10 U.S.C. § 8853 — Court in which proceedings brought

Page 3399 TITLE 10—ARMED FORCES § 8853 HISTORICAL AND REVISION NOTES—CONTINUED Revised section Source (U.S. Code) Source (Statutes at Large) 7652(c) ..... 34 U.S.C. 1166. Aug. 18, 1942, ch. 553, § 8, 56 Stat. 747. 34 U.S.C. 1161. Aug. 18, 1942, ch. 553, § 3, 56 Stat. 746. Subsection (a) reflects 28 U.S.C. 1333 by restating the basic prize jurisdiction of that section over prizes brought into the United States, and by providing that the extension of prize jurisdiction conferred by 34 U.S.C. 1159 on the United States district courts is ex- clusive of the courts of the States. 34 U.S.C. 1166 and the second sentence of 34 U.S.C. 1164 are executed in the single jurisdictional statement of this section and the consolidation of the Act of August 18, 1942, ch. 553, 56 Stat. 746 (34 U.S.C. 1159–1166) with the earlier prize pro- visions. The words ‘‘during war’’ in 34 U.S.C. 1159 are omitted as covered in § 7651 of this title. In clause (1) the words ‘‘or the Territories, Commonwealths, or pos- sessions’’ are added, since ‘‘United States’’ in this title is geographically limited to the 48 States and the Dis- trict of Columbia, whereas the term here is intended to include all places within the jurisdiction of the district courts. In clause (4) the words ‘‘taken or’’ preceding the words ‘‘appropriated for the use of the United States’’ are omitted as surplusage and in order to avoid confu- sion between the two meanings of the word ‘‘taken’’ in prize law. In both the Revised Statutes and the 1942 Act the phrase ‘‘taken or appropriated’’ means no more than ‘‘appropriated’’ alone, whereas ‘‘taken’’, in the phrase ‘‘taken as prize’’ means ‘‘captured’’. Subsection (b) is included to make the statement of jurisdiction complete. It is derived by implication from the first sentence of R.S. 4625 (34 U.S.C. 1141) which is the source of subsection (c) of § 7653 of this title. Editorial Notes PRIOR PROVISIONS A prior section 8852, added Pub. L. 85–861, § 1(192), Sept. 2, 1958, 72 Stat. 1537; amended Pub. L. 86–559, § 1(74), June 30, 1960, 74 Stat. 280; Pub. L. 99–145, title XIII, § 1303(a)(27)(B), Nov. 8, 1985, 99 Stat. 740; Pub. L. 100–456, div. A, title XII, § 1234(a)(1), Sept. 29, 1988, 102 Stat. 2059, related to transfer or discharge of reserve major generals and brigadier generals with 35 years of service or five years in grade, prior to repeal by Pub. L. 103–337, div. A, title XVI, § 1629(c)(3), Oct. 5, 1994, 108 Stat. 2963, effective Oct. 1, 1996. AMENDMENTS 2018—Pub. L. 115–232 renumbered section 7652 of this title as this section. 2006—Subsec. (a)(1). Pub. L. 109–163 substituted ‘‘Com- monwealths or possessions’’ for ‘‘Territories, Common- wealths, or possessions’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title. § 8853. Court in which proceedings brought (a) If a prize is brought into a port of the United States, or the Commonwealths or posses- sions, proceedings for the adjudication of the prize cause shall be brought in the district in which the port is located. (b) If a prize is brought into the territorial wa- ters of a cobelligerent, or is brought into a lo- cality in the temporary or permanent possession of, or occupied by, the armed forces of the United States, or is appropriated for the use of the United States, before proceedings are start- ed, the venue of the proceedings for adjudication of the cause shall be in the judicial district se- lected by the Attorney General, or his designee, for the convenience of the United States. (c) If the prize property is lost or entirely de- stroyed or if, because of its condition, no part of it has been or can be sent in for adjudication, proceedings for adjudication of the cause may be brought in any district designated by the Sec- retary of the Navy. In such cases the proceeds of anything sold shall be deposited with the Treas- urer of the United States or public depositary in or nearest the district designated by the Sec- retary, subject to the orders of the court for that district. (Aug. 10, 1956, ch. 1041, 70A Stat. 474, § 7653; Pub. L. 109–163, div. A, title X, § 1057(a)(5), Jan. 6, 2006, 119 Stat. 3440; renumbered § 8853, Pub. L. 115–232, div. A, title VIII, § 807(d)(9), Aug. 13, 2018, 132 Stat. 1837.