Air Shipping Intern. v. State

• Decision Date: 09 January 1981
• Citation: 392 So.2d 828
• Parties: AIR SHIPPING INTERNATIONAL, a corporation, et al. v. STATE of Alabama et al. 79-493.
• Court: Alabama Supreme Court

Page 828

392 So.2d 828

AIR SHIPPING INTERNATIONAL, a corporation, et al. v. STATE of Alabama et al.

79-493.

Supreme Court of Alabama.

Jan. 9, 1981.

William J. Baxley and James S. Ward of Baxley, Stuart, Ward & Dillard and Claiborne P. Seier and Douglas Rogers, Birmingham, for appellants.

Ray Acton, Asst. Atty. Gen., Robert W. Ennis, IV, Asst. City Atty., City of Tuscaloosa, Richard H. Peollnitz, Greensboro, Robert E. Morrow, Dist. Atty., Fourth Judicial Circuit, Selma, for appellees.

BEATTY, Justice.

This is an appeal from the Hale County Circuit Court condemning and forfeiting one DC6-A type airplane, the "Aruba Star." We affirm.

The two appellants are Air Shipping International Corporation, located in Miami, Florida, and International Aircraft Sales and Leasing Corporation of Ft. Lauderdale, Florida. Prior to the incident in question, Air Shipping had purchased the aircraft from International Aircraft, with the latter retaining a security interest in the aircraft for the unpaid purchase price which at the time of trial aggregated some $90,000.00. Air Shipping had leased the aircraft to International Freight and Trailers, Inc., a California corporation, and this lease was extant when the aircraft was seized.

At approximately 4:00 o'clock A.M. on June 12, 1979 this aircraft landed at the Greensboro Airport in Hale County. City, county and state law enforcement agents seized it and 9,310 pounds of marijuana which was aboard. On June 21, 1979 the State of Alabama initiated condemnation proceedings. Subsequently, Air Shipping filed an answer, and International was allowed to intervene.

A trial on the petition for condemnation occurred on November 13, 1979. Thereafter, on February 8, 1980 the circuit court entered an order condemning the airplane and ordering a public sale. This appeal was taken on March 21, 1980 by Air Shipping, as owner, and by International, as holder of a security interest.

The aircraft was forfeited under the provisions of Code of 1975, § 20-2-93:

(4) All conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport ... for the purpose of sale or receipt of property described in subdivision (1) or (2) of this subsection (controlled substances); provided, however, that:

c. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission ....

The record discloses that the State of Alabama proved that the aircraft in question was in fact used to transport marijuana for the purpose of sale or receipt; indeed, this is not disputed by the appellant. Such proof established a prima facie case for forfeiture under our cases:

It is the law of Alabama that once the State makes out a prima facie case to show violation of the statute which prohibits the transportation of (illegal liquors), the seizure, condemnation, and forfeiture of the vehicle used (are) permitted.... (U-Haul Company of Alabama v. State, 294 Ala. 330, 316 So.2d 685 (1975); Mars v. State, ex rel. Black, Ala.Civ.App., 340 So.2d 1131 (1976).)

When that prima facie case was made, it became incumbent upon the appellants/claimants to show that they had no knowledge or notice of the illegal use proved, and could not by reasonable diligence have obtained knowledge of the intended illegal use so as to prevent it. U-Haul Company of Alabama v. State, supra. This aspect of the claimants' burden has been commented upon in Flint Motor Car Co. v. State, 204 Ala. 437, 85 So. 741 (1920), a case, incidentally, cited to us by both sides:

(I)f the claimant knows the character of his vendee or mortgagor, and does not know or has not heard of his violating (the prohibition law) or if he does not know him, ordinary prudence should suggest inquiry, and if he does not gain information that he has been considered a violator of (the prohibition law), then he makes out a prima facie case of no negligence in the sale or disposition of (the car), and would be entitled to a decree of nonforfeiture of his claim unless the state rebuts this prima facie case by contradictory evidence or circumstances, or by showing the happenings of subsequent events which would arouse the suspicion of a reasonably prudent man so as to cause action upon his part to prevent the further use of the property for unlawful purposes, and which he failed to prevent.

The appellants' positions are that they did not know of any illegal use and that they did exercise reasonable diligence in the lease of the aircraft without having obtained any such knowledge or notice. The State of Alabama, on the other hand, maintains that the appellants failed to meet their burdens of establishing proper diligence. The resolution of this issue centers around the conduct of Alvaro Robert, the owner of Air Shipping. Mr. Robert was in the import and export business, and also leased large cargo aircraft. He had purchased the "Aruba Star" from International Aircraft Sales and Leasing Corporation on October 13, 1978 for a price of $185,000.00, approximately $90,000.00 of which was still owed. His testimony reveals knowledge on his part of other aircraft having been used to smuggle drugs, and his awareness that in his area no one was leasing aircraft because of the drug problem. In fact, prior to this incident he had been concerned that his aircraft might be used to transport illegal narcotics. He had, in fact, previously sold two aircraft which were subsequently involved in narcotics smuggling, and was aware that this particular airplane had been involved in a smuggling operation before he acquired it. Nevertheless, before the occasion in question the aircraft had been leased a number of times without incident.

On June 1, 1979 Mr. Robert received a telephone call from a Mr. Hernandez, a business acquaintance whom Mr. Robert had known for about one year. According to Robert, Hernandez told Robert that some people from California were in his office and that they desired to lease an airplane. Their own airplane had broken down and they were in danger of losing a contract, he was told. Robert went to Hernandez's office where he was introduced by Hernandez to a man named Schwartz and to another man Robert did not remember, neither of whom had Robert met before. Schwartz showed Robert some paperwork concerning his contract, which was for moving construction material from Panama to Venezuela. Schwartz also showed Robert a photograph of his own aircraft, also a DC6-A, which Schwartz said was being...