(dissenting).
Despite the ability of the majority opinion, I think the plea and motion on behalf of the Republic of Cuba for the release of her ship, M/V Ciudad De La Habana, from arrest and attachment should have been granted on the basis of sovereign immunity. Without passing upon the availability or merits of Cuba’s claim of immunity, the District Court disallowed it as waived through tardiness in presentation and this view is now approved.
I. I find no waiver by Cuba. After the filing of the amended libel in October 1959, and the hearing in December on exception and pleadings to the jurisdiction, nothing was done in the District Court until the February 1960 order upholding jurisdiction. The proceeding then remained inactive before the court until October 27, 1960, the day Cuba’s claim was filed. According to the docket entries, no action was sought of the court before Cuba’s immunity plea was lodged in May 1962. She had already filed a proper suggestion with the State Department. No one appears prejudiced by the delay, and so in admiralty Cuba would not be precluded by laches. 3 Benedict on Admiralty 295 (6th ed. 1940); Gardner v. Panama R.R., 342 U.S. 29, 30, 72 S.Ct. 12, 96 L.Ed. 31 (1951).
Cuba’s appearance to claim the ship and to defend the first and intervening libels was not a waiver of immunity. Ex Parte Republic of Peru, 318 U.S. 578, 589, 63 S.Ct. 793, 800 (1943). Chief Justice Stone spoke to this point:
“Nor, in view of the purpose to be achieved by permitting the immunity to be asserted, are we able to perceive any ground for saying that the district court should disregard the claim of immunity, which a friendly sovereign is authorized to advance by way of defense in the pending suit, merely because the sovereign has seen fit to preserve its right to interpose other defenses. * * * ”
Contrary to the intimation of the majority, it cannot be said that in this context Cuba is an “unfriendly” power. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410, 84 S.Ct. 923 (1964). Again, a claim by a foreign sovereign is not a general appearance. Ex Parte Muir, 254 U.S. 522, 532, 41 S.Ct. 185 (1921); Ervin v. Quintanilla, 99 F.2d 935, 939 (5 Cir. 1939), cert. denied, 306 U.S. 635, 59 S.Ct. 485, 83 L.Ed. 1037 *628(1939). It is but the exercise of a nation’s right to remove her property. Nor does the added explanation of how ownership was acquired effect a waiver. Indeed, an explanation is procedurally correct. Ex Parte Muir, supra. Punctilious, also, is a prayer for dismissal of the libel. Ervin v. Quintanilla, supra.
Cuba's appearance was not voluntary. The Habana had been proceeded against in rem in twofold fashion: first, as a principal respondent to the libel and then as an ancillary party defendant under the foreign attachment issued on the in personam libel of Flota v. Banco. Cuba was not sued. These processes against the ship demanded an appearance by the owner at the risk of losing her. The A. J. Meerwald, 37 F.Supp. 808, 811 (D.N.J. 1940). Had Cuba not made the claim, then despite her actual possession and undisputed ownership, a decree of sale would have forever and absolutely divested her ownership. The decree “binds the world”. 2 Benedict on Admiralty 43 (6th ed. 1940). In Hilton v. Guyot, 159 U.S. 113, 167, 16 S.Ct. 139, 144, 40 L.Ed. 95 (1895) it is said:
“A judgment in rem, adjudicating the title to a ship or other movable property within the custody of the court, is treated as valid everywhere. As said by Chief Justice Marshall: ‘The sentence of a competent court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of the property. By such sentence the right of the former owner is lost, and a complete title given to the person who claims under the decree. No court of co-ordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general or municipal law can never arise, for no co-ordinate tribunal is capable of making the inquiry.’ * * The most common illustrations of this are decrees of courts of admiralty and prize, which proceed upon principles of international law.