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 7653(b) ..... 34 U.S.C. 1160. Aug. 18, 1942, ch. 553, § 2, 56 Stat. 746. 7653(c) ..... 34 U.S.C. 1141 (less last sentence). R.S. 4625 (less last sen- tence). Subsection (a) is inserted in order to present a com- plete statement of the subject matter of the section. Its substance is not specifically set out in the Revised Statutes but is strongly implied in 34 U.S.C. 1135 which requires the United States attorney for the district in which the port is located to file a libel. In subsection (b) the requisites for jurisdiction con- ferred under the 1942 Act are substituted for the words ‘‘brought under the jurisdiction conferred by this Act’’. The substituted words are the same as those used in clauses (2), (3), and (4) of the preceding section except that the words ‘‘before proceedings are started’’ are added following the words ‘‘appropriated for the use of the United States’’ for clarity. An appropriation can take place before or after proceedings are commenced, but in the latter case there is no occasion for the At- torney General to determine venue. In subsection (c) the words ‘‘or if because the whole has been appropriated to the use of the United States’’ and the words ‘‘or the value of anything taken or ap- propriated for the use of the United States’’ are omit- ted. The provision in the 1942 Act which empowers the Attorney General to decide the venue of proceedings when the prize property has been appropriated is in- compatible with the provision in R.S. 4625 which au- thorizes the Secretary of the Navy to select the judicial district in such cases. Hence the 1942 Act superseded R.S. 4625 with respect to cases of this type. Deposit of the value of prize property appropriated by the United States is adequately covered in § 7663 of this title and is not mentioned here. The second sentence of 34 U.S.C. 1141 (R.S. 4625), relating to proceedings by captors, is omitted because it was rendered inoperative by the Act of March 3, 1899, ch. 413, § 13, 30 Stat. 1007, which re- pealed all laws authorizing the distribution of prize money to captors. Editorial Notes PRIOR PROVISIONS A prior section 8853, added Pub. L. 85–861, § 1(192), Sept. 2, 1958, 72 Stat. 1538; amended Pub. L. 86–559, § 1(75), June 30, 1960, 74 Stat. 280; Pub. L. 98–94, title X, Page 3400 TITLE 10—ARMED FORCES § 8854 § 1016(c), Sept. 24, 1983, 97 Stat. 668, related to computa- tion of years of service, prior to repeal by Pub. L. 103–337, div. A, title XVI, § 1629(c)(3), Oct. 5, 1994, 108 Stat. 2963, effective Oct. 1, 1996. See section 14706 of this title. AMENDMENTS 2018—Pub. L. 115–232 renumbered section 7653 of this title as this section. 2006—Subsec. (a). Pub. L. 109–163 substituted ‘‘Com- monwealths or possessions’’ for ‘‘Territories, Common- wealths, or possessions’’. EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title. § 8854. Effect of failure to start proceedings If a vessel is captured as prize and no pro- ceedings for adjudication are started within a reasonable time, any party claiming the cap- tured property may, in any district court as a court of prize— (1) move for a monition to show cause why such proceedings shall not be started; or (2) bring an original suit for restitution. The monition issued in either case shall be served on the United States Attorney for the district, on the Secretary of the Navy, and on such other persons as are designated by order of the court. (Aug. 10, 1956. ch. 1041, 70A Stat. 475, § 7654; re- numbered § 8854, Pub. L. 115–232, div. A, title VIII, § 807(d)(9), Aug. 13, 2018, 132 Stat. 1837.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 7654 ......... 