United States v. Worthington, Inc., 9574.

• Decision Date: 21 April 1941
• Docket Number: No. 9574.,9574.
• Citation: 117 F.2d 936
• Parties: UNITED STATES v. WORTHINGTON, Inc., et al.
• Court: U.S. Court of Appeals — Ninth Circuit

117 F.2d 936 (1941)

UNITED STATES v. WORTHINGTON, Inc., et al.

No. 9574.

Circuit Court of Appeals, Ninth Circuit.

February 17, 1941.

Rehearing Denied April 21, 1941.

Wm. Fleet Palmer, U.S. Atty., and James L. Crawford, John M. Gault, and John Marvin Dean, Asst. U.S. Attys., all of Los Angeles, Cal., for appellant.

L. K. Vermille, Preston B. Plumb, Jr., and Overton, Lyman & Plumb, all of Los Angeles, Cal., for appellee Franco-Italian Packing Co.

H. F. Prince, E. H. Conley, David P. Evans, George H. Whitney, and Gibson, Dunn & Crutcher, all of Los Angeles, Cal., for appellee Worthington, Inc.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

The United States brought a libel against the vessel Fisherman II, seeking to have the vessel forfeited to the United States for violation of Title 46 U.S.C.A. § 60, § 4189, R.S. From a decree of the District Court dismissing the libel, the United States appeals.

The Fisherman II was built in 1921 in Keil, Germany. In July, 1939, a certificate of registry from the United States was obtained for the vessel, which certificate of registry contains the following language: "Admitted to American Registry under R. S. § 4132, as amended by Section 5, of the Panama Canal Act and by the Act of August 18, 1914 46 U.S.C.A. § 11, entitling the vessel to engage only in trade with foreign countries or with the Philippine Islands, American Samoa and the Island of Guam. This vessel shall not engage in the coastwise trade."

The libel alleges, in brief, that subsequent to June 12, 1936, the vessel "engaged in trade and/or fishing and used the Certificate of Registry heretofore referred to for a purpose for which she was not entitled to the benefit thereof and that by reason thereof a fraudulent use was made of the Certificate of Registry issued and heretofore referred to; that in particular said vessel was used in actually engaging in fishing shortly prior to November 3, 1936, and was put to the same use shortly prior to February 4, 1937. * * *"

There is a further allegation that the acts alleged constitute a violation of the navigation laws of the United States, including Section 60, Title 46 U.S.C.A., and that by reason of the violation of the statutes, the vessel has been forfeited to the United States.

Section 60 provides as follows: "Whenever any certificate of registry, enrollment, or license, or other record or document granted in lieu thereof, to any vessel, is knowingly and fraudulently obtained or used for any vessel, such vessel, with her tackle, apparel, and furniture, shall be liable to forfeiture."

The Government asks forfeiture for the "fraudulent use" of the vessel's certificate...