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Interlocutory Sale of Res

An interlocutory sale of property is usually done in situations where the goods seized are perishable or are susceptible to deterioration.  Thus, in unavoidable situations courts allow the res to be sold even prior to completion of the action in which it has been arrested or attached.

The party, the marshal, or other person having custody of the property, can make an application for the interlocutory sale of the property.  The court may order all or part of the property sold if the property is perishable or liable to deterioration, decay, or injury by being detained in custody pending the action or the expense of keeping the property is exorbitant.[i]  A court may also order an interlocutory sale in the event of inordinate delay in securing the release of the property.  The court will order the sale proceeds, or as much of them as will satisfy the judgment, paid into court to await further orders of the court.  The sale can be made by the marshal or a deputy marshal, or by other person or organization having the warrant.  The court may authorize any person, at its discretion, to make the sale  if the marshal or other person having the warrant is a party in interest.

As an alternative to sale, the claimant can provide security to the property and apply to the court to order delivery of the res to such claimant.  However, the application should be made within reasonable time.  Vessel owner’s failure to post security for release of vessel during seven-month period between arrest and court’s sale order was deemed to be an unreasonable delay warranting interlocutory sale.[ii]


[i] USCS Admiralty and Maritime Claims R E(9)(a)(i)

[ii] Silver Star Enters. v. M/V Saramacca, 19 F.3d 1008 (5th Cir. La. 1994)

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