Jurisdictional Statement — Calero-Toledo v. Pearson Yacht Leasing Co.

Supreme Court brief1974

Ask Donna

What actually matters in this document.

Text

Maes F Po es ee, ey ee ae

ot Mati: SBE. ,

¥

” ‘ . 6 T) OVS aan

a ‘

=>

SUPREME COURT, U. S. JUL 2

In Tue

Ocroser Term, 1973

Astot Cauero-Totepo, Superintendent of Police, Enear R.

Bauzac, Administrator of the General Services Adminis-

tration of the Commonwealth of Puerto Rico,

Appellants,

v.

Pearson Yacut Leasrne Co.,

Appellee.

On AppEAL FROM THE Unrrep Srares Disrricr

CourrT For THE District or Purrro Rico

JURISDICTIONAL STATEMENT

Lywn R. CoLemMan

2100 First City Natl. Bank Bldg

Houston, Texas 77002

Of Counsel:

Francisco DE Jesus-Scouck

Attorney General,

MrrimmM Naverra dE Ropon

Solicitor General,

The Commonwealth of Puerto Rico

Post Office Box 192

San Juan, Puerto Rico 00902

Vinson, Exxrins, Szarus, Connatty & Smita

2100 First City Natl. Bank Bldg.

Houston, Texas 77002

AR Tee kee

INDEX

PAGE

Opinion Below ......... 0... cece eee eees errr rere 2

ee, ee ee ee ee ee ee ee ee 2

Questions Presented ...... ccc ccc cence cence cee eece 2

Statutes Involved ..... sa 4b CREAR SRESSE EE SS ESSE Eb ORD 3

GUAOURGME occ cece cece cca ster sictneseewensereess 3

The Questions Are Substantial .... 1.6.0... 2.0 ee eee ees 6

Summary of Appellants’ Position ................554 6

The Court Below Erred in Holding that Seizure without

Notice Deprived Pearson of Property without Due Process

OE EW ix ino s 6 0000005 4 et Eee Ca eek 9

The Court Below Erred in Holding that Pearson Suffered

a Taking of Property without Just Compensation ....... 11

¢

eee rer rer ee rere a rr 18

pL OTT TTT Tee eee 19

pC eee ee ee 33

PUNE GE aun 6 946.0545 4 RRR RE ORE Sees 37

CITATIONS

Cases

Americana of Puerto Rico, Inc. v. R. Kaplas, 368 F.2d 431

$f be | eT rn rere ree

Ashwander Vv. T.V.A., 297 U.S. 288 (1935) ..........26- 17

Bonet v. Texas Co., 308 U.S. 463 (1940) ...........048- 15

Burge v. United States, 342 F.2d 408 (9th Cir. 1965), cert.

me, Te SE: le ERO as ek ee Secs 10

Commonwealth v. Superior Court, 96 D.P.R. 843, 96 P.R.R.

Se GURL Sica 0 8 kno 4d ae oak keh ORR eae rus 16

Dobbin’s Distillery v. United States, 96 U.S. 395 (1878) ... 12

Downs Vv. Porrata, 75.P.R.R. 572 (1954) ..........008- 9

England v..Bd. of Medical Examiners, 375 U.S. 411 (1964) 15

Fornaris v. Ridge Tool Co., 400 U.S. 41 (1970) ......... 15

IRR eee PEER IN AIR RE ei ete —— SATE EEEERENCEEEe

PAGE

Fuentes v. Shevin, 407 U.S. 67 (1972) .........0005- 6, 7,9, 10

Garcia Vv. Superior Court, 91 P.R.R. 146 (1964) ......... 16

Goldsmith Jr—Grant Co. v. United States, 254 U.S. 505

CRORE 6604 ce obese ss edhek sired ecaes exp anseeses 12, 13

Gore Vv. United States, 357 U.S. 386 (1958) ............. 13

McKeehan v. United States, 438 F.2d 739 (6th Cir. 1971).. 12

Metro Taxi Cabs, Inc. v. Treasurer, 73 D.P.R. 171, 73 P.R.R.

SOE CIBGAS ihc cxccxcackansvaccintivacesceecaads 14, 15

Mora V. Meijas, 115 F.Supp. 610 (D.P.R. 1953) ........ 2

Mora V. Meijas, 206 F.2d 550 (ist Cir., 1953) ........... 2

Mullane v. Central Hanover Tr. Co., 399 U.S. 306 (1950) 11

N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 130

Qi) Pere TET eee eT Ce eT ETT TORS TTT eT TTT 15

Ochoteco V. Superior Court, 88 D.P.R. 517, 88 P.R.R. 500

he | ee eee ee TTT ee TTT TTT TTT TTT eee eee 14, 15

The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) ............ 12

Pa. Public Util. Comm'n v. Pa. R.R. Co., 382 U.S. 281 (1965) 2

Re One 1965 Ford Mustang, 105 Ariz. 293, 463 P.2d 827

to ee ere Ter rer eee TTT 15

Reetz v. Bozanich, 397 U.S. 82 (1970) ............506- 15

Robinson v. Hanrahan, 409 U.S. 38 (1972) ............ 11

Rorick v. Bd. of Comm'rs of Everglades Drainage Dist., 307

TE. De CAPD 60 0ccic sac wda dens eeenacecssscane 2

Stainback v. Wo Hock Ke Lok Po., 336 U.S. 376 (1949)... 2

Suhomlin v. United States, 345 F.Supp. 650 (D.Md. 1972).. 12

United States v. One 1971 Buick Riviera, 463 F.2d 1168

¢ 0 Bc: errr re ere re er 12

United States v. One 1967 Ford Mustang, 457 F.2d 931 (9th

CE BORE: 465.5660 44e ek ened cca eetenenwsh ees 12

United States v. One 1971 Ford Truck, 346 F.Supp. 613

CUR GE SPEED 86k eee ek censeebeadounee hee ue’ 12

United States Vv. Troiano, 365 F.2d 416 (3rd Cir. 1966) cert.

Gombed DAS VS. SSS CIDR) 6 acc ev accssiscascnnsss 10

United States v. One 1971 Buck Riviera, 463 F.2d 1168 (Sth

TAPOLADERD 600 Kd0 660k SwRA SOSA ERASER RR OREN 6, 8, 11, 12,14

Wackenhut Corp. v. Aponte, 266 F.Supp. 401 (D.P.R. 1966) 2

ENR RTE PIO HLT NOTE ANE INE BRIE

a POR PE

'

iii

Statutes

PAGE

21 U.S.C. §881(a), subparagraphs (A) and (B) ........ 6

MB. CF FOE 66 oy ss cae ne seen ee dansaxuensenss 6

28 U.S.C. §1343 2.0... . cc eee ROSE Se eeeeeeesewes 2,5

We UA GZFBE is nk cies deca decenescdabenescesnsaaes 2,5

WP TA BO 4 68 64 66 6 AN EAS 54d owe ne vas ware nes ekeas 6

Controlled Substances Act of Puerto Rico, 24 L.P.R.A. §2102-

2607 (Supp. 1972) ........ ccc ccc ec cece eee ee eee 4

24 L.P.R.A. §2512 (a)(4) and (2) (Supp. 1972) ..... 3, 4,5

24 L.P.R.A. §2510 (Supp. 1972) ................08. 10

Uniform Vehicle, Mount, Vessel and Plane Seizure Act, 34

Saws BRUGES 364400 400Ne dss ECR S tee edeew ks’ 3, 4, 5, 16

23 L.P.R.A. §451, 451b, and 45lc 2.2.2... eee ee eee 3, 5, 18

14A Fla. Stats. Ann. §398.24 2.20... 0c eee ee eee 6

56% Ill. Stats. Ann. §712, §1505 (Supp. 1973) ......... 6

18 Mich. Stats. Ann § 18.1070(55) (Supp. 1973) ........ 6

Supreme Court of the United States

OcroserR TERM, 1973

Astot Catero-ToLepo, Superintendent of Police, Epcar R.

Bauzac, Administrator of the General Services Adminis-

tration of the Commonwealth of Puerto Rico,

Appellants,

Vv.

Pearson Yacut Leasine Co.,

Appellee.

On AppEAL FROM THE Unitep Srates District

Court FOR THE District oF Puerto Rico

JURISDICTIONAL STATEMENT

Appellants take this appeal from the judgment of the

United States District Court for the District of Puerto

Rico, entered on March 29, 1973, declaring unconstitutional

and permanently enjoining the enforcement of certain

seizure and forfeiture statutes of the Commonwealth of

Puerto Rico. Appellants submit this Statement to show

that the Supreme Court of the United States has juris-

diction of the appeal and that a substantial question is

presented.

2

OPINION BELOW

The opinion of the District Court for the District of

Puerto Rico is not yet reported. A copy of the memorandum

opinion and order and a copy of the notice of appeal are

attached hereto (Appendix A).

JURISDICTION

This suit was brought under 28 U.S.C. § 1343 to redress

alleged deprivation of appellee’s rights under the Fifth and

Fourteenth Amendments. A three-judge court was con-

vened pursuant to 28 U.S.C. §2281. This Court has never

passed on the applicability of 28 U.S.C. § 2281 to the Com-

monwealth of Puerto Rico. But district courts have taken

Puerto Rico to be a “state” within contemplation of §2281

ever since shortly after it became a commonwealth. Mora

v. Meijas, 115 F. Supp. 610 (D.P.R. 1953) ; Wackenhut Corp.

v. Aponte, 266 F.Supp. 401 (D.P.R. 1966). See also Mora v.

Meijas, 206 F.2d 550 (1st Cir. 1953), and Americana of

Puerto Rico, Inc. v. R. Kaplas, 368 F.2d 431 (3rd Cir. 1966).

The judgment of the District Court was entered on March

29, 1973, and notice of appeal was filed in that court on

May 8, 1973. Assuming that the three-judge court was

properly called, the jurisdiction of the Supreme Court to

review this decision by direct appeal is conferred by Title

28, United States Code, Section 1253. Pa. Public Util.

Comm'n v. Pa. R.R. Co., 382 U.S. 281 (1965) ; Stainback v.

Wo Hock Ke Lok Po, 336 U.S. 376 (1949); Rorick v. Bd. of

Comm'rs of Everglades Drainage Dist., 307 U.S. 208 (1939).

QUESTIONS PRESENTED

1. Whether appellee, nominally lessor but effectively

conditional vendor of a yacht seized by and forfeited to

the Commonwealth of Puerto Rico, had such a property

interest in the yacht as would support a claim of deprivation

3

of property without due process of law and taking without

just compensation.

2. Whether certain confiscation and forfeiture statutes

of the Commonwealth of Puerto Rico, in authorizing seizure

of property without a prior adversary hearing, deny per-

sons with interests therein due process of law.

3. Whether these statutes must be construed as authoriz-

ing the taking without just compensation of Appellee’s

property, to wit, by denying owners and lienholders who

have consented to the use by others of the property seized

the right to challenge the forfeiture on the grounds of their

own innocence in the wrong for which the property is

seized and forfeited.

STATUTES INVOLVED

The pertinent parts of 24 L.P.R.A. § 2512 (a) (4) and (b)

(Supp. 1972), 34 L.P.R.A. § 1722 (a)-(e), and 23 L.P.R.A.

§ 451, 451b, and 451c are set forth in Appendix B.

STATEMENT!

