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Sale of Res

Courts are entitled to sell seized real property pursuant to resolution of forfeiture action.  The law stipulates that the marshal or deputy marshal shall perform the sale of property.[i]  However, if the marshal is a party in interest, the court will assign other proper officer to make the sale and the proceeds of sale must be paid into the registry of the court to be disposed of according to law.

Rule E(9) (b) is distinct from USCS Admiralty and Maritime Claims R E(9) (a) which authorizes interlocutory sale .  An interlocutory sale requires an additional showing that the goods are perishable, that the expense of keeping the goods is excessive and there is unreasonable delay in securing the release of the property.[ii]  The marshal will not be held in contempt for refusing to sell the vessel, even though the judge orders the sale, if the marshal never lawfully arrests the vessel plaintiff held as a substitute custodian, “and the maritime lienholder fails to make the refundable deposit for the marshal’s fees and follow the requirements of the Supplemental Admiralty Rules calling for notice to the claimants.”[iii]

To effect a sale, “a party, the marshal, or other person having custody of the property” must move the court.[iv]

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

[ii] Orient Overseas Container Line, Ltd. v. Larue Int’l, 2008 U.S. Dist. LEXIS 40902 (D.N.J. May 21, 2008)

[iii] Nuta v. M/V “Fountas Four”, 753 F. Supp. 352 (S.D. Fla. 1990)

[iv] Capital Yacht Club v. Vessel Aviva, 228 F.R.D. 389, 396 (D.D.C. 2005)

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