In re White Star Towing Co.

91 F. 285, 1898 U.S. Dist. LEXIS 43

• Court: District Court, S.D. Georgia
• Decided: November 15, 1898
• Status: Published

Opinion

SPEER, District Judge.

The steamship Adula was duly condemned at Savannah as lawful .prize of war to the United States, by the United States district court for the Southern district of Georgia. She was transferred by the marshal of the Southern district of Georgia to the harbor of New York, for sale there, under the provisions of section 4629, Rev. St. U. S. While lying in the harbor, in the custody of the marshal of the Southern district of Georgia, awaiting sale, it is averred by the applicants .that the Adula was rescued by them from the peril of a fire which consumed other shipping in the neighborhood. They ask that this court allow them to file their libel for salvage in the district court for the Southern district of New York, and to proceed against the vessel in rem in that port for the satisfaction of their claim.

It will be noted that the statute which authorizes the transfer of prize ships to other districts for sale expressly reserves the jurisdiction of the court of condemnation over the vessel. The marshal of the court of condemnation is directed “to transfer the property, and keep and sell the same in like manner as if the property were in his district; and he shall deposit the gross proceeds of the sale with the assistant treasurer nearest to the place of sale, subject to the order of the court in which the adjudication thereon is pending.” Rev. Sc. § 4629. The jurisdiction of the court of the Southern district of Georgia over the vessel while in New York is therefore not only constructive, but actual. The officers of the court are, under the statute, in actual control of the property, and subject as completely to the orders and decrees of the court in the Southern district of Georgia as if the property was in that district. In this case, although the claimants of the vessel in the prize proceedings have appealed to the supreme court of the United States from the decree of condemnation, no supersedeas bond has been given. The vessel, then, to all intents and purposes, is property of the United States government, in control of one of its courts, and was not at the time being used as a vehicle of commerce. Therefore the court’s possession of it is not like the possession of a vessel by a receiver of the court in one district which is sent out as a vehicle of commerce on the high seas into other jurisdictions. “It is well settled that no suit in rem can be maintained against the property of the United States when it would be necessary to take such property out of the possession of the government by any writ or process of the court.” The Davis, 10 Wall. 15, a salvage case; The Siren, 7 Wall. 152, a collision case.

Now, if the court should grant the application of petitioners, the result of the order sought by the applicants, if they sustained their salvage case, might be quite inconvenient. The.vessel attached on process from the district court for the Southern district of New York, and taken out of the possession of the officers of the court for the Southern district of Georgia, would be condemned and sold under that process, and the surplus beyond the salvage claim of the applicants would be in a different court from that in which the .prize proceedings were pending. When the court for the Southern district of Georgia had determined the rights of the parties, its decree would be a nullity, because it would have nothing to operate upon, and the method provided by the statute would be disarranged for the security of the fund and its distribution. It appears, therefore, that the applicants have mistaken the route which they should travel in order to obtain the remedial relief to which they may be entitled. Their remedy is either by intervention in the proceedings in the district court for the Southern district of Georgia, or by application direct to the government at Washington for reasonable compensation for such services as may have been voluntarily rendered in the emergency to the Adula they describe in their petition.