A-59746, JUNE 10, 1935, 14 COMP. GEN. 880

A-59746: Jun 10, 1935

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

APPROPRIATION - AVAILABILITY - EXPENSES OF SEIZURE - CUSTOMS VIOLATION THE EXPENSE INCIDENT TO GUARDING AND STORING A VESSEL TAKEN INTO CUSTODY BY UNITED STATES CUSTOMS OFFICERS FOR VIOLATION OF SECTION 453 OF THE TARIFF ACT OF 1930 INCURRED PRIOR TO THE TRANSFER OF SAID VESSEL TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT AND THE SEIZURE THEREOF BY THE UNITED STATES MARSHAL UNDER ORDER OF THE COURT FOR THE PURPOSE OF PRESENTING A CIVIL ACTION IN REM IN AN ADMIRALTY COURT IS PROPERLY CHARGEABLE TO THE APPROPRIATION FOR "COLLECTING THE REVENUE FROM CUSTOMS.'. ANY EXPENSE INCURRED AFTER THE FORMAL SEIZURE OF THE VESSEL BY THE UNITED STATES MARSHAL IS PROPERLY CHARGEABLE TO THE APPROPRIATION FOR "SALARIES.

A-59746, JUNE 10, 1935, 14 COMP. GEN. 880

APPROPRIATION - AVAILABILITY - EXPENSES OF SEIZURE - CUSTOMS VIOLATION THE EXPENSE INCIDENT TO GUARDING AND STORING A VESSEL TAKEN INTO CUSTODY BY UNITED STATES CUSTOMS OFFICERS FOR VIOLATION OF SECTION 453 OF THE TARIFF ACT OF 1930 INCURRED PRIOR TO THE TRANSFER OF SAID VESSEL TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT AND THE SEIZURE THEREOF BY THE UNITED STATES MARSHAL UNDER ORDER OF THE COURT FOR THE PURPOSE OF PRESENTING A CIVIL ACTION IN REM IN AN ADMIRALTY COURT IS PROPERLY CHARGEABLE TO THE APPROPRIATION FOR "COLLECTING THE REVENUE FROM CUSTOMS.' ANY EXPENSE INCURRED AFTER THE FORMAL SEIZURE OF THE VESSEL BY THE UNITED STATES MARSHAL IS PROPERLY CHARGEABLE TO THE APPROPRIATION FOR "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JUNE 10, 1935:

REFERENCE IS HAD TO OFFICE LETTER OF FEBRUARY 18, 1935, AND YOUR REPLY OF MAY 20, 1935, PERTAINING TO THE PROPER APPROPRIATION TO BE CHARGED WITH A VOUCHER IN FAVOR OF PHILIP ABY IN THE AMOUNT OF $99.75 AS FOR GUARD HIRE FROM NOVEMBER 21 TO DECEMBER 20, 1934, ON THE BOAT NORA S NO. 228702, SEIZED ON NOVEMBER 21, 1934, BY THE UNITED STATES MARSHAL ON ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, FOR VIOLATION OF SECTION 453 OF THE TARIFF ACT OF 1930, RELATING TO THE LADING AND UNLADING OF MERCHANDISE OR BAGGAGE FROM VESSELS OR VEHICLES WITHOUT SECURING FROM THE COLLECTOR OF CUSTOMS A SPECIAL LICENSE OR PERMIT THEREFOR.

IN YOUR LETTER OF MAY 20, 1935, YOU STATE:

IT APPEARS THAT PURSUANT TO A WRIT OF SEIZURE ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, THE UNITED STATES MARSHAL SEIZED THE BOAT AND TOOK IT INTO CUSTODY ON NOVEMBER 20, 1934; THAT IT BEING IMPOSSIBLE TO PLACE THE BOAT IN STORAGE, THE MARSHAL ON DECEMBER 6, 1934, PETITIONED THE COURT FOR AUTHORITY TO EMPLOY A GUARD THEREFOR DURING THE PERIOD IT WAS BEING HELD BY HIM SUBJECT TO THE ORDER OF THE COURT, AND THAT THE COURT ON THE SAME DAY, AFTER CONSIDERING THE PETITION OF THE MARSHAL, ORDERED THE EMPLOYMENT OF A GUARD TO WATCH AND TAKE CARE OF THE BOAT AT THE RATE OF $3.50 PER DAY OF 24 HOURS FROM NOVEMBER 20, 1934, TO AND INCLUDING THE DAY OF DISPOSITION OF THE CRAFT BY ORDER OF COURT. IT FURTHER APPEARS THAT THE MARSHAL OBTAINED THE PERMISSION OF THE ATTORNEY GENERAL'S OFFICE TO INCUR THE EXPENSE OF GUARDING THE BOAT, AS ORDERED BY THE COURT, FOR A PERIOD NOT TO EXCEED 30 DAYS FROM NOVEMBER 20, 1934. IT ALSO APPEARS THAT THE BOAT REMAINED IN THE CUSTODY OF THE MARSHAL AFTER DECEMBER 20, 1934.

