The opinion of the court was delivered by: BYERS
These are two motions in companion cases, for leave on the part of the petitioner in each, to intervene and file a libel in that behalf by N. Y. Harbor Terminal Corporation, to be called Harbor.
In the first cause the United States filed its libel on May 4, 1955 for the condemnation and forfeiture of 11,020 bags of borax because as alleged, the export thereof was in violation of the Export Control Act, 22 U.S.C.A. § 401 and 50 U.S.C.A.Appendix, § 2021 et seq.
An amended libel was filed September 2, 1955 whish invoked as well the Export Regulations, etc. 15 C.F.R. § 368 et seq. The amended libel need not be set forth for the purposes of this motion; it will suffice to say that it pleads matters and transactions which are deemed to justify forfeiture to the United States of the borax described in the caption, the condemnation of which is sought.
Facts are pleaded to indicate that an export license was illegally procured and that seizure was lawfully made of the subject matter on May 4, 1955 in this District. That export had been attempted under B No. Hamburg LA-5- dated January 24, 1955 which was unlawfully prepared, etc., for reasons stated.
The prayer is for process and attachment, to bring the borax within this court's jurisdiction, as well 'as of monition to all parties in interest, to appear upon the return day of such process and duly intervene herein by claim or plea in the premises' and due proceedings being had, for condemnation and forfeiture.
On May 18, 1955 claim was filed by Mitsui S/S Co. Ltd., the carrier of the cargo containing this borax, as intervenor claiming a maritime lien for freight, etc.; and its libel and filed September 30, 1955.
On the same day Kesco Company filed a claim as owner of the borax.
On October 18, 1955 the answer to the amended libel by Kesco was filed, which contains denials, and also raises issues of law.
Meanwhile intermediate proceedings were had which need not be recited, except to note that on July 19, 1955 an affidavit by the Assistant U.S. Attorney in charge of this matter was filed stating that he had served notice of motion for sale of the borax, upon proctors for the claimants above named, and upon 'Simon and Brand, Esqs., 44 Court Street, Brooklyn, N.Y., Proctors for New York Harbor Terminal Corporation, in regard to its claim for intervention herein, dated June 28, 1955.'
I find no such claim in the file but this affidavit conclusively shows that as early as July 19, 1955, the libelant knew of the claim.
A notice of this motion was served by Harbor on October 21, 1955, returnable November 2, 1955, but for some reason not explained, the motion was not heard until December 14, and all papers required for its consideration were not filed until January 5, 1956.
The proposed intervening libel and complaint seeks to impress a lien upon the proceeds of the said sale for storage charges on its pier 13, Stapleton, S.I., from April 7, 1955 to May 6, 1955, both dates inclusive, pursuant to alleged request of the U.S. Collector of Customs.
Whether there was such a request or agreement would be a matter of proof on the trial.
The Government opposes intervention seemingly on the theory that the petitioner is not ...