Appellee (“Pearson”) is a New York incorporated and

based division of Grumman, Inc., engaged in leasing plea-

sure yachts. Appellants are the current Superintendent of

Police and the Administrator of the General Services Ad-

ministration of the Commonwealth of Puerto Rico. On

March 15, 1971, Pearson leased a yacht to Donovan and

1 The factual record on which this appeal is based consists of a

Stipulation of Facts and the lease and option-to-purchase

agreements between Pearson and Lessee, all of which is printed

as Appendix C.

4

Loretta Olson (“Lessee”) for a five year term.” The parties

simultaneously executed an option contract giving Lessee

the right to purchase the yacht on thirty days notice at

any time during the lease term, the price diminishing over

that period at a depreciation rate equivalent to the monthly

rental, At the end of the fifth year the yacht could be pur-

chased for $1.00. App. C, infra, pp. 53-54. In effect, then,

Pearson sold the yacht to its “lessee”, retaining title until

it had received full payment.

On May 6, 1972, Puerto Rican authorities discovered

marihuana on the yacht. Under the Controlled Substances

Act of Puerto Rico, 24 L.P.R.A. § 2102-2607 (Supp. 1972),

possession of marihuana is prohibited. It was stipulated at

trial that Pearson was wholly innocent of this violation of

law. On July 11, 1972, the yacht was seized by the Superin-

tendent of Police, predecessor in office of appellant Astol

Calero-Toledo. 24 L.P.R.A. § 2512 (a)(4) (Supp. 1972)

subjects to forfeiture to the Commonwealth of Puerto

Rico vessels used to transport controlled substances. Under

§ 2512 (b) such property is to be seized and forfeited in

the manner provided by the Uniform Vehicle, Mount, Ves-

sel and Plane Seizure Act, 34 L.P.R.A. § 1722. App. C,

infra, pp. 37-41.

Section 1722 requires the Superintendent to serve notice

of the seizure “on the owner of the property seized or the

person in charge thereof or any person having any known

2 The lease agreement provided that Lessee was to use the yacht

only for legal purposes ; that Lessee, at its expense, was to insure

Pearson against loss of the yacht “sustained in any manner

whatsoever”; that “forfeiture of said Equipment shall not dis-

charge or diminish the obligation of Lessee to pay rent....”

[emphasis supplied] ; that Lessee had the exclusive right to use

and possession of the yacht during the term unless and until

default by Lessee, written notice of default by Pearson, expira-

tion of a fifteen day correction period, and exercise by Pearson

of its right to terminate; and finally, that the yacht was to be

based at the contract date home port of Lessee, specified as a ¢

Puerto Rican address, except with the written consent of ,

Pearson. App. C, infra, pp. 42-50.

ey Veer" Ties PPE IE TRE AT EE

5

right or interested [sic] therein” within ten days. The

Superintendent duly notified Lessee, who was on record

with the Division of Marine Operations of the Ports Au-

thority as the owner of the vessel. 23 L.P.R.A. § 451b and

451c require the owner of the vessel who wishes to operate

it within the navigable waters of Puerto Rico to file an ap-

plication for an indentification number with the Authority.

Neither the Superintendent nor Lessee notified Pearson,

who was not on record with the Ports Authority. App. B,

infra, pp. 33, 34, 36; App. C, infra, p. 39.

Lessee failed to challenge the confiscation within the

fifteen day period following service of notice on him as

provided by §1722(a); under §1722(c), the yacht then

became subject to sale at auction or reservation for official

use of the Government of Puerto Rico. The Chief of the

Office of Transportation, predecessor in office of Edgar R.

‘Balzac, second-named appellant, chose the latter. Pearson

did not learn of the seizure until Lessee defaulted and

Pearson unsuccessfully attempted, on October 19, 1972, to

regain possession of the yacht. App. A, infra, p. 22.

On November 6, 1972, Pearson filed suit in the United

States District Court for the District of Puerto Rico under

28 U.S.C. § 1343, seeking to compel the return of the yacht,

to have 24 L.P.R.A. § 2512(a)(4) and (b) and 34 L.P.R.A.

§1722 declared unconstitutional, and to enjoin their en-

forcement. Pearson also filed a motion to have a three-judge

court convened in accordance with 28 U.S.C. § 2281. On

December 21, appellants withdrew their opposition (on

the basis of the abstention doctrine) to the convening of

the three-judge court, and submitted thereto. App. A, infra,

p. 20.

In its memorandum opinion and order issued March 29,

1973, the three-judge court ordered Puerto Rico to pay

Pearson the appraised value of the yacht, as provided

under 34 L.P.R.A. § 1722(d), and issued a permanent in-

junction against the enforcement of the challenged statu-

6

tory provisions. The order was based on two holdings.

First, the court declared that the challenged statutes, in

authorizing seizure without a hearing, permitted a depriva-

tion of Pearson’s property without due process. The court

claimed support for this proposition in Fuentes v. Shevin,

407 U.S. 67 (1972). (The court did not hold that Puerto

Rico had failed to make reasonable efforts to notify in-

terested parties before the forfeiture, specifically indicating

that had this issue been reached it would have ruled with

appellants. App. A, infra, p. 26.) Second, the court held that

the statutes effected a taking of Pearson’s property without

just compensation in that, as the court read the Supreme

Court of Puerto Rico’s construction of the statutes, they

do not allow the owner of seized property to nullify a for-

feiture by proving his own innocence in the crime for which

the property was seized. United States v. United States

Coin and Currency, 401 U.S. 715, 721-722 (1971) (herein-

after, Coin and Currency), was said to be controlling.

THE QUESTIONS ARE SUBSTANTIAL

Summary of Appellants’ Position

Forfeiture is a standard statutory prescription for prop-

erty used in connection with any of a broad range of viola-

tions of criminal law. See, e.g., 21 U.S.C. § 881(a), from

which the Puerto Rican statute was copied; 49 U.S.C. § 782;

26 U.S.C. § 7301; 56 1/2 Ill. Stats. Ann. § 712, § 1505 (Supp.

1973); 18 Mich. Stats. Ann. § 18.1070(55) (Supp. 1973);

14A Fla. Stats. Ann. § 398.24. All of these statutes and

many Others must fall if the decision below is affirmed.

None provides notice before seizure, which the district

court held due process to require; none of the cited federal

statutes by its terms protects innocent owners and lien-

holders against forfeiture, which the district court held

is necessary to avoid taking without just compensation. If

_ *

EET LLL REESE IEEE NE Ee OPENS nh

7

this Court affirms the district court’s decision without modi-

fication, it will make drafting an effective and constitu-

tional forfeiture statute an impossibility: notice and an

- adversary hearing would enable the genuinely criminal to

remove and hide any property sought to be seized.

By the same reasoning, the foundation of our under-

standing of the Fourth Amendment’s guarantee against

“unreasonable searches and seizures” would be under-

mined: if notice and an adversary hearing must be provided

before property whose possessor has already been arrested

can be seized, does it not follow that notice and an adversary

hearing must be provided before the suspect himself can

be arrested? Manifestly the issues involved in this case are

substantial.

We respectfully submit that the decision of the court

below is, equally clearly, erroneous. Pearson was not de-

prived of any property interest by the seizure of the yacht

from Lessee because it had no possessory interest whatso-

ever in the vessel at that moment, only a security interest,

or at most bare title. Even if Pearson had had a possessory

interest, due process has never been construed by this

Court to require an adversary hearing before seizure in a

quasi-criminal proceeding such as forfeiture, and Fuentes

v. Shevin, cited by the district court as supporting that

construction, expressly rejects it. Due process does require

an attempt to provide appropriate notice and opportunity

for hearing before forfeiture; but the challenged statutes

make adequate provisions for this, and the district court

expressed satisfaction with Puerto Rico’s efforts to notify

parties with interests in the yacht.

The district court found that Pearson’s property was

taken without just compensation because it would have been

"3 SE PIE IY PTET ITE AEA EIS LE EE

bh ie RTE EES TE IE GE LE ERS GERI

8

barred, under Puerto Rican law, from defending in any

forfeiture hearing on the grounds of its own innocence. This

conclusion is incorrect for four reasons. First, this Court’s

statement in Coin and Currency, supra, at 721-22, that for-

feiture statutes “are intended to impose a penalty only

upon those who are significantly involved in a criminal

enterprise” has never been authoritatively interpreted to

require legislative provision of such a defense as a con-

dition to the constitutionality of forfeiture statutes; the

weight of the expressions of lower courts is against«such

an interpretation; and policy and precedent are against

such a requirement. Second, even if the district court was

_ correct in finding that any constitutionally sound forfeiture

statute must permit the defense, there is ample Puerto

Rican precedent for recognizing it without invalidating

the statutes, The court below should have followed these

precedents to avoid declaring the statutes unconstitutional.

Third, depending upon the proper interpretation of another

part of the Puerto Rican statutes, Pearson either still has,

or once had but lost by inaction, an opportunity to present

its defenses to a Puerto Rican court. In neither case can

Pearson be found to have suffered any loss from the con-

stitutional infirmity it alleges. Fourth, it would be grossly

unjust to permit Pearson to extract from Puerto Rico the

appraised value of the yacht. Pearson is already entitled,

under its agreement with Lessee, to the insurance proceeds

and to an action against Lessee for the balance of the rent

due, each of which is presumably at least equal in value

to the yacht when seized, as stipulated by Pearson itself.

Moreover, whatever opportunities to contest the forfeiture

Pearson did have or should have had, it lost them by its

own negligent failure to register its interest in the yacht

with the Puerto Rican Ports Authority as required by the

laws of Puerto Rico.

Ce ey) eae

9

The Court Below Erred in Holding that Seizure without

Notice Deprived Pearson of Property without Due Process

of Law ,

Under Clauses 6 and 11 of the lease, Lessee, not Pearson,

had the exclusive right to possession of the yacht at the

‘time of seizure. App. C, infra, pp. 45, 47. In Puerto Rico,

title to seized property does not pass until forfeiture,

Downs v. Porrata, 76 P.R.R. 572 (1954). Therefore, the

court below erred when it found that Pearson “has been

deprived, since [the seizure of the yacht, on] July 11, 1972

of.valuable property .. .” App. A, infra, p. 21. And it is

therefore impossible for the seizure of the yacht to have

violated Pearson’s rights under the due process clause.

The district court found the statute unconstitutional on

its face because it made no provision for notice and a hear-

ing before seizure. The district court cited Fuentes v.

Shevin, 407 US. 57 (1972), as prohibiting such a “depriva-

tion”, and concluded that “forfeiture is not one of those

extraordinary situations justifying postponing a hearing”

[all emphasis supplied unless otherwise indicated]. App. A,

infra, p. 28. Tlie issue, of course, is whether seizure involves

considerations justifying postponing a hearing; Puerto

Rico, like other American jurisdictions, does provide oppor-

tunity for a hearing before forfeiture. The replevin statutes

which were held in Fuentes v. Shevin to deprive without

due process were described by this Court as follows:

The statutes, moreover, abdicate effective state control

over state power, Private parties, serving their own

private advantage, may unilaterally invoke state power

to replevy goods from another. No state official partici-

pates in the decision to seek a writ; no state official

reviews the basis for the claim to repossession ; and no

state official evaluates the need for immediate seizure.

(407 U.S. at 93.)

