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session of the ship for any voyage, on giving security for the safe return thereof, the process shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit."' 10

§ 565. Process in rem. If process in rem is prayed for, the clerk issues a monition, returnable on a day named, which recites the filing of the libel and its prayer for relief, and directs the marshal to arrest the property proceeded against, describing it, and cites all persons interested therein to appear on the return day and answer the libel.2 "In all cases of seizure, and in other suits and proceedings in rem, the process, if issued and unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be arrested; and the marshal shall thereupon arrest and take the ship, goods, or other thing into his possession for safe custody, and shall cause public notice thereof and of the time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the district court shall order; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct.3 By the notice all persons claiming any interest in the property attached are notified that they must present their claims on the return day, or their default will be taken and the property condemned. In all suits in rem against a ship, or her appurtenances if her appurtenances or any of them are in the possession or custody of any third person, the court shall, on due notice to such third person and after hearing, decree that the same be delivered into the custody of the marshal or other proper

10 Adm. Rule 19.

§ 565. 1 In the Southern District of New York, Tuesday is the return day; in the Eastern District it is Wednesday; in New Jersey, Monday.

2 By Adm. Rule 7, S. D. N. Y., "In all possessory suits, the process shall be made returnable at the first general return day not less than three days after the filing of the libel, unless otherwise ordered

by a judge.

The answer shall be filed upon return of the process duly served, and a day of hearing then fixed unless otherwise ordered."

3 Adm. Rule 10. By Adm. Rule 7, S. D. N. Y., "Notice by publication will not be required unless specially ordered. '

4 The form and time of publication in S. D. N. Y. is regulated by Adm. Rule 26.

officer, if on hearing it appears that the same is required by law and justice.'' 5

§ 566. Cases in which the res cannot be arrested. The public vessels or other property of the United States 1 or of a foreign sovereignty are exempt from seizure in admiralty; 2 also vessels which are the property of a State or municipal corporation, or a department thereof, and are devoted to public uses.3 Where property is in the possession of the Government of the United States, as, for example, in bonded warehouse or elsewhere in the custody, actual or constructive, of the collector of customs, it is irrepleviable, and subject only to the orders and decrees of the Federal courts. The marshal is permitted to make the attachment without taking the property into his custody by leaving with the collector or person in charge of the property a copy of the monition, and also a notice requiring such person to detain the property in custody until the further order of the court. He cannot take actual possession of the property without the express order of the court.6

The immunity of Government vessels from seizure while in the possession of the United States does not exempt them from subjection to a lien arising from acts then committed, which may be enforced against them when the Government has parted with their possession, or against their proceeds after they have been sold.8

By the Act of September 7, 1916, boats purchased, chartered or leased by the United States Shipping Board "while employed solely as merchant vessels shall be subject to all law regulations, and liabilities governing merchant vessels, whether the United

5 Adm. Rule 9.

§ 566. 1 The Fidelity (Waite, C. J.), 16 Blatchf. 569; infra, § 566a. 2 The Schooner Exchange, 7 Cranch 116, 3 L. ed. 287. At least if in the full and complete possession of such foreign government. Long v. The Tampico & Progresso, 16 Fed. 491; supra, §§ 94, 102a.

3 The Protector, 20. Fed. 207; The F. C. Latrobe, 28 Fed. 377; Workman v. New York, 179 U. S. 552, 565, 45 L. ed. 314, 322.

4 U. S. R. S., § 934. The Conqueror, 49 Fed. 99; Re Fassett, 142 U. S. 479, 35 L. ed. 1086.

5 U. S. v. One Case of Silk, 4 Ben. 526. Contra Vol. XIX, p. 101.

6 The Conqueror, 49 Fed. 99. 7 The Florence H., 248 Fed. 1012; The City of Philadelphia, 263 Fed. 234, 237; The Ceylon Marau, 266 Fed. 396; The F. J. Luckenback, 267 Fed. 931.

8 The Siren, 7 Wall. 153, 19 L. ed. 129.

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States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein."9

This has been repealed by the Act of March 9, 1920, which is quoted in the following section.10 It authorized the seizure under a libel in rem of ships requisitioned by the United States Shipping Board Emergency Fleet Corporation because of a collision which occurred when they were chartered to a private company for private purposes.11 The jurisdiction acquired through an attachment under a libel in rem and the power of the court to subject the boat attached to a second attachment under a second libel was not ousted by a requisition of the use of the boat made by the United States Shipping Board, and the use of the vessel for government purposes while remaining in the custody of the marshal through the master who was appointed deputy.12 It did not forbid a libel in personam 13 or an action at common law 14 against the United States Shipping Board Emergency Fleet Corporation which is a corporation of the District of Columbia.

