UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

ONE (1) 1944 STEEL HULL FREIGHTER CONVERTED WARTIME LANDING CRAFT UTILITY VESSEL (LCU) SHAMROCK, APPROXIMATELY 112 FEET IN LENGTH, TOGETHER WITH ITS TACKLE, APPAREL, HARNESS AND EQUIPMENT, DEFENDANT, V. KEMUR INTERNATIONAL, INC., CLAIMANT/COUNTERCLAIM PLAINTIFF-APPELLANT

11th Cir. | 1983-02-11

No. 82-5125

Before GODBOLD, Chief Judge, FAY and CLARK, Circuit Judges.

697 F.2d 1030 Court of Appeals for the Eleventh Circuit (1983) Positive Treatment

Cited by 6 cases

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Holding

The court held that in a summary judgment action, the moving party bears the burden of showing no genuine issue of material fact, even if the non-moving party would have the burden of proof at trial.

Facts & Procedural History

The Customs Service seized the M/V Shamrock after finding marijuana aboard and sought forfeiture. The government moved for summary judgment, but prese…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Common Carrier Forfeiture Genuine Issue Of Material Fact Probable Cause

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Opinion of the Court

CLARK, Circuit Judge:

After finding 3,168 pounds of marijuana sealed in drums aboard the M/V Shamrock on June 2,1978, the Customs Service seized the vessel on July 20, 1978. Following the seizure, the government sought forfeiture under 49 U.S.C. sec. 782, 21 U.S.C. sec. 881, and 19 U.S.C. sec. 1594. The sworn statements of the Shamrock’s captain and first mate were in apparent contradiction as to the matter of the captain’s knowledge of the presence of the marijuana. On October 21, 1981, the district court granted the government’s motion for summary judgment.

In a trial of this case, a court would employ a three-tiered analysis of the facts. See United States v. One (1) Liberian Refrigerator Vessel, 447 F.Supp. 1053 (M.D.Fla.1977), aff’d, 617 F. 2d 136 (5th Cir.1980). First, the court would determine whether the government had proved probable cause for the seizure of the vessel. Next, if the court had found probable cause, the burden would shift to the claimant to establish by a preponderance of the evidence its status as a common carrier pursuant to 19 U.S.C. sec. 1594, 21 U.S.C. sec. 881, or 49 U.S.C. sec. 782. Finally, if such status is proved, a determination by the court would return the burden to the government to prove that either the owner or the captain of the vessel was privy to the illegal activity or a consenting party thereto.

The issue in this case is whether, in a summary judgment action, the burden of proving common carrier status rests on the claimant, as it would in a trial. The government argues that it does. In its Motion for Summary Judgment and accompanying Memorandum, the government presented no evidence to show that appellant was not a common carrier. (Record, 159).

Given this failure by the government, summary judgment should not have been granted because, whether or not the non-moving party has the burden of proof at trial, in a summary judgment action the moving party has the burden of showing that there is no genuine issue of material fact. Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F. 2d 135, 139 (5th Cir.1973); Sheridan v. Garrison, 415 F. 2d 699, 709 (5th Cir.1969); Dawkins v. Green, 412 F. 2d 644, 646 (5th Cir.1969); Reed v. Rheem Manufacturing Company, 364 F. 2d 810, 811 (5th Cir.1966). See 6 J. Moore, W. Taggert & J. Wicker, Moore’s Federal Practice ¶56.15, at 56-480; 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil sec. 2713, at 407; sec. 2716, at 430-32; sec. 2727, at 524-28.

In the trial of One Liberian Refrigerator Vessel, the district court judge based his conclusion that the vessel was not a common carrier on claimant’s failure to introduce any evidence that the carrier (1) solicited, advertised, or held itself out as a carrier for all shippers; (2) considered filing or had filed a tariff with the Federal Maritime Commission as required of every common carrier by water in interstate commerce under 46 U.S.C. sec. 817; or (3) carried for hire under bills of lading all cargoes tendered it in the relevant part of its trade. Id. at 1061. The government should have attempted a showing, addressed to one or more of these points, or some other relevant factors, to provide a basis for finding that the Shamrock was not a common carrier. Such a showing would have then shifted the burden to the claimant to demonstrate that common carrier status was indeed a genuine issue of material fact.

REVERSED AND REMANDED.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

United States v. Little AL, 712 F.2d 133 (5th Cir. 1983)

…) (upholding forfeiture based on unrebutted showing of probable cause). If Pollard had [*137] controverted facts upon which the probable cause showing relied, summary judgment would have been improper. United States v. One 1944 Steel Hull Freighter, 697 F. 2d 1030,1031-32 (11th Cir.1983). As the Court of Appeals for the Sixth Circuit, however, has noted: While we cannot agree with the government’s insistance that probable cause is all that is needed by way of proof to justify a forfeiture even in the face of…
United States v. ONE Single Fam. Residence Located AT 15603 85TH Ave. N., 933 F.2d 976 (11th Cir. 1991)

…een the property and Curtis’s illegal activities. Once probable cause is established, the burden shifts to the claimant to establish by a preponderance of the evidence a defense to the forfeiture. See United States v. One 1944 Steel Hull Freighter, 697 F. 2d 1030 (11th Cir.1983); United States v. $4,255,000, 762 F. 2d 895, 905 (11th Cir.1985). This burden is met either by rebutting the government’s evidence that the property was purchased with proceeds of illegal drug activities or a showing that the claiman…
Capitol Funds, Inc. v. Arlen Realty, Inc., 755 F.2d 1544 (11th Cir. 1985)

…judicata, McAfee v. Martin, 211 Ga. 14, 83 S.E. 2d 605 (1954), and that on summary judgment the.tenant must prove that there is no material dispute of fact, resolving all inferences against the tenant, United States v. One 1944 Steel Hull Freighter, 697 F. 2d 1030 (11th Cir.1983). The landlord argues that the district court incorrectly applied this standard by inferring that the incidents of disrepair raised by the counterclaim were the same as those raised in the state claim. It argues that the covenant to…

Authorities Cited

Benton-Volvo-Metairie, Inc. v. Volvo Sw., Inc., 479 F.2d 135 (5th Cir. 1973)
Sheridan v. Garrison, 415 F.2d 699 (5th Cir. 1969)
Irvin Lee "Jack" Dawkins v. Green, 412 F.2d 644 (5th Cir. 1969)
EA Shipping Co., Inc. v. Bazemore, 617 F.2d 136 (5th Cir. 1980)
Reed v. Rheem Mfg. Co. & Emp'rs Mut. Liab. Ins. Co. of Wis., 364 F.2d 810 (5th Cir. 1966)

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