CASES IN PRIZE IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. THE SCHOONER CRENSHAW AND CARGO. In this case the cargo of the prize vessel, consisting of tobacco, was suffering damage from exposure to the weather and from confinement in the hold of the vessel, and the price of the article had increased since the capture. The cargo having been condemned in the district court, the claimants, after appealing to this court, applied to this court for the delivery of the cargo to them on the usual stipulation. The court denied this application, but appointed commissioners to appraise the cargo, and ordered it to be sold and the proceeds to be brought into court. (Before NELSON, J., November 18, 1861.) NELSON, J.: This is a motion, on behalf of J. & J. K. Caskie, claimants of one hundred and eighty hogsheads and forty-seven half hogsheads of tobacco, on board of the schooner Crenshaw, lying at the wharf of the Union stores, in the city of Brooklyn, for an order for the delivery of the tobacco to the claimants, upon their stipulation to account for the proceeds in case of a decree against them on the final hearing, or for such other order or relief in the premises as the court may see fit to grant. The vessel and cargo were seized and libelled in the district court for an alleged attempt to violate the blockade of one of the ports of the State of Virginia. A decree was rendered in that court, condemning the vessel and part of the cargo, as lawful prize, including the tobacco in question; and the case is now pending in this court, on an appeal from that decree. The ground upon which this motion is placed is, that the tobacco is suffering damage and deterioration in value from exposure to the weather, and also from confinement in the hold of the vessel; and that the claimants have been obliged to keep a person constantly employed, at their own expense, in guarding and taking care of it, so as to prevent, as far as possible, further injury and damage. The gov The Hiawatha. ernment, the captors, object to the delivery of the property to the claimants on stipulation, but do not deny that the facts set forth furnish proper ground for an interlocutory order of sale, the proceeds to be brought into the registry of the court, to abide the event of the suit. It further appears, upon the papers upon which the motion is founded, that the price of the article has greatly increased since the capture, and that it would be for the interest of all parties concerned that some disposition should be made of it by which a sale can take place in the present market. As the property has been condemned, as lawful prize, in the court below, the appellate court would not, except in extreme and very special cases, deliver it to the claimants upon the usual stipulation. It might be otherwise, if the decree had been in their favor. But, being against them, an enhanced interest exists, in behalf of the captors, that the property, the subject of the litigation, should be preserved with all reasonable security, to abide the result. I therefore direct an order of sale to be entered, and appoint Morris Franklin and Frederick W. Welchman, esquires, commissioners, to enter the vessel (now in the custody of the court, through its marshal) and examine and appraise the value of the 108 hogsheads and 47 half-hogsheads of tobacco, and order that, after such appraisal, a public sale of the same be made by the marshal, under the direction of the commissioners, and at such time and place as they shall direct, giving at least three days' notice of the sale, to be given in such papers as they shall designate, and that the proceeds of the sale be brought into this court, to be placed or invested by the clerk according to the directions of the court. THE BARK HIAWATHA AND CARGO. In this case, after an affirmance by this court of the decree of the district court condemning the vessel and cargo, and the taking of an appeal to the supreme court by the claimants, this court, on the application of the prize commissioners, and on proof that the cargo, consisting of tobacco, was in a perishing condition, ordered it to be sold. The provisions of the act of March 25, 1862, (12 U. S. Stat. at Large, 374,) in regard to the sale of prize property, pendente lite, commented on. That act applies to proceedings in this court as well as in the district court. (Before NELSON, J., May 5, 1862.) NELSON, J.: The vessel and cargo were condemned in the district court as prize, upon proceedings instituted by the United States. An appeal was taken to this court from that decree, which was The Hiawatha. affirmed. Since then an appeal has been taken to the Supreme Court from the latter decree, and is now pending. The cargo consists chiefly of tobacco, manufactured and unmanufactured, which was laden on board the vessel at City Point, Virginia, in May, 1861. The capture occurred in the same month in Hampton Roads, and the vessel and cargo were brought into this port. The vessel, with most of the cargo, is lying at the Atlantic dock, in Brooklyn. According to the report of the prize commissioners, under date of April 14, 1862, supported by proof, the cargo is in a perishing condition. They, therefore, asked for an order of sale for the benefit of all concerned. A sale was ordered accordingly, and some steps were taken under the order, with a view to an appraisal of the cargo, preliminary to the sale. The proceedings were afterwards stayed, for the purpose of enabling the proctor and advocate for the claimants to make some suggestions to the court in respect to the order of sale; and those suggestions have been submitted for its consideration. It is not denied that the cargo is in a perishing condition, or that the interference of the court is required, with a view to its preservation pending the litigation. The value of the property involved is large, and the claimants are numerous, as the documentary proofs are said to show some thirty-three different bills of lading. No application has been made by any of the claimants for any interference with the cargo by the court, with a view to its preservation. The application is exclusively on the part of the government, and by the prize commissioners, acting for the benefit of all persons or parties concerned. I am satisfied, upon the proofs before me, that some immediate steps should