THE PIETRO CAMPANELLA

• Decision Date: 13 October 1942
• Docket Number: 2499.,No. 2498,2498
• Citation: 47 F. Supp. 374
• Parties: THE PIETRO CAMPANELLA. THE EURO.
• Court: U.S. District Court — District of Maryland

47 F. Supp. 374

THE PIETRO CAMPANELLA.

THE EURO.

Nos. 2498, 2499.

District Court, D. Maryland.

October 13, 1942.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., and H. B. Finn, Sp. Asst. to Atty. Gen., of Washington, D. C., for the Government.

Albert Parker, of Washington, D. C., for Alien Property Custodian.

Homer L. Loomis, of New York City, and Hilary W. Gans, of Baltimore, Md., for claimants.

CHESNUT, District Judge.

The present war with Italy has led to another unusual situation with respect to the possession, ownership, title and legal interest in the two Italian cargo ships involved in the above entitled cases. The present Alien Property Custodian has now filed a petition praying to be substituted for the prior owners of the ships who are the "claimants" of the ships in these admiralty cases instituted by the United States for their forfeiture. The extent and scope of the prayer for substitution, and the expressed purpose thereof, is to make the Alien Property Custodian dominus litis for all purposes of the case to the exclusion of further participation therein by the claimants. One effect of the order if granted would be to permit the Alien Property Custodian, if he so elects, to consent to a decree of forfeiture in favor of the United States. The claimants by counsel have answered the petitions strenuously opposing an order which would in effect preclude them from further contesting the claim of the United States for forfeiture. The claimants also by petitions pray for the suspension of further proceedings in the case for the duration of the war in order that they may have fuller opportunity to contest the claim for forfeiture. Counsel for the parties have been heard on these opposing motions.

Proper consideration of the conflicting contentions requires a brief review of the prior proceedings in these cases. In March 1941 the motive power of the two ships, then lying at anchor in the Port of Baltimore, was intentionally injured or destroyed by the masters and crew of the ships under orders from the Naval Attache of the Italian Embassy to this country. For these acts the master and certain members of the crew of each ship were indicted, tried and convicted in this court under 18 U.S.C.A. ž 502, and the judgments were affirmed by the Circuit Court of Appeals for the Fourth Circuit and certiorari denied by the Supreme Court. Bersio v. United States, 4th Cir., 124 F.2d 310; Id., 316 U.S. 665, 62 S.Ct. 1033, 86 L.Ed. 1742. Similar cases arose and were decided in other districts. Marchese v. United States, 5th Cir., 126 F.2d 671; United States v. Tomicich, D.C., 41 F.Supp. 33; United States v. Saglietto, D.C., 41 F.Supp. 21; United States v. Martini, D.C., 42 F. Supp. 502.

On July 19, 1941 the United States filed libels against both ships for the forfeiture thereof by reason of the said wilful damage, under 50 U.S.C.A. ž 193. On August 14, 1941 claim for the Pietro Campanella was filed on behalf of Societa Navigazione Tito Campanella, Genoa, Italy, and for the Euro on behalf of Societa Navigazione Ligure di Armemento of Genoa, Italy.

On September 9, 1941 the United States Maritime Commission requisitioned the use (not the full ownership) of said vessels under the authority of the Act of Congress of June 6, 1941, Pub.Law, 101, 77th Congress, c. 174, 55 Stat. 242, 46 U.S.C.A. note preceding section 1101. Thereafter on October 6, 1941 the United States petitioned the court for an order directing the marshal of the court and the Collector of Customs to comply with the notice of said requisition by delivering the possession of the ships to the Maritime Commission without prejudice, however, to the government's claim for forfeiture, "this court retaining its custody and jurisdiction in all respects of said vessel in each of such proceedings". This petition was opposed by the respective claimants of the vessels and after hearing the court granted an order substantially in accordance with the prayers of the petition but with further clarification, D.C., 41 F.Supp. 656, where the applicable provisions of the Act of June 6, 1941 were reviewed. The important point therein to be here noted is the provision of the Act with respect to the determination of just compensation for the use of the ships or damage for injuries thereto during use by the government. The amount of such just compensation has not yet been determined. On April 7, 1942, after hearing, exceptions of the claimants to the amended libels for forfeiture were overruled. D.C., 44 F. Supp. 348. In the meantime, in December, 1941, war was declared between Italy and this country.