THE PRESENT CAUSE IS A CIVIL PROCEEDING IN REM IN AN ADMIRALTY COURT. THE ADMIRALTY RULES PROVIDE THAT THE PROCESS SHALL BE SERVED BY THE MARSHAL; THAT THE MARSHAL SHALL ARREST AND TAKE THE SHIP INTO HIS POSSESSION FOR SAFE CUSTODY AND SHALL PUBLISH NOTICE THEREOF AND OF THE TIME ASSIGNED FOR THE RETURN OF THE PROCESS AND THE HEARING OF THE CAUSE AS THE DISTRICT COURT SHALL ORDER, AND THAT, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, NO PROPERTY IN THE CUSTODY OF THE MARSHAL SHALL BE DELIVERED UP WITHOUT AN ORDER OF THE COURT (ADMIRALTY RULES 1, 10, AND 57). THE ADMIRALTY RULES HAVING BEEN PROMULGATED BY THE UNITED STATES SUPREME COURT IN PURSUANCE OF AN ACT OF CONGRESS "BECOME/S) A PART OF THE LAW, AND OF AS BINDING FORCE AS IF INCORPORATED IN THE BODY OF THE ACT ITSELF" (U.S. V. BARROWS ET AL., FED. CASE NO. 14529: U.S. V. BARKER LUMBER CO., 169 FED. 184, AND 22 COMP. DEC. 280, 282). THE BOAT NORA S, IN CONTEMPLATION OF LAW, IS IN THE CUSTODY OF THE COURT ITSELF AND THE MARSHAL, THE OFFICIAL KEEPER OF THE COURT, HOLDS IT UNDER THE ORDER OF THE COURT, IS RESPONSIBLE TO THE COURT FOR IT AND IS BOUND TO OBEY AND EXECUTE ALL ITS ORDERS IN RELATION TO IT (THE PHEBE, FED. CASE NO. 11066). IN THE LIGHT OF THESE CONSIDERATIONS IT SEEMS CLEAR THAT THE MARSHAL'S POSSESSION OF THE BOAT IS IN ACCORDANCE WITH EXISTING LAW.

SECTIONS 453, 605, AND 610 OF THE TARIFF ACT OF 1930, 46 STAT. 716, 754, AND 755, PROVIDE:

IF ANY MERCHANDISE OR BAGGAGE IS LADEN ON, OR UNLADEN FROM, ANY VESSEL OR VEHICLE WITHOUT A SPECIAL LICENSE OR PERMIT THEREFOR ISSUED BY THE COLLECTOR, THE MASTER OF SUCH VESSEL OR THE PERSON IN CHARGE OF SUCH VEHICLE AND EVERY OTHER PERSON WHO KNOWINGLY IS CONCERNED, OR WHO AIDS THEREIN, OR IN REMOVING OR OTHERWISE SECURING SUCH MERCHANDISE OR BAGGAGE, SHALL EACH BE LIABLE TO A PENALTY EQUAL TO THE VALUE OF THE MERCHANDISE OR BAGGAGE SO LADEN OR UNLADEN, AND SUCH MERCHANDISE OR BAGGAGE SHALL BE SUBJECT TO FORFEITURE, AND IF THE VALUE THEREOF IS $500 OR MORE, THE VESSEL OR VEHICLE ON OR FROM WHICH THE SAME SHALL BE LADEN OR UNLADEN SHALL BE SUBJECT TO FORFEITURE.

ALL VESSELS, VEHICLES, MERCHANDISE, AND BAGGAGE SEIZED UNDER THE PROVISIONS OF THE CUSTOMS LAWS, OR LAWS RELATING TO THE NAVIGATION, REGISTERING, ENROLLING, OR LICENSING, OR ENTRY, OR CLEARANCE, OF VESSELS, UNLESS OTHERWISE PROVIDED BY LAW, SHALL BE PLACED AND REMAIN IN THE CUSTODY OF THE COLLECTOR FOR THE DISTRICT IN WHICH THE SEIZURE WAS MADE TO AWAIT DISPOSITION ACCORDING TO LAW.

