Bacon v. The Poconoket

61 F. 106, 1894 U.S. Dist. LEXIS 11

• Court: District Court, E.D. Pennsylvania
• Decided: March 6, 1894
• Docket: No. 9
• Status: Published

Opinion

BUTLER, District Judge.

Where damages must result from an unwarranted seizure it is reasonable that the owner should be secured indemnification. Ordinarily where seizure occurs—as to enforce liens—the owner may protect himself against loss by giving security and. retaining the vessel; and there is therefore no occasion for security. If he may do this where the seizure, as here, is in a possessory action, there can be no reason for distinguishing-such a case (in this respect) from a,uy other. The only question for consideration therefore is: Can he do so? It is difficult to discover a reason why he should not be allowed to do so. There is no occasion in either case for retaining the vessel in custody; and to do so must entail serious loss. Why therefore should it be done in possessory actions? The situation in such cases is precisely the same as in all others. If the respondent can keep possession he should do so; and if he does not his injury is self-inflicted.

Justification may, nevertheless, be found for tbe respondent’s contention in the earlier admiralty practice abroad; but that practice does not, in my judgment, prevail to-day, even there. See The Evangelistria, 46 Law J. Adm. 1, 25 Wkly. Rep. 255, and Pritch. Adm. Dig. (3d Ed.) p. 1554.

In this country I do not think such a practice ever existed, though there seems to have been some difference of opinion about it. In this judicial district vessels have been released, in repeated instances, without question. Brace the acts of 1790, 1792, and 1793, as embodied in section 941 of tbe Revised Statutes, there can hardly have been room for doubt on the subject' The section reads as follows:

“'When a wairant of arrest or other process in rem is issued in any cause of admiralty jurisdiction except cases of seizure for forfeiture' under the laws of the United States, the marshal shall stay the execution of such process, or discharge the properly arrested if ihe process has been levied, on receiving from the claimant a bond or stipulation in double the amount claimed by the libelant, with sufficient surety to be approved by the judge of the court where the case is pending * * * to answer the decree of the court in such cause. * *

The language leaves nothing foi* interpretation. All seizures are embraced, without regard to the cause of action, and owners are empowered to retain possession, on giving security, in all such cases. Admiralty rule 11, prescribed by the supreme court, conforms to this view; and the rules of the southern and eastern districts of New York provide for it in (Express terms. See, also, Ren. Adm. (last edition, 1894) § 498. I need not extend this opinion by commenting on the numerous cases to which counsel have invited my attention, but will Ale the briefs herewith for the benefit of future reference.

In view of the probable extent of the litigation which may occur in this case the security for costs should be increased to $500.

An order may be prepared in conformity with this opinion.