216
Two
HUNDRED AND FIFTY TONS OF SALT LADEN ON BOARD THE SOHOONER BARBARA
F.
LATHlIER.
(Distrzct Oourt, B. D. New York.
December, 1880.)
L PRACTICE-ATTACHING GoODS IN POSSESSION Oll' COLLECTOR OF Cus. TOMs--AmURALTY JURISDICTION--REV. ST. 2981--SALE ON VEND. SUBJECT TO DUTIES.
Ex.
Where a libel in rem to recover freight was filed against a cargo of salt which the consignee had refused to accept, and the collector of customs had taken it into his custody to secure payment of duties, and while in his possession the monition was served on him by the marshal by exhibiting to him the original process, leaving with him a copy and delivering a notice of attachment to the keeper of the United States public store where part of the salt was and whither the rest was in course of removal from the vessel, and the marshal made return of the monition that he" was unable to take said property into his ·custody otherwise than as aforesaid for the reason of the custody of said collector," and an interlocutory decree on default having been entered, and the amount of the libellant's claim and lien for freight ascertained, the libellant applied for a final decree and order that a writ vena. ex. issue for the sale of the salt, subject to the payment of the duties and expenses due the United States. Hela, ex parte, that the court acquired jurisdiction over the property by the service of the process as made, and could order the goods sold, subject to the claims of the United States for duties and expenses. Taylor v. Carryl, 20 How. 583, and HOI/Til v. Dennie, a Pet. 292, referred to.
In Admiralty. W. R. Bebee, for libellant. D. J. This is a libel in rem for freight against the cargo which the consignee has refused to accept. The marshal, in attempting to serve the process, found the cargo partly on the vessel and partly in the United States public stores, whither it was in course of removal by the collector of the port, who had taken possession of it for the enforcement of the rights of the United States to the duties upon its impor'ation. The process was served by a notice of the attachment delivered to the storekeeper, and by exhibiting to the collector the original process and leaving with him a copy of it. The marshal, in making return of this service, adds that he "was unable to tal{8 said property into his custody othCHOATE,
250 TONS SALT ON BD. SCHOONER BARBARA F. LATIMER.
·211
erwise than as aforesaid, for the reason of the of said collector." An interlocutory decree having been entered by default, and the amount of the libellant's claim and lieu for freight having been ascertained, the libellant now applies for a final decree and an order that a. writ of vend. ex. issue for the sale of the salt, subject to the payment of duties and expenses due to the United States. Upon the suggestion of the marshal, who questions the jurisdiction of the court over the goods under the service of the process made, and which was the only service practicable, I have examined the question involved, though without that aid which the court receives in a contested case. It is suggested that there has been no such seizure of the res as is essential to give the admiralty court jurisdiction. It is also suggested that the possession of the collector is so far absolute as to exclude any possession or control over the goods by the marshal under his process. It is not, however, universally true that the jurisdiction of a court of admiralty depends upon a seizure of property in the sense of its actual manucaption by the officer of the conrt, although the mode of seizure of chattels is usually in that form. Jurisdiction is acquired, however, over things not capable of actual manucaption, as debts and credits, by the process of foreign attachment j . and under a statute authorizing the seizure and confiscation of enemies' property, including corporate stocks, but prescribing no mode of seizure, while it was held that there must be a seizure to give the court jurisdiction over the property, yet it might be such as the nature and situation of the property admitted of, arid that service of the monition on an officer of the corporation, with notice of the seizure, was a sufficient seizure to uphold the jurisdiction. Miller v. U. S. 11 Wall. 298. Williams & Bruce, in their work on the Jurisdiction and Practice of the High Court of Admiralty, 193, say: "The cargo may be proceeded against in respect of any liability attaching to it, etc. If the cargo be on board the ship, and is proceeded against specifically and named in the warrant, or if it is not named in the warrant, but is proceeded against in respect of freight due for ship arrests the the transportation thereof, the arrest of
218
REPORTER.
cargo. If the cargo has been landed and warehoused, a separate arrest of it must be made. If the marshal or his substitutes are denied access to the warehouse where the cargo is. the arrest may be made by showing the original warrant to the warehouse keeper and leaving a copy with him." In Miller v. U. S. ut supra, 296, the court say: "The modes of seizure must vary. Lands cannot be seized as movable chattels may. Actual manucaption cannot be taken of stocks and credits. But it dges not follow from this that they are incapable of being seized within the meaning of the act of congress. Seizure may be either actual or constructive. It does not always involve taking into manual possession. Even in case of chattels movable. taking part of the goods in a. house under a fl. fa .· in the name of the whole, is a good seizure of all. A.nassertion of control, with a present power and intent to exercise it, is sufficient." The right which this libel is brought to enforce is a maritime lien for the due on transportation of the goods. It is a right which, as against the owner or consignee of the goods, entitles the owner of the vessel to retain them till the freight is paid. His surrender of their custody to the collector as secnrity for the duties, which is a paramount claim, but one which the owner of the vessel cannot himself discharge, does not impair his rights or his lien against the owner. He cannot hold the good s against the government while the duties are unpaid; bui, if the duties were paid, it seems that his lien and consequent right of possession till payment of the freight would still be perfect and unimpaired by his enforced delivery of the goods to the collector. It was apparently in recognition of this right of the ship-owner that congress passed the act providing that the ship-owner might notify the collector that the freight was nnpaid, and that in such case the goods should not be delivered to the consignee upon his paying duties unless the freight is paid. Rev. St. 2981. The custody and possession which the collector has for the enforcement of the payment of the duties, though they cannot of course be interferea with, are therefore not so absolute as to exclude all assertion of "control, with a present power and intent to exer-
