its authority would seem to be indispensable. It is as necessary that it should have power to decide between *519conflicting claims to property seized by attachment or on execution as in seizures upon libels in rem. * * * Without power to try the validity of conflicting claims, the court could not enforce its judgments for the payment of money. They could always be defeated by fraudulent and simulated transfers. If a third party comes in to claim the property which has been seized, he must submit himself to the jurisdiction of the court.” Lee v. Thompson, Fed.Cas. No. 8,202, 3 Woods 167.
Thereafter, in the case of Gardner et al. v. Dantzler Lumber & Export Co., Inc., 5 Cir., 98 F.2d 478, at page 479, this court looked through not only the register of a vessel, but also the bill of sale covering its alleged purchase, and in determining the question of its true ownership, Judge Foster observed:
“All the evidence on the question of ownership of the schooner tended to show that R. C. Gardner was her owner, except the denial of himself and brother and the deed of sale. This was not conclusive in view of the other evidence. Indeed, the presumption must be indulged that R. C. Gardner put the legal title of the vessel in his insolvent brother to avoid liability for possible claims arising from her operation. Courts of admiralty administer the broadest equity and may look through such transactions to ascertain the truth.”
As late as the year 1941, this court recognized that admiralty has jurisdiction of petitory as well as possessory suits in respect of ships or vessels engaged in navigation or commerce, wherein it stated :
“The jurisdiction actually invoked and exercised is that in admiralty. Admiralty jurisdiction, especially in petitory and pos-sessory suits, exists only in respect of ships or vessels engaged in navigation or commerce, and not over hulks, or vessels that have been permanently taken out of such use. * * * ” Kilb v. Menke, 5 Cir., 121 F.2d 1013, 1014.
Not one of the authorities cited by the district court or in the majority opinion establishes anything to the contrary. Cf. Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265; Yone Suzuki & Co. v. Central Argentine Ry., D.C., 19 F.2d 645, Yone Suzuki v. Central Argentine Ry., 2 Cir., 27 F.2d 795-806; The Ada, 2 Cir., 250 F. 194. Moreover, in view of the allegations in both the original and amended libels that Swift & Company Packers, who owned half of the entire cargo of the lost vessel, is a citizen of the United States, and the undisputed fact that all but one of the remaining libelants are citizens of Cuba, I am inclined to the view that the district court had no discretion to decline jurisdiction. The Copperfield, 5 Cir., 26 F.2d 175; In re Louisville Underwriters, 134 U.S. 488, 10 S.Ct. 587, 33 L.Ed. 991; Cf. The Belgenland, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152. Even if there be such discretion, the district court clearly abused its discretion in declining to exercise its jurisdiction on a mere summary motion to vacate the attachment, supported only by incompetent and hearsay affidavits and exhibits, when the jurisdictional facts were clearly in dispute. The Othello, Fed.Cas. No. 2,483; Cushing et al. v. Laird, Fed.Cas. No. 3,508; The Circassian, Fed.Cas. 2,721; L. Littlejohn & Co., Inc., v. United States, D.C., 49 F.2d 467; Sundquist v. Gray, D.C., 48 F.2d 638; The Algie, D.C., 50 F.2d 624; The Senator, D.C., 54 F.2d 420; Cf. United States v. Specified Quantities of Intoxicating Liquors et al., 2 Cir., 7 F.2d 835; Charter Shipping Company, Limited, v. Bowring, Jones & Tidy, Limited, 281 U.S. 515, 50 S.Ct. 400, 74 L.Ed. 1008.
There was no competent evidence whatever introduced in support of the motion to dismiss and vacate the attachment proceeding, nor was there any substantial conformity or compliance with Admiralty Rule 23, of the Canal Zone District Court Rules.1 The affidavits and exhibits of respondents’ counsel as to the lack of jurisdiction, and particularly as to the validity of the alleged *520fraudulent transfer under the laws of Colombia, are highly prejudicial and objectionable as self-serving, hearsay declarations, and should never have been considered by the district court. Christie v. Carlisle, D.C., 11 F.2d 659; Avalon-Presidente Wilson, 1929 A.M.C. 1602; The Hanna Nielsen, D.C., 25 F.2d 984. Furthermore, the copy of the vessel’s certificate of registry was competent to show only her nationality, and was not conclusive evidence of ownership. The Navemar, 303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667; The Kitty C, D.C., 20 F.Supp. 173.
The record reveals that on March 31, 1948, the original motion to vacate the attachment was presented to the district judge while on leave from the Canal Zone, and that he overruled same in the following order:
“After receiving respondents’ memorandum, the Court has diligently investigated the law and procedure herein and, after considering the pleadings, exhibits, the motion and memorandum in support of same, has arrived at the conclusion that the motion of respondents cannot be sustained at this time and on this showing.”
Thereafter, on September 20, 1948, the original district judge having retired and his successor having finally been appointed, and the long delay in the proceedings having been occasioned through no fault of libelants, the new judge issued an opinion in which he refused to entertain jurisdiction of the cause, whereupon the libels were dismissed and the attachment vacated. Since the original judge in the above ruling had already considered the question of declining jurisdiction, as a matter of discretion, libelants were entitled to rely upon this ruling, and the question of whether he properly exercised his discretion on the original motion was hardly open for review or further consideration by his successor in office. In any event, the case should not go off on the question of discretion, for the reason that the libel is filed principally on behalf of a citizen of the United States, and it is the unquestionable legal right of such citizen to bring an action in the courts of its own country. Furthermore, the original respondent which entered into this contract of carriage availed itself of the statutes of the United States in the contract itself,2 and both respondents use the territory and waters of the United States, including the Canal Zone, to carry out their contracts of affreightment. It further appears from the bills of lading that half the rice cargo was designated and marked as the property of “Swift & Company”, and thus the carrier knew, or should have known, that it was dealing with a citizen of the United States, as the ultimate owner of fifty per-cent of the entire cargo of the vessel. It makes no difference that libelants severally bought interests in the rice cargo while in transit, as they were nevertheless entitled to safe delivery of their respective property.