* * *»
This feature — an appearance in invitum — distinguishes the instant ease from People of Porto Rico v. Ramos, 232 U.S. 627, 34 S.Ct. 461 (1914) and Richardson v. Fajardo Sugar Co., 241 U.S. 45, 36 S.Ct. 476 (1916). In the former, the People of Porto Rico of her own volition and over the objection of the plaintiff entered the suit to oppose the plaintiff’s action. In contrast, thereafter she endeavored to assert immunity from suit— unsuccessfully of course. In Fajardo, Porto Rico was a sovereign sued in personam and so she could have ignored the suit in the Federal court without fear of a default judgment, for a judgment entered without her consent would be void. People of Porto Rico v. Rosaly Y Castillo, 227 U.S. 270, 33 S.Ct. 352, 57 L.Ed. 507 (1913). The Uxmal, 40 F.Supp. 258 (D.C.Mass.1941), cited by the majority to sustain waiver is unpersuasive because the Court found the ship there was not owned by the foreign sovereign. Likewise unimpressive is The Sao Vicente, 281 F. 111 (2 Cir. 1922) and 295 Fed. 829 (3 Cir. 1924); where the claims were disposed of on the ground of faulty presentation. Importantly, Cuba was in uncontested possession and ownership of the Habana- — she was not the aggressox*, but only a neutral between the contesting parties.
II. The doctrine of the United States, I believe, gives sovereign immunity in the circumstances. True, the State Department has not represented to this court its approval of Cuba’s suggestion of immunity, so that determination of its allowance is a judicial question. Ex Parte Republic of Peru, supra, 318 U.S. 578, 587, 63 S.Ct. 793; Compania Espanola De Navagacion Maritima, S.A. v. The Navemar, 303 U.S. 68, 74-75, 58 S.Ct. 432 (1938); Rich v. Naviera Vacuba, S.A., 295 F.2d 24, 26 (4 Cir. 1961). But conclusive for me is the law as enunciated and expounded by the Supreme Court in Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562, 46 S.Ct. 611 (1926). So parallel are the facts there we quote the *629Court’s narrative at p. 570, 46 S.Ct. at p. 611:
“In the libel the vessel was described as a general ship engaged in the common carriage of merchandise for hire. The Italian ambassador to the United States appeared and on behalf of the Italian government specially set forth that the vessel at the time of her arrest was owned and possessed by that government, was operated by it in its service and interest, and therefore was immune from process of the courts of the United States. At the hearing it was stipulated that the vessel when .arrested, was owned, possessed, and controlled by the Italian government, was not connected with its naval or military forces, was employed in the carriage of merchandise for hire between Italian ports and ports in other countries, including the port of New York, and was so employed in the service and interest of the whole Italian nation, as distinguished from any individual member thereof, private or official, and that the Italian government never had consented that the vessel be seized or proceeded against by judicial process.” (Accent added.)
The Court affirmed the allowance of the plea of immunity and on that ground entered a decree dismissing the libel.
Nevertheless, Flota vigorously argues and the majority opinion apparently implies that the immunity of a foreign flag would not extend to a commercial vessel, «ven though she sails in the name of or for the sovereign. The argument is that. •only warships or vessels clearly employed in an integral governmental function are .secure. This contention was dealt with for the Court in the Berizzi case by Justice Van Devanter at 574, 46 S.Ct. at p. 612:
“We think the principles are applicable alike to all ships held and used by a government for a public purpose, and that when, for the purpose of advancing the trade of its people or providing revenue for its treasury, a government acquires, mans and operates ships in the carrying trade, they are public ships in the same sense that war ships are. We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace as any less a public purpose than the maintenance and training of a naval force.” (Accent added.)
Confessedly, the Habana was devoted to the “purpose of advancing the trade” of Cuba. Severance of diplomatic contacts did not bar prosecution of her immunity claim. Banco Nacional de Cuba v. Sabbattino, supra, 376 U.S. 398, 410, 84 S.Ct. 923; Calderone v. Naviera Vacuba, S.A., 325 F.2d 76 (2 Cir. 1963). When the marshal arrested the Habana, she was not only in the ownership but also in the possession of Cuba. Also ante litem motam, Flota had been notified that all future instructions in respect to the ship would come from a Cuban government agency. Thus, there is not here the want of foreign custody which dissolved immunity in Mexico v. Hoffman, 324 U.S. 30, 65 S.Ct. 530, 89 L.Ed. 729 (1945).