be taken to preserve the subject-matter in dispute from loss, and that it will be for the interest of all parties that the cargo be sold. The recent act of Congress, passed March 25, 1862, (12 U. S. Stat. at Large, 374,) provides (§ 1) that it shall be the duty of the prize commissioners "from time to time, pending the adjudication, to examine into the condition of said property, and report to the court if the same or any part thereof be perishing or perishable, or deteriorating in value; and if the same be so found by the court, upon said report or other evidence, the court may, thereupon, order an interlocutory sale thereof by the United States marshal, and the deposit of the gross proceeds of such sale in the registry of the court to abide the further order of the court, whether a claim to said property has The Hiawatha. or has not been interposed." I am inclined to think that this provision applies as well to proceedings in this court as in the court below. I do not suppose that it was, intended to interfere with any of the usual modes employed in this court or in the court below for the disposition or preservation of the fund or subject matter of litigation pending the suit; but I think that the object was to provide for the case of a sale, which is one of the modes, when that one had been adopted by the court. This power of the prize commissioners is, I believe, new, and it may be proper to submit some observations upon it. The power is, I think, joint, and requires the concurrence of both in the exercise of it. As matter of practice it would be proper for them to give to the district attorney, as representing the government, and also to the proctor for the claimants, notice of the application to the court for the sale, so as to afford an opportunity to these parties to support or oppose the order of sale. Either of them may still make an application to the court in respect to the condition of the res, notwithstanding this power of the commissioners. This power was obviously conferred upon the commissioners as an additional security for the preservation of the property, and for abundant caution. The sale is, when ordered, to be made by the marshal; but, as matter of practice, should be made under the superintendence and direction of the commissioners. They represent all parties in interest, and it is their duty to see that the property is not sacrificed at the sale. The relation they hold to the property is not unlike that of a private party in sales of this description. The marshal is to receive the purchasemoneys, make a proper return of the sales, and pay the moneys into the registry of the court. The act provides that the order of sale shall contain an order to pay the gross proceeds into the registry; and the second section enacts "that all reasonable and proper claims and charges for pilotage, towage, wharfage, storage, insurance, and other expenses incident to the bringing in and safe custody and sale of the property captured as prize shall be a charge upon the same, and, having been audited and allowed by the court, shall, in the event of a decree of condemnation or of restitution on payment of costs, be paid out of the proceeds of any sales of the property, final or interlocutory, in the custody of the court." The gross proceeds of the sale must be paid into the registry of the court, and, on the allowance of the charges, &c., by the court, they may be paid. It may be The Aigburth.-The Sarah Starr. proper to say in advance, that where these charges are fixed by law they will be strictly regulated accordingly; and, where they are not fixed by law, the allowance will in no case exceed the usual accustomed charge in similar cases arising out of navigation and trade. I suppose that the charges for pilotage, towage, wharfage, storage, and all other incidental necessary expenses, are either fixed by law or by custom and usage, or have some definite limit or regulation by the course of trade and business. The marshal having the possession and custody of the vessel and cargo, subject to the direction and control of the court, he will be held responsible for its due care; for placing and securing the vessel at a proper dock; and, when the cargo is ordered to be discharged, for selecting a fit and suitable warehouse for its stowage and custody. Where an appraisal of the goods is ordered to be made by the commissioners before a sale, he will discharge the cargo under their superintendence, so as to enable them to take a list of it, with a view to the appraisal, and he will also be enabled to take a list for his own benefit, with a view to the sale. I think that, in discharging the cargo, the parcels of each bill of lading should be separated, and be appraised and sold separately, so that each claimant may be advised of his distinct interest involved in the litigation. I shall affirm the order of sale heretofore made; but the sale is to take place in the mode and manner more fully stated in this opinion. The stay of proceedings is discharged. THE SCHOONER AIGBURTH.-THE BRIG SARAH STARR. Pending the appeals in these cases from decrees of condemnation, an order was made by this court, at the instance of the claimants, for bonding the vessels. They were appraised for that purpose, and the bonds were tendered, when the marshal intervened, and claimed payment of his fees and disbursements in the seizure and subsequent safe-keeping of the vessels, and also for wharfage, towage, &c., or at least that the claimants pay into court a sum of money to cover these fees and expenses: held that the claimants were, thus far, liable for nothing but the expenses of bonding the vessel. Under the act of March 25, 1862, (12 U. S. Stat. at Large, 374,) the claimant is not responsible for the costs and expenses attending the seizure, detention, and safe custody of property seized as prize, unless there is a decree of condemnation, or of restitution on payment of costs. All captures made by public armed vessels belong to the government and no title exists in the captors, except to their distributive shares of the proceeds after condemnation. (Before NELSON, J., May 19, 1862.) NELSON, J.: These two vessels were seized as prizes by the government, and were condemned in the court below, and are in this court on appeal. An order was heretofore made, at the instance of the claim |