US v. One (1) Liberian Refrigerator Vessel

• Decision Date: 14 December 1977
• Docket Number: No. 76-586 Civ. T-K and 77-178 Civ. T-K.,76-586 Civ. T-K and 77-178 Civ. T-K.
• Citation: 447 F. Supp. 1053
• Parties: UNITED STATES of America, Plaintiff, v. ONE (1) LIBERIAN REFRIGERATOR VESSEL, M/V EA, Official No. 3524, approximately 100.41 meters in length, Defendant. BANQUE FRANCAISE DU COMMERCE EXTERIEUR, Intervening Plaintiff, v. M/V EA, its engines, tackle, apparel, appurtenances, etc., in rem, and Ea Shipping Company, Inc., her owners, in personam, Defendants. EA SHIPPING COMPANY, INC., Plaintiff, v. Albert F. BAZEMORE, Regional Commissioner of Customs, Edward Ellis, District Director of Customs, David Greenleaf, Acting District Director of Customs, Commander B. R. Sheaffer, United States Coast Guard Commanding Officer, Tampa, and ALL OTHER U. S. Officials and Employees who Seized and took Possession of the M/V EA on or about June 19, 1976, and thereafter whose names are unknown, Defendants.
• Court: U.S. District Court — Middle District of Florida

447 F. Supp. 1053

UNITED STATES of America, Plaintiff, v. ONE (1) LIBERIAN REFRIGERATOR VESSEL, M/V EA, Official No. 3524, approximately 100.41 meters in length, Defendant.

BANQUE FRANCAISE DU COMMERCE EXTERIEUR, Intervening Plaintiff, v. M/V EA, its engines, tackle, apparel, appurtenances, etc., in rem, and Ea Shipping Company, Inc., her owners, in personam, Defendants.

EA SHIPPING COMPANY, INC., Plaintiff, v. Albert F. BAZEMORE, Regional Commissioner of Customs, Edward Ellis, District Director of Customs, David Greenleaf, Acting District Director of Customs, Commander B. R. Sheaffer, United States Coast Guard Commanding Officer, Tampa, and ALL OTHER U. S. Officials and Employees who Seized and took Possession of the M/V EA on or about June 19, 1976, and thereafter whose names are unknown, Defendants.

Nos. 76-586 Civ. T-K and 77-178 Civ. T-K.

United States District Court, M. D. Florida, Tampa Division.

December 14, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Anthony J. LaSpada, Asst. U. S. Atty., Tampa, Fla., Richard S. Friedland, Asst. Regional Counsel, U.S. Customs, Miami, Fla., for plaintiff.

Richard W. Hulbert and Mark A. Walker, Cleary, Gottlieb, Steen & Hamilton, New York City, and Jack C. Rinard, Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for Banque Francaise.

Dewey R. Villareal, Jr., Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, Fla., Edwin Longcope, Hill, Betts & Nash, New York City, for Ea Shipping Co., Inc.

Martin H. Sachs, Atty., Dept. of Justice, Washington, D.C., for third party defendant.

MEMORANDUM OF DECISION INCLUDING FINDINGS AND CONCLUSIONS

KRENTZMAN, District Judge.

In No. 76-586 Civil, the libelant, United States of America, seeks the forfeiture of the Motor Vessel Ea pursuant to 49 U.S.C. § 781, 21 U.S.C. § 881, and 19 U.S.C. § 1594, libelant contends that the M/V Ea was used to facilitate or aid in the importation of cocaine, a controlled substance, into the United States. Jurisdiction is founded on both 28 U.S.C. § 1345 and § 1355.

In No. 77-178 Civil claimant Ea Shipping Company, Inc. seeks damages for an alleged illegal seizure. Determination of the damage claim was deferred, and in August, 1977, the Court conducted a non-jury trial on the issues presented in the forfeiture case.

In this memorandum of decision the Court makes findings and conclusions as hereinafter set out.

A three-tiered approach is required for a proper analysis of the issues raised. The Court must first determine whether the libelant has proved probable cause for the seizure of the vessel. If the Court finds probable cause, then the burden shifts to the claimant to establish by a preponderance of the evidence its status as a common carrier pursuant to 19 U.S.C. § 1594, 21 U.S.C. § 881, or 49 U.S.C. § 782. A determination by the Court that claimant was a common carrier returns the burden to the libelant to prove that either the owner or master of the M/V Ea was privy to the illegal activity or a consenting party thereto. A negative finding on the probable cause issue would then permit claimant to proceed with its damage action presented in the companion case. A positive finding of probable cause and a negative finding regarding the Ea's common carrier status would terminate the litigation in the libelant's favor. Although these are not the sum total of issue permutations presented, this brief introduction should provide an overview of the legal controversies presented.

BACKGROUND

The M/V Ea is a one hundred meter refrigerator vessel of Liberian registry. For approximately two years prior to her seizure on June 19, 1976 the Ea had participated in the banana trade between Tampa, Florida and Turbo, Colombia. This trade consists primarily of the carriage of bananas, yams, and plantains from Turbo north to Tampa, and the transportation of banana packaging materials, essentially container board, south from Tampa to Turbo. Although the Ea has deviated roundtrip from Tampa to Turbo, and traveled to Ecuador on occasions, it did so only because of the dearth of produce in Turbo.