250 TONS SA-LT ON BD. SCHOONEB BAlUIAB.&. 1'. LATuum.
219
cise it," on the part of the owner of the vessel, who stands ready, subject only to the rights of the government, to retake the' goods for the enforcement of his lien. And the service of the monition, such as the situation of the goods permits, especially at the suit of a party having this right over them, is sufficient, it seems to me, to give the court jurisdiction. By invoking the power of the court to enforce his claim, the libellant at least puts it in the power of the marshal to assert that control over the goods which he himself now possesses. Ordinarily, indeed, a sale of property by an admiralty court IS a sale free from all claims and interests whatever; but not necessarily so, if the court has acquired jurisdiction, and there be some interest which, for cause, is not to be cut off by the sale. I see no difficulty in selling this cargo, subject to the claims of the United States, if the seizure was sufficient to give jurisdiction. The purchaser may then pay the duties and obtain possession of the goods. The case of Taylor v. Carryl, 20 How. 583, is referred to as an authority adverse to the jurisdiction. It is not to be denied that there are expressions, in the opinion of the court in that case which make against the jurisdiction, but no question arises here, as in that case, of a possible conflict between courts of different jurisdictions. Subsequent decisions appear to limit somewhat the application of thatcRse, and I do not think it is controlling against the jurisdiction in the present case. See The Reindeer, 9 Wall. 409; Buckv. Colbath, 8 Wall. 841; The Joslyn and The Midland, 9 Ben. 119. It was, indeed, held in Harris v. Dennie, 3 Pet. 292, that the custody of the collector was such as excluded any attachment of the goods on mesne process out of a state court; that such an attachment, "being repugnant to the laws of the United States," was void. I do not think there is, the same repugnancy between that possession of the collector and the service of the monition by the marshal at the suit of the ship-owner, whose right and qualified control over the goods, subordinate the laws' of conto the right and control of the gress recogllize and protect; nor does the exercise of the jurisdiction by tbis court over the goods, subject to the rights of
220
the government, danger of conflicting rights and claims, and the practical illconveniences pointed out in that case. While I entertain some doubt on the question, I am of opinion that the comt has acquired jmisdiction, and can order the cargo to be sold, subject to.the clai:'lls of the United States, for duties and expenses. See, alsq, n. S. v. OILe Case oj Silk, 4 Ben. 526; Opin. oj '.J'aney, Att'y Gen, 20pin. Att'ys Gen. 477,496. Unless the jurisdiction 'exists, the ship-owner,is practically remediless. He cannot compel a sale of the goods for duties, and, in Il10st cases like the present, if he cannot libel them he mnst stand by and see their whole value absorbed in storage and other charges before they will be sold by the collector.
THE
STEAM-SHIP ZODIAO. Janullry 3, 1881.)
:Jistrict Oourt, 8. D. New York.
1.
COLLISION-FINAL DECREE IN RB.\f-STIPULATION FOR VALUE-DECREE IN PERSONAM AGAINST CLAIMANT NOT SlGNING-ELEVEN'J:H AND FIFTEENTH ADMIRALTY RULES.
Where one of two part owners, who appeared as claimants by differ. ent proctors, a libel in rem for collision having been filed, executed a stipulation for value, with sureties approved by the libellants, for the release of the vessel, and conditioned to pay the amount that might be awarded on final decree on notice thereof to its proctors; and the other claimant did not unite in the stipulation, and a tlnal decree for damages was thereafter rendered, and the libellants, being unable to collect their decree from the claimant (stipulator) or his sureties. moved that execution issue against the other claimant: Held, that the appearance of the other claimant as part owner of the vessel was not an admission of such ownership at the time of the collision, or of personal responsibility for the negligence of those then in charge of her. That to permit an amendment in effect making the suit in rem a suit in personam, would be a clear violation of the fifteenth admiralty rule, forbidding the joinder of a claim in rem with one in personam in the Bame suit for collision. That the libellants, if they have any claim for damages against the owners personally, must resort to another suit in personam to enforce it j and the libellant's motion must be denied. Also held, the contents of the stipulation and its approval show-