I am not unaware of the able administrative commentaries to the effect that the rule of the Berizzi case is no longer the attitude of the United States Department of State. They maintain that under the “restrictive” doctrine immunity will not be allowed a foreign country’s vessel used in a private-type enterprise rather than for a conventional governmental purpose. Restatement, Foreign Relations Law, Explanatory Note § 72, reporters’ notes at 232 (Proposed Official Draft, May 3, 1962); Policy Research Study, The International Law of Sovereign Immunity by Joseph M. Swenney, p. 33 (Bureau of Intelligence and Research, U. S. Dept. of State) (Oct. 1963). But nowhere do I find the Supreme Court professing any change in its outlook, and I would await its own articulation, words for me preferable even to a scholar’s forecast. Policy Research Study, supra, p. 21, 33.
*630At all events, the evidence does not warrant the application of the restrictive policy. The Habana had never entered into commerce. There is no avowal by Cuba of any such plan. Indeed, Cuba has not had any use whatsoever of the vessel since her acquisition. The Supreme Court of Canada emphasized the same want of proof in the suit, infra, before it:
“The material before us clearly indicates that at the time of their arrest the defendant ships, although lying idle in Halifax harbour and being equipped as trading or passenger ships, were nonetheless owned by and in possession of a foreign state and were being supervised by G.T.R. Campbell & Company which company was accounting for such supervision to ‘a division of the Ministry of Revolutionary Armed Forces, Republic of Cuba.’ Although the ships might ultimately be used by Cuba as trading or passenger ships, there is no evidence before us as to the use for which they were destined, and * * * I nevertheless do not feel that we are in a position to say that these ships are going to be used for ordinary trading purposes. All that can be said is that they are available to be used by the Republic of Cuba for any purpose which its government may select, and it seems to me that ships which are at the disposal of a foreign state and are being supervised for the account of a department of government of that state are to be regarded as ‘public ships of a sovereign state’ at least until such time as some decision is made by the sovereign state in question as to the use to which they are to be put.”
III. The immunity policy of the United States, as I see it, accords with Canada’s. Cf. Ervin v. Quintanilla, supra, 99 F.2d 935, 940. For this reason, I think the judgment of the Supremé Court of Canada dismissing Flota’s suit, upon the plea of sovereign immunity, is not to be rejected on the score of a diversity of policies. Likewise, the removal of the-Habana from Nova Scotia to Baltimore to-fit her for trade ventures does not destroy the factual analogy of the two eases. The seven ships at Halifax, it must be-remembered, were undergoing conversion into “trading or passenger ships”.
I do not think that Flota may relitigate-the very issues it voluntarily put before-the Canadian courts. There was no question of jurisdiction. The final decree-binds Flota on the present issue of immunity because it was rendered in a controversy between Cuba and Flota, the-suitor, in which Cuba had appeared personally.
After examining the point at length in Hilton v. Guyot, supra, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95, the Court said in. the companion case of Ritchie v. McMullen, 159 U.S. 235, 242, 16 S.Ct. 171, 174,. 40 L.Ed. 133 (1895) :
“By the law of England, prevailing in Canada, a judgment rendered, by an American court under like circumstances would be allowed full and conclusive effect. * * *
“The defences set up in the answer-to this action upon the Canadian, judgment reduce themselves to an attempt, without any sufficient allegation of want of jurisdiction of the-cause or of the defendant, or of any fraud in procuring that judgment, or of any other special ground for not allowing the judgment full effect,, but upon general allegations setting up the same matters of defence-which were pleaded and might have-been tried in the foreign court, to-reopen and try anew the whole merits of the original claim in an action-, upon the judgment. This, for the reasons stated in Hilton v. Guyot [ante, 159 U.S. 113, 16 S.Ct. 139,] supra, cannot be allowed.”
