THE MOTOR VESSEL K-22845

• Decision Date: 11 January 1932
• Docket Number: No. 131.,131.
• Citation: 55 F.2d 671
• Parties: THE MOTOR VESSEL K. 22845.
• Court: U.S. Court of Appeals — Second Circuit

55 F.2d 671 (1932)

THE MOTOR VESSEL K. 22845.

No. 131.

Circuit Court of Appeals, Second Circuit.

January 11, 1932.

Frederick Pepper, for appellant.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg and Alfred C. McKenzie, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.

Joseph H. Wackerman, of Brooklyn, N. Y. (Murty J. O'Connor, of Brooklyn, N. Y., of counsel), for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

On August 14, 1930, a Coast Guard vessel overhauled and seized the motor boat, K. 22845, in territorial waters of the United States, and arrested her owner and another, then aboard, on the ground that she was transporting liquors unlawfully. They brought her and her cargo to shore, but it does not appear whether they kept possession of the vessel, turned her over to the local collector of customs, or abandoned her altogether. On August 22, 1930, the libelant filed the libel in suit for a maritime lien for repairs, and the marshal arrested the boat. The suit proceeded to decree and sale which resulted in a surplus, to forfeit which the United States intervened on October 28, 1930, by petition in the nature of a libel of information, alleging that the boat had been seized while violating section 26 of title 2 of the Volstead Act (27 USCA § 40). (The petition included various other causes of forfeiture, but in view of Richbourg Motor Co. v. U. S., 281 U. S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, 73 A. L. R. 1081, these have now been abandoned.) Pending the proceedings the men arrested pleaded guilty and were sentenced for violation of sections 3 and 26 of title 2 of the Volstead Act (27 USCA §§ 12, 40).

It does not appear from the record who had custody of the boat at the time of her arrest under the libel. All we are told is that the marshal "attached" her. If this is to be taken literally, it means that he took possession of her and perhaps we should assume that he took her from the Coast Guard officials or the collector of customs, but whether unlawfully, or by a voluntary surrender, we cannot know. Were the dispute between two claimants, contesting title under two bills of sale, one under the sale on the libel for repairs, the other under condemnation on a libel of information, a case would be presented like The Motor Boat No. L-7869, 21 F.(2d) 594 (C. C. A. 3). We should have to determine whether the possession of the marshal must be presumed to have resulted from a voluntary surrender by the Coast Guard or the collector; and if not, whether a libel of information could be maintained against a res of which the original captor had been unlawfully dispossessed. The Rio Grande, 23 Wall. 458, 23 L. Ed. 158, does not answer that question, because the court had constructive possession when the libel was filed. In general such possession at least of the forfeited property is a condition precedent to a libel of information. The Ann, 9 Cranch, 289, 3 L. Ed. 734; The Josefa Segunda, 10 Wheat. 312, 6 L. Ed. 329; Dobbins's Distillery v. U. S., 96 U. S. 395, 24 L. Ed. 637; United States v. Larkin, 153 F. 113 (C. C. A. 6); United States v. George Spraul & Co., 185 F. 405 (C. C. A. 6). If voluntarily surrendered, no libel will lie; if the captor has been wrongfully dispossessed, it is at least open to question whether he must not regain custody in order to proceed at all.

We have not that situation before us, because the government did not attempt to proceed against the vessel, and does not challenge the jurisdiction of the court to sell it under the libel in suit. Its position is that it may proceed to forfeit the surplus by petition — equivalent to a libel of information — treating it as a substitute for the vessel and as in the custody of the court. It argues that since section twenty-six declares the property forfeit upon seizure in flagrante delicto, and since upon condemnation the title relates back to the act of forfeiture (United States v. Nineteen...