The opinion of the court was delivered by: BYERS
This is a motion for an order directing the United States attorney to return to the Concord Casualty & Surety Company $379.80 deposited by it under its bond dated January 25, 1930, given in this proceeding. In effect, the surety is asking to be relieved of its obligation.
Pursuant to proceedings duly had, the above-named vessel was seized, condemned and forfeited because of a violation of the National Prohibition Act (27 USCA) committed by those in charge.
The final decree is dated January 22, 1930, and provides for the condemnation and forfeiture of both the vessel and cargo, and that the libellant have judgment against the said vessel "for the payment of costs and disbursements as taxed, amounting to Three hundred seventy-nine and 80/100 ($379.80) Dollars, * * * and that libellant have execution therefor."
The cargo was ordered to be destroyed, and the decree further provided that the marshal was directed to turn over to the Coast Guard the said vessel, her tackle, apparel, furniture, papers and engines, "for use in the Coast Guard Service of the United States, as provided by" (title 27 U.S.C. §§ 41, 43 [27 USCA §§ 41, 43]).
The decree contains a stay until the determination of an appeal taken by the claimant to the Circuit Court of Appeals for this circuit.
Such appeal was taken and on July 31, 1930, the decree having been affirmed [42 F.2d 858], an order on mandate was entered, affirming the said decree.
The surety company gave a bond entitled "Stipulation for claimant's or respondent's costs," which recited the filing of the libel and the making of a claim by the owner to the vessel, and by another corporation to the cargo, the presently material part being:
"And Concord Casualty and Surety Company, Stipulator, parties hereto, hereby consenting and agreeing that if the said Libellant recover costs, the decree therefore not exceeding the sum of three hundred and seventy nine and 80/100 ($379.80) Dollars, which may be entered against the said vessel 'Harbour Trader'
"Now, therefore, it is hereby stipulated and agreed for the benefit of whom it may concern, that the said Concord * * * Company, * * * Stipulator, shall, and is hereby bound in the sum of three hundred and seventy nine and 80/100 ($379.80) Dollars, conditioned that it will pay all costs and expenses which shall be awarded against the said vessel 'Harbour Trader,' by decree of this Court and in case of appeal by any Appellate Court."
It is conceded that the vessel was transferred to the Coast Guard pursuant to the terms of the said decree; that is to say, there was no sale of the res, whereby there was no fund produced from which the costs would have been collected, and the contention is, that the vessel having been so acquired by the government, the costs in question should be payable by the latter, and the surety should be relieved of the obligation above stated.
No case has been found which passes upon this question.
The statute involved is the Act of March 3, 1925, c. 438, § 3 (27 U.S.C. § 43 [27 USCA § 43]), which provides in substance that under such circumstances the vessel so acquired shall be utilized only for official purposes in the enforcement of the law; and
"The appropriations available for enforcement of this title shall be available for the payment of expenses of maintenance, repair, and operation of said vessels and vehicles. * * * Said appropriations shall also be available for the payment of the actual costs incident to the seizure and forfeiture, and if the seizure is made under any section of law under which liens are recognized, for the payment of the amount of such lien allowed by the court. A report shall be submitted to Congress each year in the Budget, setting forth in detail a description of the vessels or vehicles so acquired, the cost of acquiring, the appraised value thereof, the uses to which they have been put, the appraised value of seizures resulting from their use, and the ...