34 U.S.C. 1141 (last sen- tence). R.S. 4625 (last sentence). Editorial Notes AMENDMENTS 2018—Pub. L. 115–232 renumbered section 7654 of this title as this section. EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title. § 8855. Appointment of prize commissioners and special prize commissioners (a) In each judicial district there may be not more than three prize commissioners, one of whom is the naval prize commissioner. They shall be appointed by the district court for serv- ice in connection with any prize cause in which proceedings are brought under section 8853(a) or (c) of this title. The naval prize commissioner must be an officer of the Navy whose appoint- ment is approved by the Secretary of the Navy. The naval prize commissioner shall protect the interests of the Department of the Navy in the prize property. At least one of the other com- missioners must be a member of the bar of the court, of not less than three years’ standing, who is experienced in taking depositions. (b) A district court may appoint special prize commissioners to perform abroad, in connection with any prize cause in which proceedings are brought under section 8853(b) of this title, the duties prescribed for prize commissioners, and, in connection with those causes, to exercise anywhere such additional powers and perform such additional duties as the court considers proper, including the duties prescribed by this chapter for United States marshals. The court may determine the number and qualifications of the special prize commissioners it appoints, ex- cept that for each cause there shall be at least one naval special prize commissioner. The naval special prize commissioner must be an officer of the Navy whose appointment is approved by the Secretary. The naval special prize commissioner shall protect the interests of the Department of the Navy in the prize property. (Aug. 10, 1956, ch. 1041, 70A Stat. 475, § 7655; re- numbered § 8855 and amended Pub. L. 115–232, div. A, title VIII, §§ 807(d)(9), 809(a), Aug. 13, 2018, 132 Stat. 1837, 1840.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 7655(a) ..... 34 U.S.C. 1137 (less appli- cability to compensa- tion of the naval prize commissioner). R.S. 4621 (less applica- bility to compensation of the naval prize com- missioner); Nov. 14, 1945, ch. 472, § 2, 59 Stat. 581. 7655(b) ..... 34 U.S.C. 1163 (less appli- cability to compensa- tion of the naval spe- cial prize commis- sioner). Aug. 18, 1942, ch. 553, § 5 (less applicability to compensation of the naval special prize commissioner), 56 Stat. 746. The first sentence of subsection (a) is reworded to make it clear that the limitation as to number applies to the number of prize commissioners who may serve in each judicial district at any one time and that the court is not precluded from making additional appoint- ments to fill vacancies. The words ‘‘for service in con- nection with any prize cause in which proceedings are brought under section 7653(a) or (c) of this title’’ are added to distinguish the prize commissioners from the special prize commissioners mentioned in subsection (b). The words ‘‘officer of the Navy’’ in subsections (a) and (b) are substituted for the words ‘‘naval officer, ac- tive or retired’’ because an officer of the Navy does not lose his status as such upon retirement, and to retain these words would open to question the many other provisions in this subtitle treating retired officers as officers. In subsection (b) the words ‘‘in connection with any prize cause in which proceedings are brought under sec- tion 7653(b) of this title’’ are substituted for the words ‘‘in cases arising under this Act’’ for accuracy of ref- erence. The words ‘‘including the duties prescribed by this chapter for United States marshals’’ are added for clarity. Section 7662 of this title prescribes the duties of marshals. Most of these duties could not be per- formed by the marshals if the prize was not brought into a United States port. In such cases occurring dur- ing World War II the courts, under the authority of the 1942 Act, required the special prize commissioners to perform the duties ordinarily performed by the mar- shals. The words ‘‘without regard for the requirements of section 7367 of this title’’ are omitted as unneces- sary, since that section is codified in subsection (a), and language distinguishing the prize commissioners from the special prize commissions is included in each subsection.