The Mariam
THE MARIAM
- Proceeding
- district
- Area
- other
- Panel
- Hollzer (author)
Analysis
The court reviewed a libel for forfeiture of a vessel under 46 U.S.C. §§ 21 and 60 and a claimant's defense based on a ship mortgage. The court sustained exceptions to the claimant's answer, denying the claimant leave to amend, and ordered a decree of forfeiture in favor of the libelant.
| What the court decided | The model |
|---|---|
Exceptions to the claimant's answer are sustained without leave to amend.“The exceptions to the answer of claimant are therefore sustained without leave to amend.” | agree with court The court found the claimant failed to allege facts showing the mortgage was a 'preferred ship's mortgage' as defined by the Ship Mortgage Act. Because the statutory provisions relied upon (46 U.S.C. §§ 953(b), 961(b)) apply only to preferred mortgages, the defense was legally insufficient. Denying leave to amend is appropriate when the defect is fundamental and cannot be cured by amendment. |
Libelant is entitled to a decree of forfeiture.“Libelant will be entitled to a decree of forfeiture as prayed for in the information.” | agree with court With the claimant's defense rejected and no other defense shown, the libelant's claims under 46 U.S.C. §§ 21 and 60 stand. The cited authorities support forfeiture for the violations alleged. |
The order itself: sound — The order correctly identifies the legal deficiency in the claimant's answer: the failure to allege facts establishing that the mortgage met the statutory definition of a 'preferred ship's mortgage.' The court correctly applies the principle that specific statutory protections (subsections M and O) are limited to the class of instruments defined by the statute (subsection D). The reliance on *Maul* and the circuit court cases provides sufficient authority for the forfeiture decree. The reasoning is direct and legally sound.
Opinion — Hollzer
HOLLZER, District Judge.
The libel, in count 1 thereof, charges a violation of 46 USCA § 21, and in counts 2 and 3 charges a violation of 46 USCA § 60.
The claimant, W. C. Allen, asserts in his answer that he is a bona fide mortgagee under a mortgage executed and recorded several years after the vessel in question had been registered to the purported owner thereof, and relies upon subdivision b of subsection M and subdivision b of subsection 0 of the Ship Mortgage Act 1920, 46 USCA §§ 953 (b), 961 (b). The answer fails, however, to allege any facts showing that this incumbrance comes-within the definition of a preferred ship’s mortgage, as defined by the Ship Mortgage Act (subsection D [46 USCA § 922}).
The provisions of subsections M and O of the Ship Mortgage Act are applicable only to a preferred ship’s mortgage, as defined by that act. Assuming, without deciding, that the provisions mentioned give to a bona fide mortgagee under a preferred ship’s mortgage a prior lien as against any claim of forfeiture in a proceeding of this character, nevertheless, the mortgagee herein has failed to show that he is entitled to the benefit of these prpvisions.
No other defense being shown, the libel-ant would be entitled to a decree of forfeiture under the authority of The Pilot (C. C. A.) 43 F.(2d) 491, and The Mineola (C. C. A.) 16 F.(2d) 844; see, also, Maul v. U. S., 274 U. S. 501, 47 S. Ct. 735, 71 L. Ed. 1171.
The exceptions to the answer of claimant are therefore sustained without leave to amend. Libelant will be entitled to a decree of forfeiture as prayed for in the information. An exception is allowed to the claimant.