OCEAN MACHINERY CORPORATION v. United States

• Decision Date: 28 January 1959
• Citation: 1959 AMC 734,175 F. Supp. 288
• Parties: OCEAN MACHINERY CORPORATION, Libelant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

175 F. Supp. 288

1959 AMC 734

OCEAN MACHINERY CORPORATION, Libelant, v. UNITED STATES of America, Respondent.

United States District Court S. D. New York.

January 28, 1959.

Foley & Grainger, New York City, Joseph K. Grainger, Robert P. Whelan, New York City, Advocates, for libelant.

Arthur H. Christy, U. S. Atty., Benjamin H. Berman, Atty. in Charge Admiralty & Shipping Section, Dept. of Justice, Gilbert S. Fleischer, Admiralty and Shipping Section, New York City, Advocate, for respondent.

FREDERICK van PELT BRYAN, District Judge.

This is a suit in admiralty to recover the sum of $10,000 as the value of a rotary pump sold by libelant to the TMT Carib Queen, formerly the TMT Trailer Ferry.

The respondent United States is alleged to have become the owner of the vessel by bidding her in upon a sale in foreclosure of a preferred ship mortgage of which it was the holder. The sale was conducted by the United States Marshal in Jacksonville, Florida, pursuant to a writ of venditioni exponas issued by the United States District Court for the Southern District of Florida in the course of proceedings in rem instituted by the United States to foreclose its mortgage on the vessel. The pump is claimed to have been aboard the vessel when she was bid in by the Government.

The Government has excepted to the amended libel on the ground that it does not state facts sufficient to constitute a cause of action and has filed exceptive allegations setting forth various pertinent matters of public record.

The rather confusing amended libel includes in substance the following allegations:

Libelant furnished and supplied a suction rotary cargo pump to the TMT Carib Queen, formerly the TMT Trailer Ferry, at the instance of her owner, master, manager and agent in the value of $10,000 and was not paid therefor. The pump was an item of portable equipment capable of being removed from the vessel and was not necessary to the running of the ship or affixed to it. Prior to the Marshal's sale at which the United States became the owner of the vessel, and before the writ of venditioni exponas was issued, libelant had sued the then owners of the vessel in this court. The suit was transferred upon libelant's application to the United States District Court for the Southern District of Florida, Jacksonville Division, by an order providing inter alia that libelant would be afforded an opportunity to intervene in the cause (presumably the foreclosure cause) pending there. However, libelant was not afforded an opportunity to do so or to protect its rights, and though it attempted to have the pump exempted from the sale, its application was not passed upon or considered by the district court. The respondent knew of libelant's pending claim but did not notify libelant of the pending sale "except by ordinary advertisement". The libelant does not know the whereabouts of the pump since the sale of the vessel, but alleges (1) that "it now remains on board the TMT Carib Queen", and (2) that "it is not now on board the TMT Carib Queen". The pump rightfully belongs to the libelant but respondent has refused to deliver it or to pay the purchase price.

Libelant asks for a decree in the amount of $10,000 with interest and costs.

It is more than a little difficult to determine on what theory libelant proceeds, or, indeed, to perceive a theory on which it could succeed in the light of undisputed facts contained in the exceptive allegations which are matters of record and properly to be considered in ruling on the exceptions to the libel. See The Seminole, D.C.E.D.N.Y., 42 F. 924; Suspine v. Compania Transatlantica Centroamericana, D.C.S.D.N.Y., 37 F.Supp....