10

The Court then went on to say that:

The seizure of possessions under a writ of replevin is

entirely different from the seizure of possessions under

a search warrant. First, the search warrant is generally

issued to serve a highly important governmental need—

e.g., the apprehension and conviction of criminals—

rather than the mere private advantage of a private

party in an economic transaction. Second, a search

warrant is generally issued in situations demanding

prompt action. The danger is all too obvious that a

criminal will destroy or hide evidence or fruits of his

crime if given any prior notice. Third, the Fourth

Amendment guarantees that the state will not issue

search warrants merely upon the conclusory applica-

tion of a private party. It guarantees that the state

will not abdicate control over the issuance of warrants

and that no warrant will be issued without a showing

of probable cause. Thus, our decision today in no way

implies that there must be opportunity for an adversary

hearing before a search warrant is issued. (Id. at 93-94,

n. 30.)

Seizure in a forfeiture proceeding is, like seizure of

evidence for a criminal proceeding, subject to the “probable

cause” requirement of the Fourth Amendment, not the

adversary hearing requirement of the due process clause.®

United States v. Troiano, 365 F.2d 416 (8rd Cir. 1966),

cert. denied 385 U.S. 958 (1966); Burge v. United States,

342 F.2d 408 (9th Cir. 1965), cert. denied 382 U.S. 829

(1965) ; cf. 24 L.P.R.A. § 2510 (Supp. 1972).

The due process clause does obligate the state to make

efforts “reasonably calculated, under all the circumstances,

3 It would be especially absurd to require notice before seizure on

the specific facts of this case: is the state to carry the burden of

notifying all holders of security interests in a vessel transporting

contraband before seizing it?

11

to apprise interested parties of the pendency of the action

{in which their interests will be affected],” Mullane v.

Central Hanover Tr. Co., 399 U.S. 306, 314 (1950) ; Robinson

v. Hanrahan, 409 U.S. 38 (1972). The challenged statute

provides for such notice, and the court below stated that

“from the record in this case, we are not disposed to rule

that the Commonwealth of Puerto Rico did not have reason

to believe that notice to the owner was, in fact, given.”

App. A, infra, p. 26.

Pearson’s sole serious contention was that the hearing

Puerto Rico provides before forfeiture is not meaningful

because the defense of innocence of the crime for which the

vessel is forfeited is not provided by the statutes. The three-

judge court treated this contention as raising the issue of

taking without just compensation,‘ discussed below.

The Court Below Erred in Holding that Pearson Suffered a

Taking of Property without Just Compensation

1. The district court reasoned that if forfeiture statutes

“are intended to impose a penalty only upon those who

are significantly involved in a criminal enterprise,” Coin

and Currency, supra, at 721-2, it is a taking without just

compensation to deny one having an interest in property

seized, but lacking involvement in the crime for which the

seizure was made, the right to preserve his interest against

forfeiture by proof of his innocence. In support of this

“An approach which mystifies appellants. No property is being

taken “for public use” in the eminent domain sense which is

at the core of the just compensation requirement of the Fifth

Amendment. The issue here is whether a state may constitution-

ally apply quasi-criminal sanctions to one who consents to the

use of his property by another, who then uses it in the com-

mission of a crime. Whether the legislative power to define and

to punish criminal conduct extends this far would seem to raise

a question of substantive due process, or perhaps of “excessive

fines” under the Eighth Amendment, not of just compensation.

12

reasoning, the court offered one federal appellate decision

and two federal district court decisions. The appellate deci-

sion, McKeehan v. United States, 438 F.2d 739 (6th Cir.

1971), and one of the district court cases, Suhomlin v. United

States, 345 F.Supp. 650 (D. Md. 1972), each held that the

government was not entitled to forfeiture, given that it had

dropped the criminal charges upon which the initial seizure

had been made. Thus neither examined the status of the

property interest of an innocent party when the possessor

of the property seized is in fact guilty of a criminal viola-

tion supporting forfeiture. The remaining district court

decision, United States v. One 1971 Ford Truck, 346 F.Supp.

613 (C.D. Calif. 1972), does proclaim the principle sought

to be supported, but only in dictum: the court held that

the possessor of the truck was unlawfully in possession of

it when apprehended and so, under a statutory exception,

the innocent owner’s interest could not be forfeited. Jd. at

619-21. This same exception is judicially recognized in

Puerto Rico. Ochoteco v. Superior Court, 88 D.P.R. 517,

88 P.R.R. 500 (1963).

This Court has rejected in a long line of cases the prin-

ciple announced by the court below. Goldsmith Jr.-Grant

Co. v. United States, 254 U.S. 505 (1921); Dobbin’s Distil-

lery v. United States, 96 U.S. 395 (1878); The Palmyra,

25 U.S. (12 Wheat.) 1 (1827). On the strength of a single

district court’s dicta the court below believes that Coin and

Currency overruled these cases. At least two circuit courts

of appeal disagree flatly. United States v. One 1971 Buick

Riviera, 463 F.2d 1168 (5th Cir. 1972); United States v.

One 1967 Ford Mustang, 457 F.2d 931 (9th Cir. 1972). The

latter makes the obvious point that such a decision should

be made only by this Court or by the appropriate legisla-

ture. Id. at 932.

EE RPS IIS RRR I RRR ae nena AEE MERE ass

0 an ne ECE ASS REE Oe es Rees eR ns, Sie re ea Ae Sn Sea ee

13

The desirability of the result reached by the district court

is by no means self-evident. Of course it would be unjust

for an owner to lose his vehicle as a result of a crime com-

mitted by one who has stolen it, because the owner bears

no causal responsibility for the crime, did not in any wey

consent to the risk of its occurrence, and cannot be made

the medium of any deterrence of future occurrences by the

imposition of a forfeiture upon him. No American juris-

diction permits forfeiture in these circumstances. But the

owner who consents to the possession and use of his prop-

erty by another presents a different case. He is a physical

cause of the use of that property in a subsequent violation

of law by the possessor. He is in a position to know of the

risk, to discourage the possessor from committing the crime,

and to protect himself against loss.* In one of the decisions

which the court below thinks has been overruled, this Court

said that in enacting a forfeiture statute a legislature “inter-

poses the care and responsibility of [the owner of property

which may be used to facilitate violations of law] in aid

of the prohibitions of the law and its punitive provi-

sions. .. .” Goldsmith, Jr.-Grant Co. v. United States, 254

U.S. 505, 511 (1921). It is entirely consistent to interpose

the owner’s responsibility when he has consented to use

of the property by another and to refuse to do so when

use by another was against his will. Certainly it is a matter

of the “severity of punishment,’ “its efficacy or its futility,”

matters which this Court has said to be “peculiarly ques-

tions of legislative policy.” Gore v. United States, 357 U.S.

386, 393 (1958).

2. But if justice today insists on allowing the innocent

third party defense against forfeiture, in the form sought

by Pearson, justice can and should be done without striking

5 Pearson is a paradigm example. See lease clauses 4(a), 4(c).

6. App. C, infra, pp. 438, 44, 45.

14

=

down the Puerto Rican statutes as unconstitutional. There

are already two standard exceptions to the long-standing

rule that innocence will not save a third party’s interest in

the seized object, one exempting property used as a com-

mon carrier unless the owner or person in charge is a

consenting party to the violation, the other exempting con-

veyances unlawfully in the possession of one other than

the owner. See, e.g., 21 U.S.C. § 881(a), subparagraphs (A)

and (B). In Puerto Rico these exceptions exist, as the dis-

trict court remarked, by virtue of judicial recognition. App.

A., infra, p. 24, n. 12: Metro Taxi Cabs, Inc. v. Treasurer,

73 D.P.R. 171, 73 P.R.R. 164 (1952), and Ochoteco v.

Superior Court, 88 D.P.R. 517, 88 P.R.R. 500 (1963).

The district court emphasized that the irrelevance to

proceedings under Puerto Rican forfeiture statutes of the

owner’s innocence is “solely as a result of their interpreta-

tion by the Supreme Court of the Commonwealth of Puerto

Rico.” App. A, infra p. 24. The court continued :

We cannot in fairness say that the result is the fault

of the Supreme Court of the Commonwealth of Puerto

Rico, for it, like many other courts, state and federal,

was merely following the construction given the federal

forfeiture statutes by the Supreme Court of the United

States [before Coin and Currency].

The court below was, moreover, confident “that the

Supreme Court of the Commonwealth of Puerto Rico would

have reached the same result as we do here today, in view

of the fact that it has followed federal decisions in inter-

preting local forfeiture statutes.” App. A infra. p. 21. But

if the Puerto Rican Supreme Court were going to reach

this result, it is doubtful that it would have done so by

declaring the statutes unconstitutional. It is far more likely

that the Puerto Rican Supreme Court would have recog-

nized the innocence defense as a gloss on the statutes, just

eee

15

as it did with the other two innocence exceptions.® Metro

Taxi Cabs, Inc. v. Treasurer, supra; Ochoteco v. Superior

Court, supra. The district court below plainly erred when

it said “‘[t]here is no conceivable way in which the Com-

monwealth courts can construe’ the challenged statutes ‘to

avoid the constitutional issues raised in this case.’” App.

A, infra, p. 21.

This Court has said:

The cardinal principle of statutory construction is to

save and not to destroy. * * * as between two possible.

interpretations of a statute, by one of which it would

be unconstitutional and the other valid, our plain duty

is to adopt that which saves the act. Even to avoid a

serious doubt the rule is the same. (N.L.R.B. v. Jones

€ Laughlin Steel Corp., 301 U.S. 130 (1936).)

In this case this principle should apply with special force,

since the federal court elected not to abstain to allow the

Puerto Rican Supreme Court to construe and pass first on

the constitutionality of local statutes.’ Fornaris v. Ridge

Tool Co., 400 U.S. 41 (1970) ; Reetz v. Bozanich, 397 U.S. 82

(1970) ; Bonet v. Texas Co., 308 U.S. 463, 471 (1940).

3. The constitutionality of the alleged failure of Puerto

Rican law to allow the innocent third party defense in for-

®The Arizona Supreme Court so construed the Arizona vehicle

forfeiture statute, even though it had no similar Arizona prece-

dents for its interpretation. Re One 1965 Ford Mustang, 105

Ariz. 293, 463 P.2d 827 (1970).

7 Faithful adherence to the principle of preservative construction

is indispensable to support that narrow limitation of the doctrine

of abstention which this Court, on the grounds of duplication of

effort and expense, has insisted upon. England v. Bd. of Medical

Examiners, 375 U.S. 411 (1964). If state (or Commonwealth)

officials cannot confidently expect adherence to this principle,

they are remiss in their duties when they cooperate, as appellants

did, in facilitating federal consideration of the constitutionality

of state statutes.

16

feiture proceedings is an issue that the district court should

never even have reached. 34 L.P.R.A. § 1722(a) provides

that an interested party has fifteen days in which to chal-

lenge a forfeiture if the courts are to have jurisdiction over

his complaint. App. B, infra, p. 34. It is well established that

this period does not run against an interested party until

he himself has been notified. Garcia v. Superior Court, 91

P.R.R. 146 (1964). In 1964 the Supreme Court of Puerto

Rico said “we have no quarrel with the theory” of a plain-

tiff corporation seeking to contest a forfeiture on the

grounds that notice was not properly served on it more than

one year after notice had been served on its president. Com-

monwealth v. Superior Court, 96 D.P.R. 843, 845, 96 P.R.R.

