The Two Marys
| Decision Date | 04 April 1882 |
| Citation | 12 F. 152 |
| Parties | THE TWO MARYS. |
| Court | U.S. District Court — Southern District of New York |
Scudder & Carter and Geo. A. Black, for motion.
H. B Kinghorn and R. D. Benedict, opposed.
BROWN D.J.
The libellant, on January 25, 1879, filed a libel for supplies furnished to the Two Marys during the year 1878. Process was served upon the schooner while she was in the ship-yard of Hawkins undergoing enlargement and repairs, but she was not then taken into the custody of the marshal. On the sixteenth of September following, while still in possession of Hawkins as he claimed, she was seized by the marshal upon the waters adjacent to his yard and removed to this city. On September 22d Hawkins filed his claim as a lienor in possession claiming to be restored to possession, and on the same day gave a bond under the act of 1847 for the libelant's claim, but did not obtain the possession of the vessel thereby, as Crowley, the captain and owner of one-sixteenth also claimed to be in possession. The facts appertaining to this controversy have been stated in previous opinions of this court. 10 Ben. 558; The Two Marys, 10 F. 919.
On October 14, 1879, the marshal retook possession of the vessel under the order of this court. On October 20th Crowley filed his claim, stating that he was the master and owner of one-sixteenth; that he was in possession prior to the seizure by the marshal; and demanding that possession be restored to him. He gave a stipulation for costs, but no bond or stipulation for value. On October 24th exceptive allegations were filed to the claim of Hawkins, alleging that he had no lien or interest recognizable in this court. On October 29th Hawkins filed a petition that the libel be dismissed for want of jurisdiction, alleging that the libellant had no lien, to which petition answers were filed by Crowley and libellant, on November 21st, and upon these answers to the petition the libellant and Crowley moved that the said petition to dismiss the libel be itself dismissed. On the eleventh of December the opinion of my predecessor was filed, directing that both motions be denied, and directing a reference upon the exceptive allegations as to Hawkins' right to appear in the suit. An order of reference accordingly was entered on December 23d, and upon the report of the referee this court, in the opinion of March 6, 1882, decided that Hawkins had a common-law possessory lien upon the vessel, at the time of her arrest by the marshal, which entitled him to a standing in this suit. The Two Marys, 10 F. 919.
On December 23, 1879, a further order was entered, denying the motion of Hawkins to dismiss the libel, and the counter-motion to dismiss the petition, which order recited that it was 'conceded on the part of Hawkins that his petition was not filed under the thirty-fourth rule, but only as a ground for dismissing the libel, without prejudice, however, to any right he might have by proper proceedings thereafter to intervene under said thirty-fourth rule;' and the order directed that 'said petition remain on file as a ground for a motion to dismiss the libel after the determination of the right of said Hawkins to become a claimant herein.'
The right to appear in the suit having been now decided in favor of Hawkins, this motion is made in his behalf upon the facts stated in the said petition of October 29, 1879, for leave to intervene under the thirty-fourth rule; that said petition stand as such petition of intervention; that he be allowed to amend the ninth article thereof by inserting the averment that the libellant...
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Clifford v. Merritt-Chapman & Scott Corporation
... ... Admiralty Rule 42 (28 USCA § 723); The Lottawanna, 21 Wall. 559, 582, 22 L. Ed. 654. The warehouseman's possessory lien was not removed by the seizure in admiralty but will be given due effect by the admiralty court. The B. F. Woolsey (D. C.) 7 F. 108; The Two Marys (D. C.) 10 F. 919. The lien 57 F.2d 1026 might have been asserted by a claim, or, as was done, by an intervention praying payment. The Two Marys (D. C.) 12 F. 152. Aside from the storage contract and the statutory lien, the court may award reasonable compensation for the protection of the cargo ... ...
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THE RICHMOND
... ... That petition is not at all in the nature of an answer to the Loveland or other libel, and does not deny the validity or amount of the claim of any libelant. Even if an intervening petitioner 2 F.2d 905 may in and by his intervening petition contest the claim of the libelant (see The Two Marys D. C. 12 F. 152; The Clara A. M'Intyre D. C. 94 F. 552, 555), this one does not attempt to do so. As the purpose of that petition was to establish a liability of the proceeds of sale because, as it is alleged, the boat was liable, it would seem clear that the petitioner gained nothing by its delay ... ...
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The Julia
... ... given security, and released the vessel. The libels filed ... after her arrest and the advertisement were interventions ... They do not demand the redelivery of the vessel, and seek ... only the payment of a claim in the ultimate disposition of ... the case. The Two Marys, 12 F. 152. They were properly in the ... form of a libel, and properly prayed warrant of arrest, and ... as properly the warrants were in the hands of the marshal, ... not, however, to be acted upon immediately, but 'for the ... purpose of securing the further detention of the property in ... ...
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Garcia v. Beauregard
... ... There is authority for bringing an in rem action against the ship for alleged unseaworthiness. See Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, and Grillea v. United States, 2 Cir., 1956, 232 F.2d 919. Furthermore, in The Two Marys, D.C.S.D.N.Y.1882, 12 F. 152, a lienor who came in originally as claimant and took possession of the ship was held to that election to protect the libelant's security. While the facts in The Two Marys differed, the same principle can be applied in the instant case. Beauregard, Inc., at the ... ...