Turbo is a small village near the Gulf of Uraba in the northwest corner of Colombia. The majority of the village's 2,000 inhabitants are occupied in some way in the produce business, either directly in the agricultural process, in the construction of boxes or in a stevedoring capacity. Additionally, although a good deal of the surrounding terrain is dense jungle, there are substantial banana plantations extending about twenty miles inland. Since Turbo is situated on Bahia Turbo, a large but relatively shallow bay, and not the Gulf of Uraba itself, it is impossible to land-load vessels of the Ea's class. Therefore, banana trading vessels must anchor southwest of Turbo in the Gulf of Uraba in 4 to 6 fathoms of water. Barges laden with produce and mechanical loading equipment, primarily conveyors, are brought alongside the vessels which are then loaded through their sideports. Once started, loading continues day and night. Although mechanical conveyors are used, a good many stevedores are employed, and work under only cursory supervision.

Tampa, Florida is a port city with a population, including the surrounding communities, of close to one-half million people. Tampa is precisely due north of Turbo, although direct sailing is prohibited by the western tip of Cuba. Generally, the voyage between the two cities took from three to four days. For at least two years prior to its seizure, the Ea had been time-chartered by Parker Banana Company, a Tampa based importing company. In Tampa, Parker had retained Marine Agency of Tampa as its agent to handle the loading and unloading of the Ea and resolve any problems which might develop.

1. PROBABLE CAUSE FOR SEIZURE

A. Findings

The M/V Ea had a history of unlawful importation of controlled substances into the United States prior to its seizure on June 19, 1976. On two previous occasions, May 14, 1974 and August 5, 1975, the United States Customs Service had imposed penalties upon the Ea for drug related activities. Additionally, the Acting Director of Customs on August 13, 1975 had written to Marine Agency of Tampa regarding special enforcement procedures to be applied to the Ea from that date until December 31, 1975 because of the previous violations.¹

Upon the Ea's arrival in Tampa on June 15, 1976, the Customs Service dispatched one of its officers to conduct surveillance of the vessel. This special surveillance was precipitated by the Ea's past record. Custom Patrol Officer (CPO) Bruce Meader (hereinafter referred to as Meader) had the responsibility of conducting the surveillance of the Ea on both the nights of June 15 and June 16, 1976. Around midnight on the night of June 16, 1976 and during the early morning of June 17, 1976, Meader parked his customs patrol automobile near the bow of the Ea approximately twenty yards from the vessel's gangway. Because of the previous surveillance, Meader had become acquainted with some of the faces and names of the Ea's crewmembers. Meader did not continuously maintain his position at the bow of the Ea but would on occasion drive to other areas in the adjacent Tampa port area. Each time upon his return to the vessel he noticed that a crewmember, who was serving as a deckwatch, would immediately leave the vessel and begin to ride a bicycle around the adjacent pier. Officer Meader believed that the crewmember's actions might be a signal and he decided to drive his automobile away from the pier and continue his surveillance in a more surreptitious manner.

Upon assuming his covert position sometime between 2:30 and 2:45 a. m., Meader, at times using his binoculars, noticed several men, whom he identified as Ea crewmembers, leave the vessel and assemble beneath or around the gangway. Further surveillance revealed the crewmembers were unloading dark colored trash bags through the second porthole.² Upon viewing this activity, Meader returned in his automobile to the Ea, proceeding at a high rate of speed. The men around the gangway, noticing the return of the customs patrol automobile, immediately dispersed, running in the direction of a nearby field. Meader commenced an immediate though cursory search of the surrounding area, but he was unable to locate any of the men. He then departed the central dock area and proceeded to search the roads adjacent to the field. Not finding any of the crewmembers, Meader returned to the field into which the men had run and commenced a thorough search on foot. With the assistance of several Tampa Police Officers and a police helicopter equipped with a search light, four packages, each wrapped in dark plastic trash bags and wrapped with heavy plastic twine, were discovered. Inside each of the packages were several individually wrapped containers the size of small footballs. Meader opened one of these containers, field tested the substance found within and determined that it was cocaine. The search of the field continued for about an hour and all four of the packages which had been found were placed in the trunk of Meader's automobile. When the packages eventually were taken to the Tampa Customs House later in the morning, the collective weight was determined to be 95 pounds.

Soon after the discovery of the first package containing cocaine, Meader had contacted the Customs Patrol headquarters to report the incident. About 4 a. m. a number of supervisory and regular Customs Patrol officers arrived at the M/V Ea and began a search of the vessel. Meader did not participate in the internal search of the vessel at that time, but remained on the pier and was able to identify the second porthole as the opening through which the plastic trash bags had been passed. An examination of the second porthole revealed that it was unlocked whereas the next porthole was locked and the other portholes in the general area of the gangway, because of the curvature of the vessel, were too distant...