822, 824 (1969), n.1 [translation from the Spanish text by

Fernando E. Agrait-Betancourt, Assistant Secretary, Office

of the Attorney General of the Commonwealth of Puerto

Rico].

Pearson by its own admission had actual knowledge of

seizure of the yacht by October 19, 1972, more than fifteen

days before it filed its suit in federal district court. If

actual notice satisfies the statutory requirements, then Pear-

son, like the plaintiff in Commonwealth v. Superior Co

supra, has lost its chance to air its third party dete

through its own inaction. "

Presumably this is the basis of the conclusion of the court

below that Pearson is time-barred from the Puerto Rican

courts. App. A. infra, pp. 21-22. If, however, only notice ac-

cording to the statutory formula will suffice, as Garcia v.

Superior Court, supra, would indicate, then Pearson has

not yet been notified and hence has not yet been barred

from the courts of Puerto Rico. On either interpretation,

Pearson has suffered no damage as a result of the alleged

failure of the Puerto Rican statute to satisfy the asserted

just compensation standard. As Justice Brandeis said in

17

his benchmark concurring opinion in Ashwander v. T.V.A.,

297 U.S. 288, 347-8 (1935):

The Court will not pass upon the validity of a statute

upon complaint of one who fails to show that he is in-

jured by its operation.

4. According to the district court, Pearson “is entitled

to be paid the amount of the appraisal, plus interest.” App.

A., infra, p. 30. The district court cannot be basing its de-

termination of what it would take to justly compensate

Pearson. Clause 4(a) of the lease required Lessee to fur-

nish Lessor with insurance policies with loss payable to

Lessor “insuring Lessor against damage, loss, or destruc-

tion of the Equipment under this lease sustained in any

manner whatsoever in an amount not less than the replace-

ment value of said Equipment.” App. C., infra, p. 43. The

record contains no pleading, much less any evidence, and

there is no reason to assume, that this insurance does not

exist or did not fully compensate Pearson.

In addition, clause 4(c) provides that “the damage, de-

struction, loss, disability or forfeiture of said Equipment

shall not discharge or diminish the obligation of Lessee to

pay rent as provided in this agreement.” App. C, infra, p. 44.

The agreement provided rental payments of $474.66 per

month, which over the full lease term comes to considerably

more than the “unit price” specified by Pearson. App. ©,

infra, p. 52. This sum became due no later than October 19,

1972, under clause 7, App. C, infra, p. 45, thus “entitling”

Pearson to an action in debt for that amount. This cause

of action is the compensation properly envisaged by the

lease in the event of forfeiture, and Pearson should be held

to it.

Finally, if Pearson is now badly placed to seek from

Puerto Rico courts the relief it believes itself guaranteed

EE Pras ie it ve PE Re sa

18

by the federal Constitution, this is doubly due to its own

negligence. Pearson knew — insisted on knowing — that the

yacht would be based in Puerto Rico, clauses 9, 12, App. C,

infra pp. 47-48, but failed to register with Puerto Rico

authorities the ownership interest which it claims, contrary

to. 23 L.P.R.A. §451b, 451e. A mortgagee who fails to

record his interest loses it to a good faith purchaser ; Pear-

son deserves no greater protection when it fails to comply

with a state’s police measures. Pearson knew by October

19, 1972 that the yacht had been seized, but failed to act

within the time provided by Puerto Rican law. This case

should present no occasion to reward inattention to local

law.

CONCLUSION

For the foregoing reasons, probable jurisdiction should

be noted.

Respectfully submitted,

Lynn R. Coteman

2100 First City Natl. Bank Bldg.

Houston, Texas 77002

Of Counsel:

FRANCISCO DE JESUS-ScHUCK

Attorney General,

Miriam Naverra DE Ropon

Solicitor General,

The Commonwealth of Puerto Rico

Post Office Box 192

San Juan, Puerto Rico 00902

Vinson, ELxk1ns, SEARLS, Connat_y & SmitTH

2100 First City Natl. Bank Bldg.

Houston, Texas 77002

July 21, 1973

(Appendices Follow)

19

APPENDIX A

In Tue

United States District Cont

For Tue District or Purrto Rico

Crvi No. 1018-72

Pearson Yacut Leastnc Company, Division of

-Grumman Allied Industries, Inc.

Plaintiff,

Vv.

Luis Torres Massa, as Superintendent of Police of the

Commonwealth of Puerto Rico, and Manvet Martinez

Suarez, as Chief of the Office of Transportation of the

Commonwealth of Puerto Rico,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff instituted this suit seeking permanent injunc-

tive relief alleging that the seizure and forfeiture of its

property by the Superintendent of Police of the Common-

wealth of Puerto Rico (hereinafter referred to as the

Superintendent), violated the Due Process Clause, and con-

stituted a taking of property without just compensation,

contrary to the Fifth and Fourteenth Amendments of the

Constitution of the United States. As the action sought

to enjoin the enforcement of a state statute on the grounds

of its inconsistency with the Constitution of the United

20

States, a three-judge court was convened.’ Although the

jurisdiction of this Court is not in issue, we do neverthe-

less find that all prerequisites, both jurisdictional and

pseudojurisdictional,? are present and, therefore, conclude

that this case is properly before us.

‘1. The constitutional claim presented is substantial.

Monroe v. Pape, 365 U.S. 167 (1961) ; McNeese v. Board of

Education for Community School District No. 187, 373 U.S.

668 (1963); Lynch v. Household Finance Corporation, 405

U.S. 538 (1972).

2. The challenged statutes have statewide applicability.

Board of Regents of the University of Texas System v.

New Left Education Project, 404 U.S. 541 (1972).

3. The so-called pseudojurisdictional defenses, such as

exhaustion, abstention and comity, do not apply to this case.

Exhaustion of state judicial remedies is not a prerequisite

to invoking federal jurisdiction seeking constitutional pro-

tection, Marin v. University of Puerto Rico, 346 F. Supp.

470 (D.P.R. 1972). Insofar as abstention is concerned, we

specifically find that the statutes here involved, as well as

their predecessors, have been consistently interpreted by

1 At first, the defendants, represented by the Secretary of Justice

of the Commonwealth of Puerto Rico, opposed plaintiff’s motion

to convene a three-judge court, alleging as sole defense that this

was a case calling for the application of the doctrine of

abstention. After oral argument on the motion, the Secretary

withdrew this defense and filed a motion consenting to the

convening of a three-judge court. The District Judge, having

found that all jurisdictional pre-requisites had been met, then

requested the three-judge court.

2 This term is borrowed from Hobbs v. Thompson, 448 F. 2d 456

(5 Cir. 1971).

SE ee een Se TT eee

21

the Supreme Court of the Commonwealth of Puerto Rico*®

and, consequently, under the cases of Wisconsin v. Con-

stantineau, 400 U.S. 433 (1970); Fornaris v. Ridge Tool

Co., 400 U.S. 41 (1970); Reete v. Bozanich, 397 U.S. 82

(1970) ; Harman v. Forsseneius, 380 U.S. 528 (1964), and

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941), we need not abstain. We do, nonetheless, believe that

the Supreme Court of the Commonwealth of Puerto Rico

would have reached the same result as we do here today, in

view of the fact that it has followed federal decisions in

interpreting local forfeiture statutes.

There is “no conceivable way in which the Commonwealth

Courts can construe” the challenged statutes “to avoid the

constitutional issues raised in ‘this case.” Rolando Santin

. Arias v. Examining Board of Refrigeration and Air Con-

ditioning Technicians, ...... F. Supp. ...... (D.P.R. 1972),

Opinion entered November 20, 1972). In rejecting absten-

tion, we have also taken into account the ensuing delay and

the prejudice and additional losses that plaintiff would

have to bear. Plaintiff has been deprived, since July 11,

1972, of valuable property and of the income produced by

it. Also, the nature of the property itself, a yacht, makes

it specially susceptible to deterioration and other perils of

the sea. But, most compelling, is the fact that under the

statutory scheme, the available procedure precludes plain-

8 General Motors Acceptance Corporation v. Brafiuela, 61 D.P.R.

725, 61 P.R.R. 701 (1943) ; Torres v. Buscaglia, 68 D.P.R. 336,

68 P.R.R. 314 (1948) ; Martinez v. Buscaglia, 69 D.P.R. 438, 69

P.R.R. 406 (1948) ; General Motors Acceptance Corporation v.

District Court, 70 D.P.R. 941, 70 P.R.R. 898 (1950) ; Metro

\ Taxicabs v. Treasurer, 73 D.P.R. 171, 78 P.R.R. 164 (1952) ;

Stuckert Motor Company, Inc. v. District Court, 74 D.P.R. 527,

74 P.R.R. 494 (1953) ; Melendez v. Superior Court, 90 D.P.R.

656, 677-678, 90 P.R.R. 639, 659-660 ; Commonwealth v. Superior

Court, 94 D.P.R. 717, 94 P.R.R. 687 (1967).

22

tiff from challenging the forfeiture in the state courts.‘

Finally, injunctive relief cannot be granted by the Courts

of the Commonwealth of Puerto Rico because of the exist-

ence in Puerto Rico of an anti-injunction statute.’ Having

thus considered these threshold issues, we face the issue

on the merits.

Our task has been greatly simplified by the cooperation

of the parties in stipulating the facts relevant to the con-

stitutional issues raised. These can be summdrized as

follows: Plaintiff is in the business of leasing pleasure

yachts in the United States and Puerto Rico. On July 11,

1972, one of its yachts was seized by the Superintendent

and forfeited to the Commonwealth of Puerto Rico. At the

time of seizure, the yacht in question was in the possession

of a third party pursuant to @ lease agreement, which

among other things specifically prohibited lessee from

using the leased property for an unlawful purpose. The

lessee had been discovered by police agents possessing

marihuana while on board the yacht which, under Puerto

Rican law is prohibited.* Plaintiff did not know that its

property was being used for an illegal purpose and was

completely innocent of the lessee’s criminal act. After the

seizure and within the time allowed by law,’ the Superin-

tendent notified lessee. Plaintiff was never notified and,

‘Title 34, Laws of Puerto Rico Annotated, Section 1722(a) pro-

vides: “The filing of such complaint within the period herein

established shall be considered a jurisdictional prerequisite for

availing of the action herein authorized.” During oral argu-

ment, the Government agreed that under the circumstances of

this case, the plaintiff was time barred.

5 Title 32, Laws of Puerto Rico Annotated, Section 3524; Arraras

v. Tribunal Superior, ...... DPB. ..ng ann PR. om (Decion

entered January 27, 1972).

6 Controlled Substances Act of Puerto Rico, Title 24, Laws of

Puerto Rico Annotated, Sections 2101-2607. This law is similar

- pe Federal Act, Title 21, United States Code, Section 801,

7 Title % 34, Laws of Puerto Rico Annotated, Section 1722(a).

23

since lessee did not post bond,® the yacht was forfeited to

the Commonwealth of Puerto Rico. It was not until plaintiff

attempted to recover possession of the yacht after lessee

had defaulted in the rental payments that plaintiff learned

of its forfeiture.

Plaintiff then instituted this suit seeking permanent in-

junctive relief alleging that the statutes under which the

defendants had seized the vessel violated the Due Process

Clause and, also, that its property had been taken for

public use without just compensation.® We agree with the

plaintiff.

