Burke v. The M. P. Rich

CLIFFORD, Circuit Justice.. It is obvious, from the statement already given, that the equities of the case are strongly with the libel-lant; butl am of the opinion, as matter of law, that the marshal had no authority to effect insurance on the vessel at the expense of either party without their consent. It is the duty of the marshal to execute throughout the. district all lawful precepts directed to him and issued under the authority of the United States, and he has the same powers in executing such precepts as sheriffs or their deputies have in the performance of similar duties under the laws of the states. [Act Sept. 24, 1789] 1 Stat. 87. Whenever a seizure of property is made by him under a lawful precept, he is bound to use due and reasonable diligence to keep it in such safe and secure manner as to protect it from injury while in his custody, so that if it be condemned, or ordered to be restored to the owner, its value to the parties may not be impaired. Like the sheriff, he is only a bailee for a special purpose; and even if it be admitted that he may insure the property for his own protection, it is dear, I think, that the insurers would be liable only to the extent of his special interest, unless it appeared that in effecting the insurance he was acting under some authority from the owner. No case has been cited where it has been held that the sheriff is the agent of either party for the purpose of effecting insurance upon property attached and in his custody, and it is believed that no such case can be found. Want of authority is the foundation difficulty in the way of the libel-lant, and it is one which courts of justice cannot remove. Property seized under process from the admiralty is within the control of the court, and in general, where there is danger of irreparable loss during the pend-ency of the suit, it is ordered to be sold and the proceeds placed in the registry of the court. That power is liberally exercised by the court, so that in most cases where there is any real embarrassment, the marshal is relieved from extraordinary responsibility. Notwithstanding the seizure, the owner may insure if he sees fit, and, if he elects not to do so, the marshal is only responsible for such reasonable care and diligence as is imposed on him by law. He must perform his-duty according to law, and is entitled to-such compensation, and only such compensation, as the law prescribes and allows. [Act Feb. 26, 1853] 10 Stat. 164. Great abuse might result from the opposite rule;, and in the absence of any decided case acknowledging the right claimed, and of any known practice of the courts sanctioning it, I am constrained to disallow the two item» to which the objection applies.