5 F. Cas. 231 | E.D.N.Y | 1866
According to my present impression, the view taken by the district attorney in regard to the vessel can hardly be maintained. But however that may be, I am clearly of the opinion that such a question as is raised by the facts above narrated should not be finally disposed of before appearance and upon a motion. It does not yet appear that the owners of the vessel, who are the parties responsible for that portion of the advances chargeable to the ship, will not come forward on the return of the process and claim their property, while the interest of the government in the controversy, so far as regards the vessel herself, is certainly very slight, for it appears that the hire of the vessel had been suspended by the quartermaster before the seizure of the vessel, because of a refusal of the master to deliver the cargo.
As to the cargo, the facts are somewhat different, for that is conceded to be the property of the United States. It is property, however, in no way connected with any active operations of either army or navy. It was committed to the custody of the master of this vessel, to be transported by him to this port. While in the prosecution of the voyage, the master, by reason of disaster at sea, has been compelled, in a foreign port, to pledge the cargo to these libellants, by way of bottomry; and upon the termination of the voyage, before any delivery of the property to any oflicer of the government, and while it still remained in the custody of the master, it was seized by the marshal, by virtue of process issued out of the court of admiralty, in an action brought to enforce payment of the bottomry loan; now. inasmuch as it appears that previous to the seizure by the marshal, the government had failed to obtain possession of the property from the master of the vessel, the order applied for here would not necessarily have the effect to put the government in possession. If such would be the effect of an order releasing the property from the custody of the marshal, because of the great hardship of thus, by an interlocutory order, made on motion, without the interposition of claim or answer, depriving the libellants of any opportunity to derive any advantage from their bottomry bond, and possibly of any opportunity to secure the opinion of an appellate court, I should feel very unwilling to grant the application, unless I felt satisfied that the law of the case was free from all doubt. What the law of the case is. should, I think, be determined in this case, as has been done in other cases where property of the United States has been seized by the marshal, in private suits. (The Thomas A. Scott [Case No. 13,920], Shipman, J..) upon a hearing upon issues properly and formally framed. The application must, therefore, be denied, both as to vessel and cargo.