IV. Finally, even if the “restrictive”" policy should be applied, or if there was-a waiver of immunity in regard to jurisdiction, still no sale of the Habana to-satisfy a recovery by Flota of Banco-*631could be decreed against her. See New York and Cuba Mail Steamship Co. v. Republic of Korea, 132 F.Supp. 684, 687 n. 7 (S.D.N.Y.1955). It is authentically recognized that even the restrictive theory does not sterilize the foreign state’s immunity from the execution of a judgment. Secretary Rusk’s News Conference, 45 State Dept. Bull. 277-78 (Aug. 14,1961); Policy Research Study, supra, p. 48. Nor does waiver of jurisdiction-immunity constitute waiver of execution-immunity. Dexter & Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705 (2 Cir. 1930).
With deference I question the majority’s syllogism that the sovereign’s immunity is only from initial seizure, that such seizure is for execution as well as jurisdiction and, ergo, having waived initial seizure, execution is thereby also waived. There is many a slip between seizure and execution. Waiver of the first is by no means a surrender to the latter — any more than acknowledgment of process at law is consent to levy of a fieri facias. Execution, as used in connection with sovereign immunity, means the sale of the property. It is not effectuated by the arrest or the attachment. There is no equation of them with sale. Sale can be had only after decree implemented by a writ of venditioni exponas. 3 Benedict, supra, 252.
The Department of State, commentator and precedent, all observe the distinction between seizure and execution. Secretary Rusk’s News Conference, supra, 45 State Dept. Bull. 277-78; Policy Research Study, supra, p. 48; Dexter & Carpenter, Inc. v. Kunglig Jarnvagssty-relsen, supra, 43 F.2d 705. Certainly there is no proof here of waiver of the right to resist the sale. Indeed, auction of a foreign sovereign’s unquestioned estate might, by infringing the province of international affairs reserved to the Executive in the United States, “give offense” in foreign adjustments and “to the prerogative right not to have sovereign property subject to suit.” Cf. Banco Nacional de Cuba v. Sabbattino, supra, 376 U.S. 398, 431, 438, 84 S.Ct. 923, 945.
Under the execution-immunity policy, as I understand it, the District Court is left to a bare adjudication of the- issues presented — determination of the liability of the ship, if there is a maritime claim against her- — without enforcement of any decree. Thereafter satisfaction of the adjudication is left to the channels of diplomacy. Hence, release of the Habana now, semble, could be readily stipulated. But if for jurisdictional considerations she should not now be released, the vessel ought not to be held after the termination of this suit unless in the meantime Cuba waived immunity.
V. As it has not been pursued further, I have assumed the correctness of the District Court’s ruling that admiralty had jurisdiction because the agreement in suit was primarily a charter party, a matter admittedly within the admiralty, rather than a sale which is a transaction of questionable maritime legitimacy. But I am not certain that a breach of the Flota-Banco agreement would create a maritime lien upon the vessel. See Osaka Shosen Kaisha v. Pacific Export Lumber Co., 260 U.S. 490, 43 S.Ct. 172, 67 L.Ed. 364 (1923). If it does not, then the query arises as to how Flota’s in rem libel of the Habana could be pressed against the vessel, regardless of any waiver of immunity. The foreign attachment would fall because Banco was not the owner of the ship. I mention these issues simply to disavow any understanding on my part that the Court is by its remand impliedly upholding admiralty jurisdiction of Flota’s claim against the vessel. I have no doubt that on the only question before us — Cuba’s right to possession of thé Habana by virtue of sovereign immunity — there is maritime jurisdiction. Compania Espanola v. Navemar, supra, 303 U.S. 68, 75, 58 S.Ct. 432; Rich v. Naviera Vacuba, S.A., supra, 295 F.2d 24, 26 (4 Cir. 1961). Of other admiralty jurisdiction I am not so clear.
In my judgment the decree denying Cuba sovereign immunity should be vacated, and the cause remanded to the District Court with directions to release the vessel to the diplomat representing Cuba.