‘The statutes involved are Title 24, Laws of Puerto Rico

Annotated, Section 2512, which is part of the Controlled

Substances Act,!° and Title 34, Laws of Puerto Rico An-

notated. Section 1722, better known as the Uniform Vehicle,

Mount, Vessel and Plane Seizure Act.’! Under Paragraph

(a) (4) of the Controlled Substances Act, it is provided that

forfeiture shall be had of:

“(4) all conveyances, including aircraft vehicles,

mount or vessels, which are used, or are intended for

use, to transport, or in any manner to facilitate the

transportation, sale, receipt, possession, or conceal-

ment of [a controlled substance} described in clauses

(1) and (2) of this subsection.”

Since marihuana is a controlled substance under the Act,

it is included in clause (1) of Section 2512, Subsection (a).

Thus, possession of marihuana while on board a vessel

makes the vessel subject to forfeiture. Subsection (a)(4),

like its predecessor, Title 24, Laws of Puerto Rico An-

notated, Section 975(f), makes no distinction between con-

® Title 34, Laws of Puerto Rico Annotated, Section 1722(c¢).

® The yacht was not sold at public auction in the manner pro-

vided by Title 34, Laws of Puerto Rico Annotated, Section

1722(¢). Nevertheless, the Government has set it aside for

official use.

10 Note 7, supra.

11 Title 34, Laws of Puerto Rico Annotated, Section 1721.

24

veyances owned by the person accused of the illegal act and

conveyances owned by a person who is innocent of the

possessor’s criminal act and is in no way whatsoever con-

nected with it.” |

In its brief and oral argument, the Commonwealth of

Puerto Rico conceded that the owner’s innocence is irrele-

vant to forfeiture proceedings under Section 2512(a) (4),

and other Commonwealth of Puerto Rico forfeiture statutes,

solely as a result of their interpretation by the Supreme

Court of the Commonwealth of Puerto Rico.'* We cannot

in fairness say that the result is the fault of the Supreme

Court of the Commonwealth of Puerto Rico, for it, like

many other courts, state and federal, was merely following

the construction given to federal forfeiture statutes by the

Supreme Court of the United States. See Goldsmith Jr.-

Grant Co. v. United States, 254 U.S. 505 (1921); United

States v. One Ford Coupe, 272 U.S. 321 (1926); Dobbin’s

Distillery v. United States, 96 U.S. 395, 399-401 (1878) ; The

Palmyra, 12 Wheat. 1, 14, 6 L. Ed. 531 (1827), which cases

have since been overruled. Inasmuch as Puerto Rican for- -

feitures statutes were, in most instances, copied from their

federal counterparts, as a matter of judicial construction

it was logically expected that they would have been inter-

preted by the Supreme Court of the Commonwealth of

Puerto Rico in like manner.

12 Title 24, L.P.R.A., Section 2512(a), save for some unimportant

differences, is an exact copy of its federal counterpart, 21

U.S.C., Section 881(a). The federal act, however, provides that

under certain circumstances, property may not be forfeited.

Subparagraph (A) excepts from forfeiture property used as a

common carrier unless the owner or person in charge was &

consenting party or privy to a violation of this chapter. Sub-

paragraph (B) excepts from forfeiture conveyances which are

unlawfully in the possession of a person other than the owner

in violation of the criminal laws of the United States or of any

state. Although excluded from 24 L.P.R.A., Section 2512(a) (4),

these exceptions have been judicially recognized by the Supreme

Court of Puerto Rico in the cases of Metro Taxicabs Inc. v. Treas-

urer, 73 D.P.R. 171,73 P.R.R. 164 (1952), and Ochoteco v.

Superior Court, 88 D.P.R. 517, 88 P.R.R. 500 (1963).

13 See cases cited in Note 3, supra.

—

25

The recent decision of United States v. United States

Coin and Currency, 401 U.S. 715 (1971), ended the fiction

that inanimate objects themselves can be guilty of wrong-

doing and it condemned, in the words of Blackstone, the

seizure of the property of the innocent “as based upon a

‘superstition’ inherited from the ‘blind days’ of feu-

dalism.”"* Justice Harlan, writing for the majority in that

case, stated:

“We would first have to be satisfied that a forfeiture

statute, with such a broad sweep, did not raise serious

constitutional questions under that portion of the Fifth

Amendment which commands that no person shall be

‘deprived of * * * property, without due process of

law; nor shall private property be taken for public

use, without just compensation.’®

Even before the advent of Coin and Currency, the Court

of Appeals for the Sixth Circuit, in the case of McKeehan

v. United States, 438 F. 2d 739 (1971), rejected the legal

fiction that inanimate objects can be guilty of wrongdoing

and went on to say that under the Fifth Amendment “the

imposition of forfeiture on the appellant is penal and

causes an unconstitutional deprivation of personal pro-

perty “without just compensation.”"* Justice Belaval of the

Supreme Court of the Commonwealth of Puerto Rico had

so held in writing the dissenting opinion in Commonwealth

v. Superior Court, 94 D.P.R. 717, 725-807, 94 P.R.R. 687,

695-773 (1967). In 1972, a California District Court, in the

case of United States v. One 1971 Ford Truck, 346 F. Supp.

613, followed Coin and Currency in setting aside the for-

feiture of a vehicle used in connection with an illegal trans-

action, but whose owner was innocent of the criminal act.

14 United States v. United States Coin and Currency, 401 U.S. 715,

at 721-723, citing from 1 W. Blackstone, Commentaries, C. 8,300.

15 Td. 401 U.S., at 720.

16 Td. 438 F. 2d at 745.

FEELERS LNAI AOLELR ELE ES EET PE ORR Na tyne ES

LORETO ERED AOE RHEE ROR AE GMD

26

A similar result was reached in Suhomlin v. United States,

345 F. Supp. 650, 655 (D. Maryland 1972).

It is clear that the forfeiture of plaintiff’s property under

Title 24, Laws of Puerto Rico Annotated, Section 2512(a)

(4), and Title 34, Laws of Puerto Rico Annotated, Section

1722, is unconstitutional in that property of a totally in-

nocent person has been taken for government use without

just compensation. To this extent, we hold that the forfei-

ture of plaintiff’s yacht is confiscatory and deprives plain-

tiff of property without just compensation.

Plaintiff also alleges that the proceedure under which

property is forfeited violates the Due Process Clause. It

claims that Title 34, L.P.R.A., Section 1722, known as the

Uniform Vehicle, Mount, Vessel and Plane Seizure Act,”

does not meet the due process requirements in allowing the

seizure of property without a hearing and before judgment,

in failing to require the giving of adequate notice, in not

providing for an adequate and meaningful hearing, in

providing a procedure where the illegal use-is presumed

and the burden of providing otherwise is on the claimant,

and in establishing a procedure with limited defenses.

From the record in this case, we are not. disposed to rule

that the Commonwealth of Puerté Rico did not have reason

to believe the notice to the owner was, in fact, given. Be-

cause of the result we reach here, this issue becomes acade-

mic. We realize that failure to provide proper notice may

violate i standards. Menkarell’v. Bureau of Nar-

cotics, 463 F. 2d 88, 94 (3 Cir. 1972); Jackel v. United

States, 304 F. Supp. 993, 999 (S.D.N.Y. 1969).

We do, however, agree with plaintiff that the prehearing,

17 34 L.P.R.A., Section 1722, is made applicable to forfeiture for

violations of the Controlled Substances Act of Puerto Rico, by

virtue of 24 L.P.R.A., Section 2512(b).

7

27

prejudgment provision of this statute does not meet due

process requirements. Section 1722(a) provides:

“... The proceedings shall be begun by the seizure

of the property by the Secretary of Justice, the Secre-

tary of the Treasury or the Police Superintendent,

through their delegates, policemen or other peace

officers.”

There is no provision whereby the seizure can be con-

tested before it is made. In this limited posture, the statute

on its face is unconstitutional, Recent Supreme Court de-

cisions have made it clear that, absent some justification

reflecting an important governmental or general public in-

terest, property or property rights may not be seized with-

- out first giving the affected party adequate and meaningful

hearing. Fuentes v. Shevin, 407 U.S. 67 (1972).

The decision to seize property rests solely, as in this

case, with the Police Superintendent, and it is only after

the seizure has taken place that the owner or person in

charge thereof may file a complaint and have his day in

court.

We rely not only on the Fuentes v. Shevin decision, but

on‘a number of other Supreme Court and three-judge dis-

trict court cases which have struck down state statutes per-

mitting prehearing or prejudgment seizures and depriva-

tions of property or property rights. Sniadach v. Family

Finance Corp. of Bay View, 395 U.S. 337 (1969); Lynch v.

Household Finance Corp., 405 U.S. 538 (1972); Bell v.

Burson, 402 U.S. 535 (1971); Wisconsin v. Constantineau,

400 U.S. 433, 437 (1971); Goldberg v. Kelly, 397 U.S. 254

(1970); Schneider v. Margossian, 349 F. Supp. 741 (D.

Mass. 1972) ; Dorsey v. Community Stores Corporation, 346

F. Supp. 103 (E.D. Wisc. 1972) ; MacQueen v. Lambert, 348

F. Supp. 1334 (M.D. Fla. 1972) ; Holt v. Brown, 336 F. Supp.

2 (W. D. Ky. 1971) ; Klim v. Jones, 315 F. Supp. 109 (N.D.

Cal. 1970). In this case, the only argument advanced in

28

defense of the prehearing seizure is the “need” for efficient

control of narcotics. However, we have not been shown in

what way prehearing confiscations are going to aid or make

more efficient the enforcement of criminal laws. It must be

pointed out that in this case the seizure of the yacht took

place on July 11, 1972, while the act for which it was for-

feited took place on May 6, 1972. Under such circumstances,

there is no justification for not including in the statute a

. provision that would require a hearing prior to seizure. As

stated in Fuentes v. Shevin, supra, efficiency and economy

do not justify obliterating procedural due process:

“The establishment of prompt efficacious procedures

to achieve legitimate stated ends is a proper state in-

terest worthy of cognizance in constitutional adjudi-

cation, But the Constitution recognizes higher values

than speed and efficiency. Indeed one might fairly say

of the Bill of Rights in general, and the Due Process

Clause in particular; that they were designed to protect

the fragile values of vulnerable citizenry from the over-

bearing concern for efficiency and efficacy which may

characterize praiseworthy government officials no less,

and perhaps more, than mediocre ones.” Stanley v.

Illinois, 405 U.S. 645,656 (1972).*®

Forfeiture is not one of those “extraordinary situations”

justifying postponing a hearing. Boddie v. Connecticut,

401 U.S. 371,379 (1971); nor nas the Commonwealth of

Puerto Rico claimed it to be such. Outright seizures without

opportunity for a prior hearing have been allowed only

in a few limited cases. The Court, in Fuentes v. Shevin, said.

«* * * Thus, the Court has allowed summary seizures

of property to collect the internal revenue of the United

States, to meet the needs of a national war effort, to

protect against the economie disaster of a bank failure

and to protect the public from misbranded drugs and

contaminated foods.”?*

18 405 U.S., at page 90,91, Footnote 22.

19 407 U.S. at page 91,92, and cases cited in footnotes 24, 25, 26,

27 and 28.

29

Finally, the Commonwealth of Puerto Rico has asked

this Court that, if we find the plantiff’s constitutional rights

have been violated, we declare this forfeiture null and

void, but sustain the constitutional validity of the statutes.

