A-57539, NOVEMBER 14, 1934, 14 COMP. GEN. 389

A-57539: Nov 14, 1934

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1928 (45 STAT. 413) - MONEYS COVERED INTO THE TREASURY PURSUANT TO ORDER OF COURT MONEYS COVERED INTO THE TREASURY PURSUANT TO AN ORDER OF A COURT HAVING JURISDICTION TO ISSUE SUCH AN ORDER ARE NOT ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY WITHIN THE MEANING OF ANY LAW AUTHORIZING THE WITHDRAWAL OF MONEYS ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY. 1934: SEAMEN OF THE STEAMSHIP SANTA ANA HAVE PRESENTED CLAIM FOR $398. THE STEAMSHIP SANTA ANA AND HER CARGO WERE SEIZED AT THE PORT OF TAMPA. CLAIMANTS OF BOTH VESSEL AND CARGO INTERVENED AT ABOUT THE SAME TIME AND THE RIGHTS OF THE PARTIES WERE ADJUDICATED BY DECREE OF THE COURT ENTERED JUNE 30. IT WAS DECREED BY THE COURT THAT THE SEAMEN HAD A FIRST LIEN ON THE PROCEEDS FROM THE SALE OF THE VESSEL FOR THE SUMS FOUND TO BE DUE THEM AS WAGES.

A-57539, NOVEMBER 14, 1934, 14 COMP. GEN. 389

CLAIMS - ACT OF APRIL 10, 1928 (45 STAT. 413) - MONEYS COVERED INTO THE TREASURY PURSUANT TO ORDER OF COURT MONEYS COVERED INTO THE TREASURY PURSUANT TO AN ORDER OF A COURT HAVING JURISDICTION TO ISSUE SUCH AN ORDER ARE NOT ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY WITHIN THE MEANING OF ANY LAW AUTHORIZING THE WITHDRAWAL OF MONEYS ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY. A CLAIM FOR REFUND OF MONEYS COVERED INTO THE TREASURY PURSUANT TO AN ORDER OF A COURT DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO JUSTIFY REPORTING IT TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE ACT OF APRIL 10, 1928 (45 STAT. 413).

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 14, 1934:

SEAMEN OF THE STEAMSHIP SANTA ANA HAVE PRESENTED CLAIM FOR $398, REPRESENTING PROCEEDS OF SALE OF A QUANTITY OF CANNED SALMON SOLD PURSUANT TO AMENDED FINAL DECREE ENTERED ON THE 6TH DAY OF MAY 1930, IN CASE NO. 2358-T, CIVIL, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA.

ON DECEMBER 30, 1929, THE STEAMSHIP SANTA ANA AND HER CARGO WERE SEIZED AT THE PORT OF TAMPA, FLA., UNDER AN ORDER OF ATTACHMENT IN ADMIRALTY IN CAUSE NUMBERED 2347-TAMPA-CIVIL, ORIGINALLY INSTITUTED BY THE MERRITT- CHAPMAN AND SCOTT CORPORATION IN THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF FLORIDA. ON JANUARY 2, 1930, CLAIMANTS, AS SEAMEN OF SAID VESSEL, INTERVENED CLAIMING A LIEN ON BOTH VESSEL AND CARGO ON ACCOUNT OF UNPAID WAGES. CLAIMANTS OF BOTH VESSEL AND CARGO INTERVENED AT ABOUT THE SAME TIME AND THE RIGHTS OF THE PARTIES WERE ADJUDICATED BY DECREE OF THE COURT ENTERED JUNE 30, 1931. IT WAS DECREED BY THE COURT THAT THE SEAMEN HAD A FIRST LIEN ON THE PROCEEDS FROM THE SALE OF THE VESSEL FOR THE SUMS FOUND TO BE DUE THEM AS WAGES, BUT HAD NO LIEN UPON THE CARGO. THE VESSEL AND ITS CARGO, WHICH CONSISTED LARGELY OF PERISHABLES, HAD THERETOFORE BEEN SOLD AND THE PROCEEDS WERE THEN IN THE REGISTRY OF THE COURT WITH THE EXCEPTION OF $398, THE PROCEEDS FROM THE SALE OF CANNED SALMON WHICH APPARENTLY WAS BEING HELD SEPARATELY IN THE ACCOUNTS OF THE CLERK OF THE COURT. THE DECREE DIRECTED THE CLERK TO TRANSFER THIS AMOUNT TO THE REGISTRY IN THIS CAUSE.