IF THE VALUE RETURNED BY THE APPRAISER OF ANY VESSEL, VEHICLE, MERCHANDISE, OR BAGGAGE SO SEIZED IS GREATER THAN $1,000, THE COLLECTOR SHALL TRANSMIT A REPORT OF THE CASE, WITH THE NAMES OF AVAILABLE WITNESSES, TO THE UNITED STATES ATTORNEY FOR THE DISTRICT IN WHICH THE SEIZURE WAS MADE FOR THE INSTITUTION OF THE PROPER PROCEEDINGS FOR THE CONDEMNATION OF SUCH PROPERTY.

THE ACT OF APRIL 18, 1930, 46 STAT. 189 (SECTION 816, TITLE 28, U.S. CODE) PROVIDES:

* * * THAT THERE SHALL BE PAID HEREUNDER ANY NECESSARY COST OF KEEPING VESSELS OR OTHER PROPERTY ATTACHED OR LIBELED IN ADMIRALTY IN SUCH AMOUNT AS THE COURT, ON PETITION SETTING FORTH THE FACTS UNDER OATH, MAY ALLOW.

AND PROVISION IS MADE ANNUALLY IN THE APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE UNDER THE APPROPRIATION TITLE "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS" FOR GUARDING AND DESTROYING SEIZED PROPERTY.

IT APPEARS FROM THE FACTS DISCLOSED THE VESSEL WAS TAKEN INTO CUSTODY BY CUSTOMS OFFICERS, BUT THE APPRAISED VALUE OF THE VESSEL AND MERCHANDISE BEING MORE THAN $1,000 IT WAS NOT SUBJECTED TO SUMMARY FORFEITURE BUT ITS SEIZURE REQUIRED A CIVIL PROCEEDING IN REM IN AN ADMIRALTY COURT, AND, ACCORDINGLY, THE MATTER WAS REFERRED TO THE UNITED STATES ATTORNEY FOR THE DISTRICT IN WHICH THE VIOLATION OCCURRED AND THE CUSTODY OF THE VESSEL WAS TRANSFERRED TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT, AND THEREAFTER ON NOVEMBER 20, 1934, THE VESSEL WAS SEIZED BY THE UNITED STATES MARSHAL PURSUANT TO A WRIT OF SEIZURE ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA UNDER THE PROVISIONS OF SECTION 610 OF THE TARIFF ACT OF 1930. SEE ARTICLE 1116, CUSTOMS REGULATIONS, 1931.

IT FURTHER APPEARS THAT EXPENSES AMOUNTING TO $93.30 WERE INCURRED WHILE THE VESSEL WAS IN CUSTOMS CUSTODY AND PRIOR TO THE ISSUANCE OF THE WRIT OF SEIZURE BY THE UNITED STATES DISTRICT COURT ON NOVEMBER 20, 1934, AND THAT SUCH EXPENSES HAVE BEEN OR WILL BE PAID FROM THE APPROPRIATION "COLLECTING THE REVENUE FROM CUSTOMS.' UNDER THE CIRCUMSTANCES STATED, THE EXPENSE OF GUARDING THE VESSEL FROM THE DATE OF ITS SEIZURE UNTIL THE PRESENT TIME, THE VESSEL BEING UNDER THE JURISDICTION OF THE COURT AND IN CUSTODY OF THE UNITED STATES MARSHAL, IS AUTHORIZED UNDER THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS" AS A PROPER EXPENSE OF GUARDING SEIZED PROPERTY HELD BY THE MARSHAL UNDER ORDER OF THE COURT.

THIS CASE IS TO BE DISTINGUISHED FROM THE DECISION DATED MAY 17, 1935, A- 60547, ADDRESSED TO YOU, IN WHICH IT WAS HELD THAT THE OFFICIAL SEIZURE OF THE AIRCRAFT IN QUESTION HAVING BEEN MADE BY THE CUSTOMS OFFICERS, THE TRANSFER OF THE CUSTODY THEREOF TO THE DEPARTMENT OF JUSTICE MERELY FOR THE PURPOSE OF ENFORCING THE LIEN AGAINST SAID AIRCRAFT, DID NOT OPERATE TO OBLIGATE THE JUDICIARY APPROPRIATION--- WHILE IN THE INSTANT CASE THE SEIZURE OF THE VESSEL WAS BY THE UNITED STATES MARSHAL UNDER ORDER OF THE COURT, THE VESSEL HAVING BEEN IN CUSTOMS CUSTODY ONLY FOR THE TIME PENDING THE ISSUANCE OF THE WRIT OF SEIZURE BY SAID COURT.