Prior proceedings in both cases have been identical with, however, the important exception that in the case of the Pietro Campanella there was an intervening petition filed by Dichman, Wright & Pugh, Inc., based on a suit filed in this court against the ship on May 14, 1941 by writ of foreign attachment to secure the payment of an alleged debt due from the owners of the ship. On July 30, 1942 the petitions of the Alien Property Custodian above referred to were filed in both cases; and on August 19, 1942 the motion of counsel for claimants for a stay of proceedings was filed. On October 1st last, counsel for the claimants filed petitions for the allowance of fees to be paid from the property involved in these cases to which their clients may be respectively entitled.

The petitions of the Alien Property Custodian after reciting the prior procedure in the case, allege that upon the declaration of a state of war between the United States and the government of Italy, claimants became and have continued to be enemies as defined in section 2 of the Trading with the Enemy Act of October 6, 1917 as amended, 50 U.S.C.A.Appendix, ž 2, "not holding a license from the President; and all the right, title and interest, if any, of the claimant in said vessel became and ever since have continued to be the property of a National of a foreign country designated on Executive Order No. 8389 as amended 12 U.S.C.A. ž 95 note"; that on July 22, 1942 the Alien Property Custodian, in consequence of his vesting order No. 52 (7 Fed.Reg. 5738) declared vested in himself all right, title and interest, if any, of the claimants in said vessels in the interest of and for the benefit of the United States; and that by virtue thereof "there has been effected a complete substitution of petitioner for the claimant in respect of such right, title or interest, if any, as the claimant may have had in said vessels, and petitioner is entitled to be substituted as a party herein in place and stead of the claimant".

The prayers of the petition are "(1) for an order substituting petitioner in all respects as a party herein in the place and stead of the claimant; (2) that all claims, pleadings, motions or exceptions heretofore filed herein on behalf of the claimant be dismissed, denied and overruled as to the claimant, but without prejudice as to petitioner; that the claimant be adjudged without any right, title or interest in said vessel and that such right, title and interest, if any, as the claimant may have had therein prior to said vesting order be adjudged vested in petitioner; and that all claims, pleadings, motions or exceptions heretofore filed herein on behalf of the claimant be ordered to stand of record for the benefit of petitioner, pending an opportunity to petitioner to amend, supplement or withdraw the same as petitioner may be advised; (3) that leave so to amend, supplement or withdraw the same be granted to petitioner, as well as leave to file such other claims, pleadings, motions or exceptions as petitioner may be advised."

A copy of the vesting order was filed as an exhibit with the petitions. It recites that the order is made under the authority of the Trading with the Enemy Act of October 6, 1917, particularly sections 5(b) and 7(c), as amended, 50 U.S.C.A.Appendix žž 5(b), 7(c) and of Executive Order No. 9095 of March 11, 1942 as amended, 50 U.S.C.A.Appendix ž 6 note (7 Fed.Reg. No. 1971); and that the Custodian hereby "demands and seizes, and declares vested in the Alien Property Custodian, forthwith and upon the terms herein provided, all right, title and interest, if any, of claimants, and each of them, in any or all of the aforesaid vessels (as hereinafter defined), to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States". The order further states that the term "vessels" as used in the order "includes any claim against the United States for compensation for anything heretofore or hereafter done under the Act of June 6, 1941 (Pub.Law, 101, 77th Congress) in respect of said vessels. The order further provides that:

"The divesting and seizure hereunder of all right, title and interest of Claimants, and each of them, and the vesting thereof in the Alien Property Custodian is unconditional and without redress or right of compensation to said Claimants, or any of them, except as may be otherwise provided by future legislation. Nothing in this order shall be construed as impairing the right of compensation in accordance with the applicable provisions of the Act of June 6, 1941, and of section 902 of the Merchant Marine Act of 1936 as amended, 46 U.S.C.A. ž 1242 of any person interested except Claimants, and each of them; and except other enemies; but nothing in this order shall be construed as impairing such rights as the United States may already have in respect of said vessels, including specifically but not exclusively rights of forfeiture and salvage rights, whether or not already established by adjudication. Nothing in this order shall be construed as recognizing any right of compensation for any interests found subject to defeasance or without value by reason of the paramount rights of the United States.

"Nothing in this order shall be construed as impairing any authority which the United States Maritime...