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THE VILLARPEROSA

January 31, 1942

THE VILLARPEROSA


The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is a motion made by the United States of America, the libellant, for an order directing the United States Marshal for this district and the Collector of Customs to comply with a notice of taking issued by the United States Maritime Commission.

The libellant requests that the Court make an order directing the Marshal of this Court be permitted to appoint the Master of the Villarperosa or other person having the custody of the vessel and their successors in such custody, as Special Deputy United States Marshals, and that said vessel in such custody be turned over by him to the United States Maritime Commission for the purposes of the requisition issued by it, and that the Special Deputy Marshal or his substitute remain always in possession of the vessel for and in behalf of the United States and that the vessel be returned to the custody of the Marshal of this Court upon being released from said requisition or taking by the United States Maritime Commission.

 The notice of requisition of the United States Maritime Commission was made pursuant to the authority of the Act of June 6, 1941, Public Law 101-77th Congress, 46 U.S.C.A. note preceding section 1101.

 The following resolution was adopted by the United States Maritime Commission:

 "Resolution

 "Whereas section 1 of the act of Congress approved June 6, 1941, Public Law 101-77th Congress, provides, in part: '* * * during the existence of the national emergency declared by the President on September 8, 1939, to exist, but not after June 30, 1942, the President is authorized and empowered, through such agency or officer as he shall designate, to purchase, requisition, for any period during such emergency charter or requisition the use of, or take over the title to, or the possession of, for such use or disposition as he shall direct, any foreign merchant vessel which is lying idle in waters within the jurisdiction of the United States, including the Philippine Islands and the Canal Zone, and which is necessary to the national defense * * *.'

 "And Whereas the President, by Executive Order dated June 6, 1941, No. 8771, and by an Amendment thereto, dated September 2, 1941, No. 8881, found that the foreign merchant vessels lying idle in waters within the jurisdiction of the United States, including the Philippine Islands and the Canal Zone, are necessary to the national defense, and authorized and empowered the United States Maritime Commission to take over, and to use and dispose of, any or all such vessels in the manner provided in said act and said Executive Order as amended; "And Whereas the immediate acquisition of the following foreign merchant vessel which is lying idle within waters within the jurisdiction of the United States, including the Philippine Islands and the Canal Zone, is necessary to the national defense: Vessel Present Location Villarperosa Brooklyn, New York

 "And Whereas the Commission finds and determines that said vessel was not on September 3, 1939, and continuously thereafter, exclusively owned, used and operated for its exclusive sovereign purposes by any sovereign nation;

 "Now Therefore, Be It Resolved that the Commission, by virtue of the authority vested in it by the aforesaid act and said Executive Order, and amendment thereto, does hereby, effective as of October 31, 1941, at 12 o'clock, noon, Eastern Standard Time, take over the possession and use of the aforesaid vessel, including all tackle, apparel, furniture, spare parts, gear and equipment, and all stores and supplies, including fuel, aboard such vessel, subject to the Terms and Conditions of the Taking, Use and Disposition of the vessel, hereinafter referred to, all without prejudice to the rights of the United States under any executive seizure of, or forfeiture proceedings against, said vessel, heretofore or hereafter affected or instituted; and

 "Further Resolved that any cargo found aboard said vessel be discharged and stored for account of whom it may concern and that the Commission, if necessary, guarantee payment of storage charges; and

 "Further Resolved that the Secretary be, and he hereby is, authorized and directed as promptly as possible, to give notice of the taking of the aforesaid vessel, and to take actual possession thereof on behalf of the Commission, by causing an original counterpart or true copy of the Notice of Taking thereof to be affixed in a conspicuous place in such vessel, and to mail an original counterpart or true copy of such Notice of Taking to (1) the Secretary of the Treasury, (2) the owner or owners of the vessel, and (3) any other person whom the General Counsel shall designate, and to put in the records of the Commission proper affidavits of the giving of such notice: Provided, That the mailing of such notice shall be deemed to be for the purposes of information only and shall not be necessary to the validity of the taking of said vessel; and

 "Further Resolved that the General Counsel be, and he hereby is, authorized and directed to prepare and submit to the Commission for approval of the Commission a Statement of the Terms and Conditions of the Taking, Use and Disposition of the Vessel; and

 "Further Resolved that the Appraisal Committee be and it hereby is authorized and directed to determine the compensation to be paid the owner or owners of said vessel, in accordance with the provisions of the act approved June 6, 1941, and to submit its recommendations with respect thereto to the Commission; and

 "Further Resolved that the proper officers of the Commission be, and they hereby are, authorized and directed to take any and all actions necessary and proper to carry out the action of the Commission as set forth in the preceding resolutions."

 Pursuant to this resolution the following requisition was made by the United States Maritime Commission on October 30, 1941:

 "Notice of Taking of SS Villarperosa (herein called the Vessel)

 "To the Owner or Owners of the Vessel (and all persons claiming an ...


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