United States v. TITO CAMPANELLA SOCIETA DI NAV., 6822.

• Decision Date: 23 December 1954
• Docket Number: No. 6822.,6822.
• Citation: 217 F.2d 751
• Parties: UNITED STATES of America, Appellant and Cross-Appellee, v. TITO CAMPANELLA SOCIETA DI NAVIGAZIONE, owners of the steam screw vessel now named THE TITO CAMPANELLA, but formerly the Samsylarna, Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

217 F.2d 751 (1954)

UNITED STATES of America, Appellant and Cross-Appellee, v. TITO CAMPANELLA SOCIETA DI NAVIGAZIONE, owners of the steam screw vessel now named THE TITO CAMPANELLA, but formerly the Samsylarna, Appellee and Cross-Appellant.

No. 6822.

United States Court of Appeals, Fourth Circuit.

Argued October 9, 1954.

Decided December 23, 1954.

COPYRIGHT MATERIAL OMITTED

Melvin Richter, Atty., Department of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., and L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., on the brief), for appellant and cross-appellee.

Barron F. Black, Norfolk, Va. (Vandeventer, Black & Meredith, Norfolk, Va., Fink, McNamee & Pavia, Samuel Miles Fink, New York City, and Sam Blecher, Brooklyn, N. Y., on the brief), for appellee and cross-appellant.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal and a cross appeal in admiralty in a proceeding brought by the United States for the forfeiture of the vessel Tito Campanella, formerly the Samsylarna, for alleged violation of sections 9 and 41 of the Shipping Act of 1916, 46 U.S.C.A. §§ 808 and 839. The District Judge sustained exceptions to the libel and dismissed the proceeding but signed a certificate of reasonable cause for the seizure and both the United States and the owner have appealed.

The facts are that the Samsylarna, a Liberty cargo ship of 7,210 gross tons, was built at Baltimore for the United States Maritime Commission in 1944, lend-leased to the British Ministry for War Transport, and torpedoed August 5, 1944. It was never documented under the laws of the United States. On January 5, 1949, the Maritime Commission sold all the right, title and interest of the United States in and to the vessel "as is, where is" to Gabriel E. Gabrielidis, a citizen of Greece and resident of Cairo, for $88,000. It was a condition of the sale that the buyer would scrap or dismantle the vessel and not operate it, and provision was made for payment of liquidated damages for violation of this condition. Gabrielidis sold parts of the wreck to various parties, and the remainder to an Egyptian subject, who in turn sold it in 1949 to Tito Campanella Societa di Navigazione, an Italian corporation, the present owner, which rebuilt the ship, renamed her the Tito Campanella, and placed her under Italian registry.

On May 30, 1953, the Tito Campanella, fully loaded and ready to sail, was seized by the Collector of Customs at Norfolk. The same day a libel for forfeiture was filed against the vessel, reciting the conditions of the sale to Gabrielidis and claiming that forfeiture had been incurred not under those conditions, but under paragraphs 3 and 4 of 46 U.S.C.A. § 808 and 46 U.S.C.A. § 839. The master filed claim on behalf of the owner and excepted to the libel on the ground that the vessel had never been documented under the laws of the United States, but only under the laws of Great Britain. The libel was thereupon amended to recite all four paragraphs of 46 U.S.C.A. § 808 as authority for the forfeiture. The trial judge sustained exceptions to the libel as amended and dismissed it, holding that 46 U.S.C.A. §§ 808 and 839 did not apply here, as the former owner, the United States, is not a citizen of the United States, and the vessel had never been documented under the laws of the United States.

We think that the decree dismissing the libel was clearly correct. Section 9 of the Shipping Act of 1916 as amended, 46 U.S.C.A. § 808, which is the crucial statute, is as follows:

"Any vessel purchased, chartered, or leased from the United States Maritime Commission, by persons who are citizens of the United States, may be registered or enrolled and licensed, or both registered and enrolled and licensed, as a vessel of the United States and entitled to the benefits and privileges appertaining thereto: Provided, That foreign-built vessels admitted to American registry or enrollment and license under this chapter, and vessels owned by any corporation in which the United States is a stockholder, and vessels sold, leased, or chartered by the commission to any person a citizen of the United States, as provided in this chapter, may engage in the coastwise trade of the United States while owned, leased, or chartered by such a person.

"Every vessel purchased, chartered, or leased from the commission shall, unless otherwise authorized by the commission, be operated only under such registry or enrollment and license. Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein.

"Except as provided in section 1181 of this title, it shall be unlawful, without the approval of the United States Maritime Commission, to sell, mortgage, lease, charter, deliver, or in any manner transfer, or agree to sell, mortgage, lease, charter, deliver, or in any manner transfer, to any person not a citizen of the United States, or transfer or place under foreign registry or flag, any vessel or any interest therein owned in whole or in part by a citizen of the United States and documented under the laws of the United States, or the last documentation of which was under the laws of the United States.

"Any such vessel, or any interest therein, chartered, sold, transferred, or mortgaged to a person not a citizen of the United States or placed under a foreign registry or flag, or operated, in violation of any provision of this section shall be forfeited to the United States, and whoever violates any provision of this section shall be guilty of a misdemeanor and subject to a fine of not more than $5,000, or to imprisonment for not more than five years, or both."

It is perfectly clear that the third paragraph of the statute above quoted, which was the section originally relied on, has no application to the facts here, since the transfer by the Maritime Commission for the United States was not made by a citizen but by the government itself, and since the vessel had never been documented under the laws of the United States. We think it equally clear that the second paragraph of the statute has no application, since the vessel was not sold to a citizen of the United States and since only vessels owned by citizens of the United States are entitled to registry, or enrollment and license under the laws of this country.

It will be noted that the first paragraph of the section provides for the registration or enrollment and license of vessels "purchased, chartered or leased from the Maritime Commission by persons who are citizens of the United States" (Italics supplied) and that the second paragraph provides that vessels purchased, chartered or leased from the Commission shall, unless otherwise authorized by the Commission, be operated only under such registry or enrollment and license. There is no suggestion that the provisions of this paragraph were intended to have any application to a vessel sold to a citizen of a foreign country who could not register or enroll it under our laws.¹

The forfeiture provisions of the fourth paragraph were...