EA Shipping Co., Inc. v. Bazemore, 3524

• Decision Date: 16 May 1980
• Docket Number: 78-1256,No. 3524,Nos. 78-1252,3524,s. 78-1252
• Citation: 617 F.2d 136
• Parties: EA SHIPPING COMPANY, INC., Plaintiff-Appellant, v. Albert F. BAZEMORE et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. ONE (1) LIBERIAN REFRIGERATOR VESSEL, M/V EA, Official, approximately 100.41 meters in length, Defendant. BANQUE FRANCAISE DU COMMERCE EXTERIEUR, Intervening Plaintiff-Appellee, v. M/V, her engines, tackle, apparel, appurtenances, etc., in rem, and Ea Shipping Co., Inc., her owner, in personam, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 136

617 F.2d 136

EA SHIPPING COMPANY, INC., Plaintiff-Appellant, v. Albert F. BAZEMORE et al., Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. ONE (1) LIBERIAN REFRIGERATOR VESSEL, M/V EA, Official No.

3524, approximately 100.41 meters in length, Defendant.

BANQUE FRANCAISE DU COMMERCE EXTERIEUR, Intervening Plaintiff-Appellee, v. M/V, her engines, tackle, apparel, appurtenances, etc., in

rem, and Ea Shipping Co., Inc., her owner, in

personam, Defendants-Appellants.

Nos. 78-1252, 78-1256.

United States Court of Appeals Fifth Circuit.

May 16, 1980.

Dewey R. Villareal, Jr., Tampa, Fla., Edwin Longcope, Allan J. Berdon, New York City, for appellants.

Martin H. Sachs, Atty., U. S. Dept. of Justice, Washington, D. C., Anthony J. La Spada, Asst. U. S. Atty., Tampa, Fla., Richard S. Friedland, Asst. Regional Counsel, U. S. Customs Service, Miami, Fla., for appellees, U. S.

Appeals from the United States District Court for the Middle District of Florida.

Before JONES, GEE and REAVLEY, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment of forfeiture of the M/V EA after a bench trial in the district court. The judge below concluded that there was probable cause for seizure of the vessel, that it was not a common carrier, and that if it was a common carrier, the government established that the master was a consenting party or privy to the illegal importation of cocaine because he had actual knowledge of its presence aboard the ship. United States v. One (1) Liberian Refrigerator Vessel, 447 F.Supp. 1053 (M.D.Fla.1977). After reviewing the record we are unable to say that the lower court was clearly erroneous in finding that the master of the ship had actual knowledge of the presence of cocaine on board; consequently, we affirm.

In the early morning hours on June 17, 1976, Customs authorities converged on individuals who were observed covertly passing dark packages out of a porthole on the M/V EA in Tampa, Florida. The vessel had been on round trip voyages between Turbo, Colombia, and Tampa, Florida, for at least two years. The participants fled upon approach of officials, but searches that day and the days that followed netted large quantities of cocaine. The contraband was eventually discovered on the vessel, in the water in the vicinity of the ship, and in nearby fields. The government thereafter seized the vessel and brought a forfeiture suit pursuant to 49 U.S.C. § 782 (1976), 21 U.S.C. § 881 (1976), and 19 U.S.C. § 1594 (1976), alleging that the ship had been used to facilitate the importation of cocaine. BANQUE FRANCAISE DU COMMERCE EXTERIEUR (BFCE), which held a First Preferred Ship's Mortgage was granted leave to intervene, and eventually summary judgment foreclosing its lien was entered in its favor. EA Shipping Company (EASC) filed a separate action seeking damages from various federal officials for the wrongful seizure and detention of the M/V EA and for the deterioration of the vessel after it was seized. The cases were consolidated and after a trial to the bench, the lower court entered a judgment forfeiting the M/V EA to the government and a judgment denying relief to EASC. The court subsequently ordered that the ship be sold and that sums sufficient to extinguish the mortgage debt be paid over to BFCE from the proceeds. EASC brought this appeal arguing only that it had established that the M/V EA was a "common carrier" within the meaning of the forfeiture statutes and that the owners and master of the vessel were not privy or consenting parties to illicit activity.

EASC does not contest the fact that the government established probable cause for bringing this forfeiture action. See generally United States v. One 1978 Chevrolet Impala, 614 F.2d 983 (5th Cir. 1980). Thereafter, the burden shifted to EASC under the forfeiture provisions to establish by a preponderance of the evidence that the conveyance was being operated as a common carrier. Cf. United States v. One 1975 Ford Pickup Truck, 558 F.2d 755, 756 (5th Cir. 1977) (per curiam); United States v. One 1972 Toyota Mark II, 505 F.2d 1162, 1164 (8th Cir. 1974) (both cases construe the parallel exception in the forfeiture statutes for violations committed by a person who unlawfully acquires possession of the vehicle).

In this case, however, the common carrier exception is unavailing because the government produced sufficient...