Jacques ELBERT, Plaintiff-Appellee, v. SAILING VESSEL OLD DRIFTER and Fernand A. Robert, Defendants-Appellants

Jacques ELBERT, Plaintiff-Appellee, v. SAILING VESSEL OLD DRIFTER and Fernand A. Robert, Defendants-Appellants. No. 75-1006 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 26, 1975. F. Lawrence Matthews, Miami, Fla., for defendants-appellants. Ronald A. Fitzgerald, G. E. Hartwig, Ft. Lauderdale, Fla., for plaintiff-appel-lee. Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges. Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I. [MAJORITY — PER CURIAM:] PER CURIAM: Plaintiff-Appellee Elbert bought the S/V “Old Drifter” from Defendant-Appellant Robert on time. Claiming default in payments, Robert repossessed the vessel by self-help, along with Elbert’s personal property thereon. Elbert sued in admiralty to recover it, swore out a warrant of arrest in rem, and had the vessel seized by the United States Marshal. Pleading ensued. Elbert took a non-suit. Our district court issued a standard writ of restitution to the Marshal, directing him to return Old Drifter to Robert, from whom he had seized it. The Marshal escorted Robert to the vessel, which was locked to the mooring with Elbert’s chain, stated “It’s your boat,” and decamped. After an hour’s or so performance with a hacksaw, Robert was about to leave with the boat when Elbert appeared with local gendarmerie, who threatened Robert with arrest if he moved the vessel. Elbert has now apparently made away with the vessel, and Robert wishes us to rectify the Marshal’s failure to restore it to his effective control, from which he took it. The district court, viewing the matter as concluded, declined to intervene. We affirm. The Marshal should have effectively restored the boat to Robert, having taken it from him. But it was not his failure to do so which brought about Robert’s present plight, rather Robert’s unwillingness to hold his ground in the face of the menaced arrest. Presumably he would have been as unwilling to do so had the Marshal removed the lock and the locals arrived at that time. It was not the Marshal’s place to champion Robert against the police after Robert had recovered effective control of Old Drifter. This he had done — albeit by self-help — when lastly dispossessed. Had the Marshal then been present he could properly have done nothing. Affirmed.