By the Act of March 21, 1918, providing for the Federal control of railroads and other carriers "actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government. But no process, mesne or final, shall be levied against any property under such federal control." 15

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This did not prevent a libel in personam against the Director General of railroads while Federal control existed.16 Neither did it prevent the attachment to a lien upon such a vessel which

9 Ch. 451, § 9, 39 St. at L. 728; re-enacted by act of July 15, 1918, ch. 152, 40 St. at L. 900.

10 Infra, § 566a, note.

11 The Lake Monroe, 250 U. S. 246.

12 41 St. at L. 525, Comp. St., § 12514; Banque-Russo AsiatiqueLondon v. U. S. Shipping Board Emergency Fleet Corporation, 266 Fed. 897.

13 Banque-Russo

Asiatique-Lon

don v. U. S. Shipping Board Emergency Fleet Corporation, 266 Fed. 897. See supra § 95.

14 Perna v. U. S. Shipping Board Emergency Fleet Corporation, 266 Fed. 896.

15 40 St. at L. 451, ch. 25, § 10, Comp. St., §§ 31154a-31154p. See supra, § 96i.

16 Dampskibs Actieselskabet Sangstad v. Hustis, 257 Fed. 862.

might be enforced after the Federal control had ceased.17 It forbade the maintenance of a libel in rem against a vessel while under such control of the Director General,18

By the Transportation Act of February 28, 1920, "No execution or process other than on a judgment recovered by the United States against a carrier, shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under federal control." 19 It has been held that this applies only to claims which have as a proximate cause possession and use by the Government for which the Government should properly be responsible and does not bar a libel in rem against a boat, brought after Government control has ceased, for salvage where the services were rendered during Federal control while the vessel was chartered to a private individual or corporation.20

The immunity extends to an unarmed vessel employed by a foreign subject or country in public service as well as to a manof-war.21 The courts are bound to respect and accept as correct a suggestion by the Government of the United States filed by the United States Attorney or the Attorney-General which states that a boat is owned or has been requisitioned by a foreign government.22 They may follow a statement by the foreign minister or government to the same effect.23 It has been held that the immunity does not extend to a boat requisitioned by a foreign government and employed in its service which remains. under the control and management of the owner who employs and pays the officers and crew,24 although the Government of the United States has duly filed a suggestion that the boat has

17 The City of Philadelphia, 263 Fed. 234, 237. See The Ceylon Maru, 266 Fed. 396; The F. J. Luckenbach, 267 Fed. 931.

18 The City of Philadelphia, 263 19 Ch. 91, § 206 (q.) 41 St. at L. 456, 462.

20 The Arizona, 267 Fed. 598. 21 The Adriatic, C. C. A., 258 Fed. 902. But see The Florence H., 248 Fed. 1013.

22 The Schooner Exchange, 7 Cranch 116, 3 L. ed. 287. But see The Attualita, C. C. A., 238 Fed. 909.

23 The Adriatic, C. C. A., 258 Fed. 902.

24 The Attualita, C. C. A., 238 Fed. 909.

been requisitioned without stating under whose control it is nor demanding its release.25

Property actually in the custody of a sheriff cannot be attached by the marshal.26 But the possession of a sheriff will not defeat the operation of the laws of the United States imposing forfeiture for the wrongful act of the owner or person in charge of a vessel.27 Canal boats cannot be libeled for wages. But whatever the form of a vessel may be, if she is not engaged in navigating canals she is not a canal boat within the meaning of the statute.29

28

§ 566a. Libels in personam against the United States. By the Act of March 9, 1920: "Sec. 1. No vessel owned by the United States or by any corporation in which the United States or its representatives shall own the entire outstanding capital stock or in the possession of the United States or of such corporation or operated by or for the United States or such corporation, and no cargo owned or possessed by the United States or by such corporation, shall hereafter, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions: Provided, That this Act shall not apply to the Panama Railroad Company.

"Sec. 2. In cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States or against such corporation, as the case may be, provided that such vessel is employed as a merchant vessel or is a tug boat operated by such corporation. Such suits shall be brought in the district. court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. The libelant shall forthwith serve a copy of his libel on the United States attorney for such

25 Ibid.

26 Taylor v. Carryl, 20 How. 583, 15 L. ed. 1028; supra, § 56.

27 U. S. v. The Reindeer, 2 Cliff.

28 U. S. R. S., § 4251.

29 Smith v. Canal Boat Wm. L. Norman, 49 Fed. 285.

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