Opinion
April 14, 1926.
Emory R. Buckner, U.S. Atty., of New York City (James A. Farmer, Asst. U.S. Atty., of New York City, of counsel), for the United States.
Louis Halle, of New York City, for claimant.
In Admiralty. Suit by the United States against the motorboat Lynx II. On application of claimant for release of boat on bond. Granted.
This is an application by the owner of the motorboat Lynx II, libelled for violation of Rev. Stat. U.S. §§ 3450, 4337, and 4377 (Comp. St. §§ 6352, 8086, 8132), as well as the National Prohibition Act (Comp. St. § 10138¼ et seq.), and sections 587, 593(a), and 593(b), and section 594 of the Tariff Act of 1922 (Comp. St. §§ 5841h6, 5841h12 -5841h14), to release her on bond.
Section 938 of the Revised Statutes (Comp. St. § 1564) provides for bonding in cases where a vessel is seized "under any law respecting the revenue from imports or tonnage, or the registering and recording, or the enrolling and licensing of vessels." Rev. Stat. § 941 (Comp. St. § 1567), which excepts "cases of seizure for forfeiture under any law of the United States," evidently is limited to filing a bond with the marshal in cases of suits for penalties in double the amount claimed where no forfeiture is sought.
I cannot see how the exception of "seizure for forfeiture" in section 941 can be regarded as excluding all cases of forfeiture from the provisions for bonding in section 938. Such a construction makes an exception in one statute equivalent to affirmative legislation against the release of a vessel in cases generally covered by the language of another. Moreover it derogates by implication from the general practice of courts of admiralty in cases covered by the broad terms of a rule laid down by the Supreme Court.
The fact that section 26 of title 2 of the National Prohibition Act (Comp. St. § 10138½mm), makes bonding mandatory, and that vessels have long been released on bond in this and the Eastern district, when seized for violation of the revenue laws, is an additional reason for adhering to the settled practice.
The dictum in The Three Friends, 166 U.S. at page 68, 17 S. Ct. 495, 41 L. Ed. 897, involved a filibustering statute with special considerations of public policy, and that decision, as well as that of Judge Brown in The Mary N. Hogan (D.C.) 17 F. 813, was made when the admiralty rule did not, as the present rule 12, contain mandatory language.
The motion is granted.