AN APPEAL FROM THE DECREE OF THE DISTRICT COURT WAS TAKEN TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT, WHICH REVERSED THE DECREE AND REMANDED THE CASE FOR FURTHER PROCEEDINGS PURSUANT TO FINDINGS EXPRESSED IN THE OPINION. AS PERTINENT TO THE QUESTION HERE INVOLVED, THE CIRCUIT COURT OF APPEALS HELD THAT THE SEAMEN WERE ENTITLED TO A FIRST LIEN FOR WAGES ON THAT PART OF CARGO PROCEEDS REPRESENTING UNPAID FREIGHT FOR WHICH THE SHIP HAS A LIEN ON THE CARGO. THE SEAMEN WERE HELD TO HAVE AN INDIRECT BUT ENFORCEABLE LIEN ON EACH LOT OF THE CARGO FOR THE EARNED UNPAID FREIGHT DUE ON IT. (SEE 57 FED./2D) 1021.)

UNDER THE DIRECTIONS OF THE CIRCUIT COURT OF APPEALS, THE DISTRICT COURT, ON JUNE 8, 1932, BY FINAL DECREE, ORDERED DISTRIBUTION OF THE FUNDS IN THE REGISTRY OF THE COURT, INCLUDING $398, PROCEEDS FROM THE SALE OF THE SALMON, WHICH WAS AGAIN ORDERED TRANSFERRED TO THE REGISTRY OF THE COURT IN THIS CAUSE.

DURING THE PENDENCY OF THE AFORESAID ACTION AND WHILE THE VESSEL AND ITS ENTIRE CARGO WERE LEGALLY IN CUSTODY OF THE COURT BY VIRTUE OF ORDERS OF ATTACHMENT ISSUED AND SERVED IN THAT CAUSE, TO WIT, ON JANUARY 28, 1930 AT THE INSTANCE OF THE DEPARTMENT OF AGRICULTURE, THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF FLORIDA INSTITUTED A SEPARATE LIBEL PROCEEDING, NO. 2358-T, CIVIL, ALLEGING FORFEITURE OF THE CANNED SALMON IN THE CARGO FOR VIOLATION OF THE PURE FOOD AND DRUGS ACT OF JUNE 30, 1906 (34 STAT. 771). NO PERSON HAVING FILED ANSWER OR CLAIM ON OR BEFORE THE 17TH DAY OF APRIL 1930, A DECREE PRO CONFESSO WAS ENTERED BY WHICH THE SAID SALMON WERE CONDEMNED AND FORFEITED TO THE UNITED STATES AND ORDERED DESTROYED.

THE PROPERTY HAD BEEN BROUGHT INTO COURT ON A SEIZURE, UPON ALLEGATION OF FORFEITURE; SERVICE IS PRESUMED TO HAVE BEEN REGULAR AND MADE ACCORDING TO LAW AND IS DEEMED NOTICE TO ALL PERSONS HAVING AN INTEREST IN THE PROPERTY; AND IF THEY FAIL TO ASSERT THEIR CLAIMS, THEY MAY, UNDER THE LAW, BE HELD IN CONTUMACY AND DEFAULT. SEE THE MARY ANNE, FED. CASE NO. 9195 AND AUTHORITIES THEREIN CITED. THIS IS THE ORDINARY PRACTICE AND PROCEDURE IN COURTS OF ADMIRALTY, AND EXCEPT FOR ORDERS AND DECREES SUBSEQUENTLY MADE THEREIN, WOULD CONSTITUTE A TERMINATION OF THE MATTER.

THEREAFTER, ON MAY 6, 1930, ON MOTION OF THE UNITED STATES ATTORNEY, THE DECREE OF CONDEMNATION AND DESTRUCTION ENTERED ON APRIL 17, 1930, WAS AMENDED AND THE SAID SALMON WAS ORDERED SOLD FOR PURPOSES OTHER THAN HUMAN CONSUMPTION, AND IT WAS DIRECTED THAT THE PROCEEDS OF THE SALE BE DEPOSITED IN THE REGISTRY OF THE COURT AS FUNDS IN THE CASE OF MERRITT- CHAPMAN AND SCOTT VS. STEAMSHIP SANTA ANA, THEN PENDING IN THAT COURT. THE MARSHAL'S REPORT OF SALE OF THE SALMON WAS APPROVED BY THE COURT ON THE 16TH DAY OF MAY, 1930. THE ORDER OF CONFIRMATION DOES NOT DIRECT ANY DISPOSITION OF THE PROCEEDS OF THE SALE BUT, APPARENTLY, IT WAS NOT DEPOSITED IN THE REGISTRY OF THE COURT AS FUNDS IN CASE NO. 2347.