There is no merit whatever in the contention that the judgment of the district court is not final or appealable. It becomes manifest that if the holding that no maritime liability is asserted against Compania Del Caribe or the vessel Caribe is permitted to stand, that these libelants will be denied all effective and substantial relief. A personal judgment against a foreign corporation rendered by a Federal Court, where there is no security under court attachment, is practically worthless, for there would be no process enforceable against it. Our jurisprudence is practically uniform to the effect that courts will view the substance and effect of an order, to determine whether it is final and Of an appealable nature, rather than the mere form in which it is rendered. The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592; Baltimore & Ohio R. Co. v. United Fuel Gas Co. et al., 4 Cir., 154 F.2d 545; The Panaghia Kathariotisa, 3 Cir., 165 F.2d 430; Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; The Attualita, 4 Cir., 238 F. 909.
*521I take issue with the statement of the majority that “ * * * Neither on the hearing, nor on the rehearing completed September 20, 1948, more than six months after seizure, have libelants proved anything at all to support their contention, alleged on information and belief only, that the vessel is really the property of respondent. * * * ” Evidently, they ignore the fact that libelants introduced portions of the records in libel proceedings pending in two other district courts of the United States, which in some sort reveal that Walter W. Keene, one of the principal stockholders, and director and manager of both respondent corporations insured the lost M/V Cali not in the name of Compania Transmaritima, her supposed owner, but in his own name; that he personally collected the insurance thereon and presumably kept the proceeds, and otherwise treated both these Latin American Corporations as his personal chattels. This testimony of disinterested parties in other proceedings in the Federal courts of the United States strongly tends to show some connection between the two respondents, and sheds considerable doubt on the good faith of the alleged transfer.3 Moreover, having charged a fraudulent transfer in their supplemental libel, it was not incumbent upon libelants to prove their case by their pleadings, Rule 23 notwithstanding, but they were entitled to be heard upon the merits.4
Evidently, in relegating this case to the Colombian courts for trial, the majority has not considered the possibility that li-belants may, by virtue of this decision, be precluded from obtaining the relief sought in that jurisdiction, as well as here. The record reveals that the district court, in granting respondents’ motion to vacate this attachment, received into evidence and considered the “opinion” of one Ascanio Mulford, a Panama attorney who is alleged by respondents to have expert knowledge of the laws of Colombia, that the transfer of the vessel Caribe was not fraudulent under the laws of that country. Since Mul-ford was obviously an attorney paid by respondents, his “opinion” was not competent evidence of foreign law, and should never have been considered by the court. Christie v. Carlisle, D.C., 11 F.2d 659; Avalon-Pres-idente Wilson, 1929 A.M.C. 1602.
The supplemental and amended libel here charges in no uncertain terms gross fraud, and the district court, by resorting to the convenient expedient of declining to exercise its admiralty jurisdiction, has sent these libelants hence in a summary fashion without their day in court, and remanded them to a doubtful remedy in a foreign jurisdiction. The import of this decision, as precedent, appears to be that when foreign ship owners are about to be haled into our courts to answer for their negligence they may escape liability by a fraudulent transfer and sale of their vessels in a foreign jurisdiction,5 and thereby effectively oust our Federal courts of admiralty jurisdiction in attachment proceedings. They would thus be permitted to profit from their own wrong, and their vessels would be allowed to continue using our waters and the Canal Zone locks with impunity. I cannot subscribe to any such doctrine.
I conclude that on the record here presented there is no legal basis for the action *522of the district court in dismissing the libel against the respondent Compañía Del Caribe, and vacating the attachment against the vessel Caribe. The case should be reversed and remanded for a hearing on the charges as contained in the libel.
I respectfully..dissent.
Rule 23 of the Canal Zone Admiralty District Court Rules, which is quoted by the majority, is clear to the effect that unless competent evidence of either an “improper practice” or a “manifest want of equity” on the part of libelant be shown, tho order to show causo why the attachment should not be vacated will not issue. The rule shows clearly on its face that it is not applicable to the instant proceeding.
There is an endorsement on the contract of affreightment as follows:
“This bill of lading shall have effect subject to the carriage of goods by Sea Act of the U. S. A. [46 U.S.C.A. § 1300 et seq.] and the carrier and the ship shall be entitled to all of the rights and immunities set forth in said Act. To the extent that any term of this bill of lading is repugnant to or inconsistent with anything in such Act, it shall be void. * * *”
These other proceedings are apparently not reported, but pertinent excerpts therefrom have been included in the record. They are entitled, Swift & Company, Packers, et al. v. Compania Transmaritima Colombiana,* S. A., et al., in the United States District Court for the Southern District of New York, and Swift & Company, Packers, et al. v. Walter W. Keene,* et al., in the District Court of the United States for the Southern District of Texas.
No opinion for publication.
This is particularly true in view of the incompetent type of proof offered by respondents in support of their motion to vacate the attachment, which the majority admits, is “not of the most satisfactory kind”.
It should be remembered that for the purpose of considering the district court ruling on the motion to vacate the attachment, the allegations contained in the libel must be accepted as true. Benevento v. United States et al., D.C., 68 F.Supp. 347; The Illapel, (Schnell et al. v. United States) D.C., 69 F.Supp. 877, 1946 A.M.C. 1499; The Verna, D.C., 27 F.Supp. 679; Sundquist v. Gray, D.C., 48 F.2d 638.