Were this Court faced with a question of a government

official’s action in applying the statute, we might be in a

position of granting such remedy. But the officials involved

herein have acted strictly in accordance with the statutes

challenged as they have been construed and, therefore,

we cannot escape meeting our judicial burden. The Com-

monwealth of Puerto Rico in this case was fully aware

of the remedy requested and had the option of returning

the property confiscated or its appraisal value, thereby

taking the matter out of our hands.

For the foregoing reasons, it is hereby declared that

Section 2512(a)(4) of Title 24, and Section 1722(a) of

Title 34 of the Laws of Puerto Rico are unconstitutional,

and an injunction will issue permanently restraining defen-

dants and their successors from enforcing the foregoing

provisions insofar as they deny the owner or person in

charge of property an opportunity for a hearing, due to

the lack of notice, before the seizure and forfeiture of its

property and, insofar as a penalty is imposed upon innocent

parties. .

ee ee ee CS OOPS SURE

30

At the close of its argument, plaintiff pointed out that

at present the return of the seized property might not

be an adequate remedy, due to the probable deterioration of

the vessel. We need not provide a specific remedy, inasmuch

as Section 1722(d) of Title 34 provides adequate relief.

Plaintiff did stipulate that the appraisal of the property

was fair and reasonable and, therefore, is entitled to be

paid the amount of the apraisal, plus interest thereon at

the rate of 6% per annum, computed from the date of the

seizure.

IT IS SO ORDERED.

San Juan, Puerto Rico, March 28, 1973.

s/ FRANK M. COFFIN

Frank M. Corrin, Chief Judge

U.S. Court of Appeals for the

First Circuit, Presiding

s/ HIRAM R. CANCIO,

Hiram R. Cancro, Chief Judge

U. S. District Court for the

District of Puerto Rico

s/ JOSE V. TOLEDO

Joss V. ToLepo, United States

District Judge for the District

of Puerto Rico

LEE G ELIT ENE BNE EL GEE ELD DERE A REPO ART BOLE RMIT Ip STE ION

31

In THE

United States Bistrict Comt

For Tue District or Pverto Rico

Crvim No. 1018-72

Pearson Yacut Leastnc Company, Division of

Grumman Allied Industries, Inc.

Plaintiff,

Vv.

Astot Caero-To.epo, as Superintendent of Police of

the Commonwealth of Puerto Rico, and Epcar R. Bauzao,

as Administrator of the General Services Administration

of the Commonwealth of Puerto Rico

Defendants.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

TO THE HONORABLE COURT:

Notice is hereby given that the defendants above named,

hereby appeal to the Supreme Court of the United States

from the final order entered in this action on 29 March 1973.

32

This appeal is taken pursuant to 28 U.S.C. 1253.

San Juan, Puerto Rico, this 7th day of May, 1973.

RY Oh Thy phi) Sarat alm

Francisco Dr Jesus-Scnuck

Attorney General for the

Commonwealth of Puerto Rico

J. F. Ropriguez-Rivera

Acting Solicitor General

Ruts Tentort De Lesron-

VELAZQUEZ

Assistant Solicitor General

Attorneys for Defendants

P. O. Box 192

San Juan, Puerto Rico 00902

WOES SEN OT MNP NA PSSST IR EELS MRI TY: SARS, MAND) 00,4

bey CLAD ORY wt yee

33

APPENDIX B

STATUTES INVOLVED

Section 512 of the Controlled Substances Act of Puerto

Rico, 24 L.P.R.A. § 2512 (Supp. 1972) provides in per-

tinent part:

(a) The following shall be subject to forfeiture to

the Commonwealth of Puerto Rico:

(4) All conveyances, including aircraft, vehicles,

mount or vessels, which are used, or are intended for

use, to transport, or in any manner to facilitate the

transportation, sale, receipt, possession, or concealment

of property described in clauses (1) and (2) of this

subsection ;

(b) <Any property subject to forfeiture under clause

(4) of subsection (a) of this section shall be seized by

process issued pursuant to Act No. 39, of June 4, 1960,

as amended, know as the Uniform Vehicle, Mount

Vessel and Plane Seizure Act sections 1721 and 1722

of Title 34.

Section 2 of the Uniform Vehicle, Mount, Vessel and

Plane Seizure Act, 34 L.P.R.A. § 1722, provides in per-

tinent part:

LSE CTRL E EON TANS 2

5

Whenever any vehicle, mount, or other vessel or

plane is seized pursuant to the provisions of Act No. 6

of June 30, 1936, Act No. 220 of May 15, 1948, Act No.

17 of January 19, 1951, Act No. 48 of June 18, 1959

and/or Act No. 2 of January 20, 1956, such seizure shall

be conducted as follows:

(a) The proceedings shall be begun by the seizure |

of the property by the Secretary of Justice, the Secre-

tary of the Treasury or the Police Superintendent,

through their delegates, policemen or other peace offi-

cers. The officer under whose authority the action is

taken shall serve notice on the owner of the property

seized or the person in charge thereof or any person

LP EE OO DNATA. AL SEEN CMLL CENT LT OS it SOL TR GE Sh RN UG

34 ©

having any known right or interested therein, of the

seizure and of the properties so seized, said notice to

be served in an authentic manner, within ten (10) days

following such seizure and such notice shall be under-

stood to have been served upon the mailing thereof with

return receipt requested. The owners, persons in

charge, and other persons having a known interest in

the property so seized may challenge the confiscation

within the fifteen (15) days following the service of the

notice on them, through a complaint against the officer

under whose authority the confiscation has been made,

on whom notice shall be served, and which complaint

shall be filed in the Part of the Superior Court cor-

responding to the place where the seizure was made and

shall be heard without subjection to docket. All ques-

tions that may arise shall be decided and all other

proceedings shall be conducted as in an ordinary civil

action, Against the judgment entered no remedy shall

lie other than a certiorari: before the Supreme Court,

limited to issues of law. The filing of such complaint

within the period herein established shall be considered —

a jurisdictional prerequisite for the availing of the-

action herein authorized.

(b) Every vehicle, mount, or any vessel or plane

so seized shall be appraised as soon as taken possession

of by the officer under whose authority the seizure

took place, or by his delegate, with the exception of

motor vehicles, which shall be placed under the custody

of the Office of Transportation of the Commonwealth of

Puerto Rico, which shall appraise same immediately

upon receipt thereof.

In the event of a judicial challenge of the seizure, the

court shall, upon request of the plaintiff and after

hearing the parties, determine the reasonableness of

the appraisal as an incident of the challenge.

Within ten (10) days after the filing of the challenge,

the plaintiff shall have the right to give bond in favor

of the Commonwealth of Puerto Rico before the per-

tinent court’s clerk to the satisfaction of the court, for

the amount of the assessed value of the seized property,

SOLER ME CMR LOL P NONE EY RRR Oa He RD lis tiated nccentaniinesedere utc

35

which bond may be in legal tender, by certified check,

° hypothecary debentures, or by insurance companies.

Upon the acceptance of the bond, the court shall direct

that the property be returned to the owner thereof. In

such case, the provisions of the following paragraphs

(c), (d) and (e) shall not apply.

When bond is accepted the subsequent substitution

of the seized property in lieu of the bond shall not

be permitted, said bond to answer for the seizure if the

lawfulness of the latter is wpheld, and the court shall

provide in the resolution issued to that effect, for the

summary forfeiture execution of said bond by the clerk

of the court and for the covering of such bond into the

general funds of the Government of Puerto Rico in

case it may be in legal tender or by certified check;

the hypothecary debentures or debentures of insurance

companies shall be transmitted by the pertinent clerk |

of the court to the Secretary of Justice for execution.

(c) After fifteen (15) days have elapsed since ser-

vice of notice of the seizure without the person or

persons with interest in the property seized have filed

the corresponding challenge, or after twenty-fiye (25)

days have elapsed since service of notice of the seizure

without the court’s having directed that the seized prop-

erty be returned on account of the bond to that effect

having been given, the officer under whose authority

the seizure took place, the delegate thereof, or the

Office of Transportation, as the case may be, may pro-

vide for the sale at auction of the seized property,

or may set the same aside for official use of the Gov-

ernment of Puerto Rico. In case the seized property

cannot be sold at auction or set aside for official use

of the Government, the property may be destroyed by

the officer in charge, setting forth in a minute which

he shall draw up for the purpose, the description of

the property, the reasons for its destruction and the

date and place where it is destroyed, and he shall serve

notice with a copy thereof on the Secretary of Justice.

(d) In case the vehicle, mount, or vessel or plane

ee Re ee ee ot tates ane ae be ae

— ad at a hab

Pmt BaD See ete ee ie en ene On

36

is sold at auction, the proceeds from the sale shall be

covered into the general fund of the Government of

Puerto Rico, after deducting and reimbursing expenses

incurred.

(e) If the seizure is judicially challenged and the

court declares same illegal, the Secretary of the Trea-

sury of Puerto Rico shall, upon presentation of a cer-

: tified copy of the final decision or judgment of the

: court, pay to the challenger the amount of the appraisal

or the proceeds from the public auction sale of such

property, whichever sum is the highest, plus interest

thereon at the rate of 6% per annum, counting from the

date of the seizure.

Sections 1, 3, and 4 of the Act of June 14, 1965, 23

L.P.R.A. §451, 451b, 451c, provide in pertinent part:

ichiitaeas “Sie gS dik Base teaeas

§451. As used in this chapter, unless the context

clearly implies a different meaning:

RAR GF OR: Mid RM 8 Fi

(e) “Owner” means a person other than a lien

holder, having the property in or title to a motor-

boat. The term includes a person entitled to the use

or possession of a motorboat subject to an interest in

another person, reserved or created by agreement and

securing payment or performance of an obligation.

§451b. Ewery motorboat on the waters of the Com-

| monwealth shall be numbered. No person shall operate

: or give permission for the operation of any motorboat

on such waters unless the motorboat is numbered

in accordance with this chapter, or in accordance with

: applicable federal law, or in accordance with a federally

approved numbering system of another state, and

unless (1) the certificate of number awarded to such

motorboat is in full force and effect, and (2) the

identifying number set forth in the certificate of number

is displayed on each side of the bow of such motor boat.

§451c. (a) The owner of each motorboat requiring

numbering by this Commonwealth shall file an appli-

cation for number with the Authority.

ye rR CH

37

APPENDIX C

In THE f

United States District Comet

For Tue District or Puerto Rico

Crviz No. 1018-72

Pearson Yacut Leastne Company, Division of

Grumman Allied Industries, Ine.

Plaintiff,

Vv.

Luis Torres Massa, as Superintendent of Police of the

Commonwealth of Puerto Rico, and ManvaLt Martinez

Suarez, as Chief of the Office of Transportation of the Com-

monwealth of Puerto Rico,

Defendant.

STIPULATIONS

TO: THE HONORABLE COURT:

COME NOW the parties through their undersigned at-

torneys and for the purpose of simplifying factual questions

and to avoid the necessity of an evidentiary hearing, do

hereby enter into the following stipulations:

1. Plaintiff is a New York corporation engaged in the

chartering and/or leasing of vessels in the United States

of America, including the chartering and leasing of vessels

for use in the navigable waters of the Commonwealth of

Puerto Rico.

2. The defendant, Luis Torres Massa, is the Superinten-

dent of the Police of the Commonwealth of Puerto Rico and

Sa dh LOPE LG LOS GAT A OE

Si Naan Pater s PIAA eget fo!