ON JUNE 30, 1930, IT APPEARING THAT THE CONDITIONS OF SALE OF THE SALMON HAD BEEN VIOLATED AND THEY WERE BEING SOLD AND USED AS FOOD FOR HUMAN CONSUMPTION, AN ALIAS WARRANT OF SEIZURE AND MONITION WAS ISSUED AGAINST THE SAID SALMON. THE SALMON WERE AGAIN SEIZED AND FORFEITED TO THE UNITED STATES BY DECREE ENTERED MARCH 7, 1931, BUT AT THIS TIME THEY WERE THE PROPERTY OF PURCHASERS AT MARSHAL'S SALE OR THEIR ASSIGNEES, AND WERE NO LONGER A PART OF THE VESSEL'S CARGO.

SEVERAL MONTHS LATER, AND WHILE THE APPEAL IN THE MERRITT-CHAPMAN AND SCOTT CASE WAS STILL PENDING, TO WIT, ON DECEMBER 21, 1931, A DECREE OF THE COURT WAS ENTERED DIRECTING THE CLERK OF THE COURT TO FORTHWITH PAY THE $398, PROCEEDS OF THE SALE OF THE SALMON, INTO THE TREASURY OF THE UNITED STATES. PURSUANT TO THIS ORDER, THE AMOUNT WAS COVERED INTO THE TREASURY UNDER WARRANT NO. 6532, DATED JANUARY 12, 1932 (2850) "FINES AND PENALTIES, ALL OTHER, DEPARTMENT OF JUSTICE.' CLAIMANTS SEEK A RETURN OF THIS AMOUNT TO THE REGISTRY OF THE COURT BY SOME ACTION OF THIS OFFICE, BUT IF THAT CANNOT BE DONE, REQUEST THE COMPTROLLER GENERAL OF THE UNITED STATES TO REPORT THE MATTER TO THE CONGRESS PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 10, 1928 (45 STAT. 413).

THE AMOUNT CLAIMED AS PROCEEDS FROM THE SALE OF THE SALMON WAS COVERED INTO THE TREASURY OF THE UNITED STATES PURSUANT TO AN ORDER OF COURT DULY ENTERED OF RECORD. SO FAR AS IT IS DISCLOSED BY THE RECORD, THAT ORDER HAS NOT BEEN MODIFIED, AMENDED, OR SET ASIDE, AND NO APPEAL THEREFROM WAS TAKEN. NO POSITIVE EVIDENCE APPEARS IN THE RECORD SHOWING WHETHER THE DECREE OF THE COURT WAS ENTERED IN ERROR, THROUGH OVERSIGHT, OR AFTER CONSIDERATION. IT DOES NOT AFFIRMATIVELY APPEAR WHETHER THE COURT WAS FULLY ADVISED OF THE TRUE STATUS OF THE WHOLE CASE AT THE TIME THE ORDER WAS ENTERED AND, IF NOT, WHETHER THE ORDER WOULD HAVE BEEN ENTERED IF THE COURT HAD BEEN FULLY ADVISED. IN EITHER CASE IT IS NOT THE PROVINCE OF THIS OFFICE TO REVIEW THE JUDGMENT OR ORDERS OF THE COURT, AND UNDER THE PRESENT STATE OF RECORD IT CANNOT BE HELD THAT THE FUNDS IN QUESTION WERE ERRONEOUSLY COVERED INTO THE TREASURY OF THE UNITED STATES, AND, IN MY JUDGMENT, THE CLAIM IS WITHOUT SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING CONSIDERATION BY THE CONGRESS.

ACCORDINGLY, THE REQUEST THAT THE MATTER BE REPORTED TO THE CONGRESS, PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 10, 1928 (45 STAT. 413), MUST BE, AND IS, DENIED.