SAI a nc ee aT ae eT eRe a ee

. et

38

as such is directly in charge of enforcing the criminal laws

of the Commonwealth of Puerto Rico including the provi-

sions of Title 24, §§ 2101, The Controlled Substances Act of

Puerto Rico, June 23, 1971 (24 L.P.R.A. §§ 2101-2607).

3. The defendant, Manuel Martineg. Suarez, is the Chief

of the Office of Transportation of the Commonwealth of

Puerto Rico.

4. That pursuant to §2512(a), (4) and (b), the defen-

dant, Luis Torres Massa, was empowered to confiscate and

subject to forfeiture to the Commonwealth of Puerto Rico

“all conveyances, including aircraft, vehicles, and mount or

vessels which are used or are intended for use, to transport,

or in any manner to facilitate the transportation, sale,

receipt, possession, or concealment of all controlled sub-

stances which have been manufactured, distributed, dis-

pensed, or acquired in violation of the Act”.

5. Defendant, Luis Torres Massa, is further empowered

to seize any property subject to forfeiture under the provi-

sions of 24 L.P.R.A. § 2512(a)(4) by process issued pur-

suant to Act of June 4, 1960, as amended, know as the Uni-

form Vehicle, Mount, Vessel and Plane Seizure Act, §§ 1721

and 1722 of Title 34.

6. Pursuant to the powers conferred by 24 L.P.R.A.

§ 2512(a)(4) and (b), defendant, Luis Torres Massa,

through his delegates, policemen and/or other agents, on

July 11th, 1972 seized the following property:

1 — Pearson 300, Hull No. 127 with the following equip-

ment:

Bow Rail; Lifelines; 2 Boardiug Gates; Stern Rail;

Genoa Gear; Sea Hood; H&C Water Pressure System ;

- Shower; Edson Wheel w/compass; Edson Brake; in-

terior Handrails; Ex. Water Tank; 2 additional Open-

ing Ports; Two-Tone Deck; Electric Bilge Pump; Fab-

39

ric Cushions; Carpets; Curtains; Diesel Engine; ©

Winches; Stove; Roller Furling; Roller Reefing; Salt

Water Pump; Cockpit Cushions; Tachometer and 2

Dorado Ventilators; and Mainsail; Jib and Sail Cover.

Lad

7. At the time of the seizure of the aforesaid property by

the defendant, Luis Torres Massa, the same was in the

possession of Donovan Olson and Loretta Olson pursuant to

a bareboat charter with plaintiff, copy of which is annexed

hereto as “Exhibit A”.

8. Pursuant to the provisions of the Uniform Vehicle,

Mount, Vessel and Plane Seizure Act, 34 L.P.R.A. §1722(a),

the defendant, Luis Torres Massa, through his officers,

agents and/or employees served notice of the seizure upon

the lessee of the aforesaid property by mailing to him

copy thereof at his known address. The notice of seizure

was sent to Donovan Olson, who registered with the Ports

Authority of the Commonwealth of Puerto Rico and was

given a number to operate the vessel in question, as required

by the provisions of Title 23 §¢ 451, sub-paragraphs (a),

(B) and (ce).

9. That at the time of the seizure and at the time of ser-

vice of notice of seizure, the lawful owner of the seized

property was Pearson Yacht Leasing Company, a Division

of Grumman Allied Industries Inc.

10. That the plaintiff herein has never been notified of

the seizure. The plaintiff has never registered or requested

a number at the Division of Marine Operations of the Mari-

time Department of the Ports Authority in the manner

and form provided by §451, sub-paragraphs (a) (b) and

(c) of Title 23.

11. The property seized is being detained, upon infor-

mation and belief, at a Police Marine, in Boqueron, Puerto

Rico, under the physical custody and control of agents,

FRM BO NSD

GE ALPE Picci vi?

Silica Lae dol! BAC scab A

40

policemen and/or employees of defendant Luis Torres

Massa.

12. Pursuant to the provisions of 34 L.P.R.A. §1722(b)

the property seized by defendant Luis Torres Massa, has

been placed under the legal custody of defendant Manuel

Martinez Suarez, who is the Chief of the Office of Trans-

portation of the Commonwealth of Puerto Rico.

13. Upon information and belief, defendant, Manuel

Maritnez Suarez, pursuant to the powers conferred upon

him by Statute 34 L.P.R.A. §1722(b) has appraised the

property in question in the sum of $19,800.00 and intends to

hold the same as legal owner thereof.

14. The defendants, Luis Torres Massa, and Manuel

Maritnez Suarez, have preceeded under the authority con-

ferred by Act 4 of June 23, 1971 (24 L.P.R.A. §2512(a),

(4)(b) and Act No. 39 of June 4, 1960, (34 L.P.R.A. $1722).

15. The plaintiff had no knowledge that its property was

being used in connection with or in violation of the Con-

trolled Substance Act of the Commonwealth of Puerto Rico.

Defendants concede that plaintiff corporation, its agents,

employees and/or representatives were in no way what-

soever involved in the criminal enterprise carried on by

lessee, Donovan Olson. (Lessee was accused of using the

plaintiff’s property on May 6, 1972 to convey, transport,

carry and transfer a narcotic drug known as “marihuana”,

within the ward of La Parguera, in violation of law).

tr eet ee ee ee mec RS TR

41

The foregoing facts and issues are stipulated by and

between the parties, this .... day of December, 1972, at

San Juan, Puerto Rico.

Wa.uace GonzaLeEz OLIVER

Attorney General

Feurre B. Montatvo

Assistant Attorney General ~

NELLIE Ortiz TorrEs

Director, General Litigation

Division

Wii A. PowER

Attorney, Department of

Justice

Attorneys for Defendants

TY 5 sssvstaseasecaseseunncstunssnrtsnsasbesvasesoeies

NacuMan, Fvpstein, GELPI &

ANTONETTI .

Attorneys for Plaintiff

w

BY © eseisic

ai pO Mab AB BN LAE Tid aR ITI be ARLEN cB PAN LSA AR Do tea

an a

[Appendix C. Continued]

PEARSON YACHT LEASING COMPANY

Division of Grumman Allied Industries, Inc.

Lease Contract No. 405

LEASE AGREEMENT, hereinafter called the “Lease”,

made and entered into in Garden City, Nassau County, State

of New York, this ..........0.. day of March 1971, by and

between Pearson Yacht Leasing Company, Division of

Grumman Allied Industries, Inc., a corporation incorpo-

rated under the laws of the State of New York, and having

its principal office at 600 Old Country Road, Garden City,

N. Y., hereinafter called the “Lessor”, and Donovan &

Loretta Olson, hereinafter called the “Lessee”.

WITNESSETH:

1. Lessor hereby leases to Lessee, and Lessee hereby

hires from Lessor, the vessel and accessories, hereinafter

called “Equipment”, described in Schedule “A”, hereto an-

nexed and made a part hereof, upon the terms and condi-

tions contained in this agreement.

2. This Lease is for the term of 60 months from

the date of delivery of the Equipment described in the

aforementioned Schedule “A”, during which term Lessee

will pay Lessor as rent for the use of the Equipment in

accordance with this agreement and the schedule covered

by Schedule “B”, hereto annexed and made a part hereof.

Payment of said rent shall commence as of the date of

‘ the Lease and shall continue on the same date each and

every month thereafter for the term of this Lease. Late

payments of rentals shall be charged 142% monthly on

deliquent amounts.

Tee - Le AAA BFR RA IIL SEIN, 7 }

43

3. (a) Lessee shall furnish at its own cost and expense

gasoline or other fuel, lubricants, grease, anti-freeze solu-

tion, and replacement parts and supplies appropriate forthe §&

use and operation of the Equipment leased hereunder, and fF

shall service, repair and maintain all said Equipment in :

good condition, but Lessee shall not be responsible for

normal wear, tear and depreciation. Lessee is to have the ©

benefit of any manufacturer’s warranty as to each Equip-

ment and all accessories thereon.

(b) Lessee shall permit. Lessor to inspect any and all

said Equipment upon Lessee’s premises or elsewhere at any ~

reasonable time, and cooperate fully to facilitate such in- ©

spections.

(c) Lessee shall pay any license fees, tolls, taxes levied |

by federal, state or municipal governments or autfiorities

against said Equipment and also all costs of any inspection

required by the state in which Lessee keeps and operates

such Equipment.

4. (a) Prior to the delivery of said Equipment, Lessee

shall at its own expense furnish the Lessor with insurance

policies with loss payable clause to Lessor placed with

insurance company satisfactory to Lessor with premiums

paid, insuring Lessor against damage, loss or destruction

of the Equipment under this lease sustained in any manner

whatsoever in an amount of not less than the replacement

value of said Equipment.

Lessee shall also obtain and furnish Lessor public liability

insurance policies with insurance company satisfactory to

Lessor with premiums paid, insuring Lessor against dam-

ages or claims for personal injuries arising in any manner

out of the operation or use of said Equipment. Said policy

or policies to contain limits of $200,000 to $500,000 and

against damages for claims for property damages in an

amount not less than Fifty Thousand Dollars ($50,000).

PB come eetnn ers cece IE

TRAE is eat ot a A ON et POR or los

NARNIA a ai,

4

4

>

z

ed

|

a

:

3

2

‘

44

In case of failure of the Lessee to procure and maintain

said insurance and pay the premiums therefor, in addition

to any and all'other remedies to the Lessor as contained in

this Lease, Lessor may effect such insurance, in which event

the cost thereof shall be payable by the Lessee as additional

rent with the next month’s installment of rent.

(b) Lessee hereby assumes all liability for, and agrees

to save Lessor harmless against all loss imposed by law

resulting from the use or operation, during the term of the

Lease hereunder, of Equipment leased hereunder and

arising out of death or bodily injury. to Lessee or any other

or different person or persons and/or damage to property

belonging to Lessee or to any other or different person or

persons. Lessee agrees to defend at its own expense all

claims or suits for damages for the causes hereinbefore set

forth and to pay all costs hereof.

(c) The damage, destruction, loss, disability or for-

feiture of said Equipment shall not discharge or diminish

the obligation of Lessee to pay rent as provided in this

agreement, except as may be otherwise mentioned herein.

(d) In the event the leased Equipment is damaged, its

repair shall be the responsibility and obligation of the

Lessee. In every such instance, Lessor agrees to assign to

Lessee any and all rights Lessor may have under insurance

policies owned or controlled by Lessor with respect to such

damage, as well as any rights Lessor may have to be reim-

bursed for such damage pursuant to insurance coverage

carried by others, provided that the Lessee shall not then

be in default of any of the terms and conditions of the lease

on its part to be performed.

(e) In the event the leased Equipment is destroyed,

stolen,-or damaged to such extent that Lessee finds it un-

desirable to continue its use, all of the Lessor’s right, title

and interest in the Equipment, together with any and all

45

rights it may have with respect to such Equipment under

insurance carried by others, shall be assigned to Lessee or

its designee upon payment by Lessee of the remaining un-

paid rental payments as to such Equipment up to the end

of the contract term (proportionately adjusted to reflect the

deduction in Lessor’s financial or carrying costs).

d. -Lessee agrees that Lessor may assign all right, title

and interest of Lessor in and to such lease agreements, all

monies due and to become due thereon, and the Equipment

leased hereby, and Lessee agrees, if requested by such

assignee, to pay direct to such assignee all monies due and

to become due by it on such lease agreements. Lessee may,

upon written consent of Lessor, assign its interest in this

agreement as to the Equipment described in Schedule “A”.

All benefits, rights and liabilities then existing shall flow to

and be assumed by the assignee, but without relieving the

assignor of any liability hereunder.

6. Lessee may use the Equipment leased hereunder at

any and all times for any and all legal purposes. Lessor

shall not use or suffer or permit any Equipment to be

used for any unlawful purpose or for the transportation of

any property or material deemed extra hazardous, explosive

or inflammable.

7. Incase of the Lessee’s failure to pay the rentals pro-

vided for above, or to fulfill or perform the conditions im-

posed upon the Lessee by this lease, the Lessor shall give

written notice to the Lessee of such default. If the condition

is not corrected within fifteen (15) days after date of written

notice, the Lessor shall have the right, at its option, to

declare all unpaid rentals forthwith to be due and payable

and to terminate this agreement and Lessor shall have the

right:

(a) To enter any premises where any Equipment may

be, with or without the assistance of any person or persons,

er ee SF:

eects race nie eee ee es

PF bs

Pre ae eT ’ i 0 at . .

ibe bis Re Akg haeeHELe Bb aE A Ne cna ratte

Wat

EP UR Rea tAY Sy EEN Ree

46

and to take, retake and remove the same, including all sub-

stituted parts and accessories, without being liable to any

suit, action, defense, or other proceedings by the Lessee,

and to hold, use, sell, lease or otherwise dispose of any of

said Equipment or to keep said Equipment idle, severally

or entirely as the Lessor may elect, such election by the

Lessor to have no effect upon Lessee’s liability under this

agreement, or Lessor’s rights hereunder and, upon such

possession or repossession, all Lessee’s rights herein and

thereto, shall cease and determine.

(b) If the Lessee, or its agents, shall fail or refuse to

deliver, or shall convert or destroy any of the lease property,

the Lessor shall have the right, as an alternative in place

of subdivision (a) hereof, and in addition to such other

remedies as are available to it hereunder, to hold the Lessee

and its said agents liable for the value of the said withheld

or destroyed property.

(c) If any action shall be brought by either party to this

lease for the interpretation thereof, for the recovery of

damages resulting from the breach of any term thereof, the

prevailing party to such action shall be entitled to reasona-

ble attorney’s fees incurred thereby, and said fees shall be

included in the judgment awarded in such action to the pre-

vailing party. Lessee does hereby further covenant and

agree that all rights and remedies hereunder are cumulative

and not exclusive and that a waiver by Lessor of any breach

by Lessee of the terms, covenants and conditions hereof,

shall not constitute a waiver of future breaches or defaults.

8. If before the commencement of the term of this agree-

ment, or at any time during the term, Lessee shall make an

assignment for the benefit of creditors, or shall become in-

solvent, or if a receiver or trustee of Lessee’s property shall

be appointed, or if the Lessee (where it is a corporation)

shall terminate its existence or take any steps to terminate

PEMA PKI SE wk Et AIL

47

°

a ——

its existence, or if a petition is filed by or against Lessee ~

pursuant to any of the provisions of the United States

Bankruptcy Act, as amended, for the purpose of effecting ©

an arrangement or composition with Lessee’s creditors, then ©

and in each and every such case, this agreement shall

terminate forthwith, without any further act or notice by

the Lessor, and the Lessor shall immediately have any and

all of the rights set forth herein including, but not limited

to, paragraphs designated “7” and “12” hereof.

=e

9. The Equipment shall be based at the home port of

Lessee, as.of contract date, and shall not be moved toanew =|

permanent location without the written consent of the ~

Lessor. Lessee may sublet Equipment to a third party only

with the written approval ‘of the Lessor.

10. All said Equipment shall remain personal property ~

of the Lessor and the title thereto shall remain in the Lessor

exclusively. Lessee shall keep the Equipment free from any —

and all liens and encumbrances. Upon termination of the =

Lease the Equipment shall be returned to Lessor, at Lessee’s

sole expense and in the same condition as when received

by Lessee, less reasonable wear and tear resulting from

proper use thereof. All replacement parts, additions and

accessories incorporated in or affixed to the Equipment after

the commencement of the Lease shall become the property

of the Lessor.

11. Lessor agrees together with Lessee that Lessor is

the lawful owner of said Equipment free from all encum-

brances, and that, conditioned upon Lessee’s performing

the provisions hereof, Lessee shall use and maintain the

Equipment in a rightful manner during said term without

interference. The Lessor or any assignee of Lessor is au-

thorized to file any Financial Statements without the signa-

ture of the Lessee. ,

12. Upon termination of this agreement, as provided by

Page ee eee Pe 4

paragraphs numbered “7” and “8”, or otherwise, the Lessor,

in addition to any or different rights in this agreement pro-

vided, shall be entitled to all gains and/or profits prevented

and damages sustained, liquidated herein for all purposes

including claims and suits against the Lessee’s assets in

bankruptcy, reorganization or arrangement proceedings, or

pursuant to other provisions of the United States Bank-

ruptcy Act, or in any assignment for the benefit of creditors

proceedings as follows:

(a) All sums due and unpaid at the time agreement is

terminated.

(b) The total of sums which would have become due

under the normal operation of this agreement from the date

of such termination to the date it would have normally

expired had it not been earlier terminated.

In determining said liquidated damages, the parties have

made due allowances for the Lessor’s investment in buying

and/or reconditioning the leased Equipment, the uncer-

tainty of leasing them to others, cost to Lessor for the

period during which they may remain idle, or if sold, the un-

certainty of the sales price and the Lessor’s loss in selling

said Equipment, commissions and legal expense to be paid,

etc.

13. Nothing contained in this agreement shall affect the

Lessor’s right to receive payment from a Trustee, Receiver,

Debtor or other representative of the Lessee, in bankruptcy,

reorganization or arrangement proceedings, or otherwise,

or from an Assignee for the Benefit of Creditors, for the use

of the Equipment subsequent to the termination of this

agreement; provided, however, that the payment received

therefrom shall be offset against the liquidated damages

provided for in paragraph “12” above.

14. This agreement shall extend to and be binding upon

49

the successors and assigns of the parties hereto.

15. All notices to be given to Lessor shall be given by

depositing the same in the United States mail, registered

or certified, postage prepaid and addressed to Lessor as

follows: Pearson Yacht Leasing Company, 600 Old Country

Road, Garden City, N. Y. 11530.

All notices to be given to Lessee shall be given by de-

positing the same in the United States mail, registered or

certified, postage prepaid and addressed to Lessee as fol-

lows:

Mr. & Mrs. Donovan Olson

Blvd Monroig AX 36 Levittown,

Catano, Puerto Rico

16. The Lessor is authorized to file any required financ-

ing statement without the signature of the debtor.

17. This agreement, with Schedule “A” and Schedule

“B” affixed hereto and made part hereof, constitute the

entire agreement and understanding of the Lessor and

Lessee, and shall not be amended or altered in any way

unless such amendment or alteration be endorsed hereon

in writing and signed by the executive officers of both

parties or, if the Lessee is not a Corporation, by the Lessee

in person.

50

IN WITNESS WHEREOF, the parties hereto have

caused this agreement to be duly executed, in triplicate, as

of the day and year first above written.

LESSOR: PEARSON YACHT

LEASING COMPANY

By Rosert F. Low

Director

LESSEE: DONOVAN &

LORETTA OLSON

By Donovan OLson

Donovan Olson Title

By Loretta OLson

Loretta Olson

Schedule “A”

This Schedule “A” is part of and subject to the Lease

Agreement No. 405, between Pearson Yacht Leasing Com-

pany, “Lessor”, and Donovan & Loretta Olson, “Lessee”,

dated March 15, 1971.

51

DESCRIPTION

1 — Pearson 300 Hull No. 127 with the following equipment:

BOW Rail; Lifelines; 2 Boarding Gates; Stern Rail;

Genoa Gear; Sea Hood; H & C Water Pressure Sys-

tem; Shower; Edson Wheel w/compass; Edson Brake;

Interior Handrails; Ex. Water Tank; 2 Add’l Opening

Ports; Two-Tone Deck; Electric Bilge Pump; Fabric

Cushions ; Carpets; Curtains ; Diesel Engine; Winches;

Stove; Roller Furling; Roller Reefing; Salt Water

Pump; Cockpit Cushions; Tachometer and 2 Dorado

Ventilators; and Mainsaid; Jib and Sail Cover.

LESSOR: PEARSON YACHT

LEASING COMPANY

By Roserr F. Low

Director

LESSEE: DONOVAN &

LORETTA OLSON

By Donovan OLson

Donovan Olson Title

By Lorerra OLson

Loretta Olson

Executed in Triplicate this

15th day of March, 1971

PASTS Mae

52

Schedule “B”

This Schedule “B” is part of and subject to the Lease

Agreement No. 405, between Pearson Yacht Leasing Com-

pany, “Lessor”, and Donovan & Loretta Olson, “Lessee”,

dated March 15, 1971.

Rental Charges

Price Basi Monthly

Based on Unit Price of $23,983.00 $474.66*

Less: Down Payment 2,887.00

Amount Financed $21,096.00

*NOTE: Late payment of rentals are charged 144%

monthly on delinquent amounts.

Annual Percentage Rate: 12.50%

LESSOR: PEARSON YACHT

LEASING COMPANY

By Rosert F. Low

Director

LESSEE: DONOVAN &

LORETTA OLSON

By Donovan OLson

Donovan Olson Title

By Lorerra OLson

Loretta Olson

Executed in Triplicate this

15th day of March, 1971

53

Addendum No. 1

This Addendum No. 1 is part of and subject to the Lease

Agreement No. 405, between Pearson Yacht Leasing Com-

pany, “Lessor”, and Donovan & Loretta Olson, “Lessee”,

dated March 15, 1971.

Lessee is hereby given the right and privilege, at its op-

tion, to purchase vehicles described in Schedule “A” of this

lease, at the respective option prices for the periods of time

indicated below, provided that all rents theretofore due and

payable have been paid in full.

Option Option Price

Period Percentage Depreciation — Option Period —_—Per Unit

End of Ist year 0... $18,092.24

End of 2nd year ou... 14,456.72

End of 3rd year ............cccceee 10,239.44

End of 4th year 0... 5,440.40

End of 5th year .........cceceee 1.00

The option to purchase shall be exercisable by Lessee by

giving Lessor not less than thirty (30) days notice in writ-

ing prior to the expiration of the 60 months term. Lessor

covenants and agrees that upon exercise of the option

Lessor shall duly execute and deliver to the Lessee all docu-

ments necessary and proper to effect transfer of ownership

of said vehicles to Lessee, free and clear of all encumbrances

and liens (other than encumbrances or liens suffered or per-

mitted by Lessee to become effective thereon) upon payment

by the Lessee in cash or certified check of the full balance

of said option price and thereupon this lease shall terminate

LOS nT Oe Fe eee al

si heats

iii wh tebe at he

54

and no further rents shall become due thereunder with refer-

ence to the vehicles leased by the Lessee.

LESSOR:

PEARSON YACHT

LEASING COMPANY

By Robert F. Low

Director

LESSEE:

DONOVAN &

LORETTA OLSON

By Donovan OLson

Donovan Olson Title

By Loretta Otson

Loretta Olson

Executed in Triplicate this

15th day of March, 1971

NDS! te NESE GES PEERS ON PER DNR

WEF aa OR at %

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.