On Motion for Rehearing.
SIBLEY, Circuit judge.As to the points urged in the motion for rehearing, it is our view that the process in foreign attachment is issued to secure an appearance in a libel in personam, and if there is no appearance to sequestrate property against which a decree may be enforced if obtained. It is not like a libel in rem to enforce a maritime lien against the property seized. The property here attached was not in the possession or service of the respondent in the libel in personam, and there is no presumption that it was property of the respondent. There can be no greater “want of equity” than to attach the property of another for the in personam debt of the respondent, and Canal Zone Rule 23 provides á summary remedy to obtain release. The Rule was quoted in one of the grounds of the motion for release. It is true no rule nisi was issued against the libelant to show cause, but the motion was entertained and notice given, and three full hearings had. No one objected to the absence of a rule. We have held the evidence was not such, and the proceeding was not such, as to warrant an adjudication of title to the seized ship, and that there was no- adjudication of its title, but that the district court was warranted in declining to hold the ship further with no evidence whatever produced by the libelant that she was the property of respondent.
We have not held that the libel in per-sonam was wholly between foreigners, and that jurisdiction over it might be for that reason declined. Jurisdiction has not been declined, but retained. We held only that the question of the-organization of the corporation Caribe and its relationship to the corporation Transmaritima, and its liability for the latter’s debts, involved transactions in the Republic of Colombia and under its laws, with the witnesses and evidence located there, and that the supplementary libel in personam against Caribe might be dismissed for that reason.
As to the garnishment of Caribe, which was sustained, it -has been held that a vessel of a respondent is property which may be reached by garnishment if in the possession of a garnishee. The release of the vessel from attachment does not adjudicate any question that may arise about her under the garnishment. Such questions must await the answer of the garnishee, and there is no right to seize property sought to be reached by garnishment sooner; probably not till final decree establishing the in personam liability of the respondent.
We see nothing to be gained by further ■argument, and the motion for rehearing is
Denied.
McCORD, Circuit Judge(dissenting).
I am more than ever convinced that a rehearing should be granted, and that this case should be reversed for a full and fair hearing on the charges contained in the amended libel. Throughout this proceeding, my brothers -have evidently forgotten the admonition of our elders that Admiralty should act as a court of Equity, and that ■fraud, whenever sufficiently charged, is a master-key which has from time immemorial unlocked the doors of justice to every aggrieved citizen in the world. For all its seeming wisdom and learned discourse on the law, the majority opinion again manifests a persistent tendency to by-pass these fundamental concepts of right and justice.
The majority here reiterate their view that the process in foreign attachment was issued merely to secure an appearance in the libel proceeding, and that the vessel ought not to remain under attachment after the respondent Caribe has appeared and answered, claiming the vessel as its own. Apparently they ignore the basic proposition advanced in the libel that the steamship Caribe is in reality the property of Transmaritima; that the vessel was attached as the property of Transmaritima; and that in spite of the attempted and fictitious transfer there is “ * * * no real or actual difference between respondents Compañía Transmaritima Columbiana, S. A., and Compañía Colombiana Del Caribe, S. A., and before this Court of Admiralty of the United States they should be held to *523be, as they are, one and the same. * They further ignore the fact that an in personam decree against Compañía Trans-maritima would be utterly worthless and unenforceable even if obtained, for this respondent since the date of the attachment has claimed no interest in the vessel, and this court has in effect held that it has no such interest. Thus, while the majority concede the libel is sufficient in personam against Compañía Transmaritima, they nevertheless deny libelants the -security of the vessel under court attachment as against the respondent Caribe, this in spite of the fact that both corporations -are -alleged to be identical and the purported transfer wholly fictitious and fraudulent. Moreover, it is without dispute that the steamship Caribe is the only property within the jurisdiction .of the -court against which a decree would be enforceable. I therefore seriously doubt whether these libelants, who claim to have suffered damages from the loss of their cargo running into the hundreds of thousands of dollars, will ever be justly and adequately compensated by the hollow victory of an in per-sonam judgment against Compania Trans-maritima, when that respondent has been 'held to have no interest in the only security under attachment. Evidently, this is just another way of acknowledging the existence of a right without providing for any effective remedy or relief. I have never favored such decisions, which seem to glorify technicalities of form at the expense of the substance of a right. * if»
I must further take issue with the following statement by the -majority:
“The property here attached was not in the possession or -service of the respondent in the libel in personam, and there is no presumption that it was property ¡aof the respondent. There can be no greater 'want of equity’ than to attach the property of another for the in personam debt of the respondent * * (Italics mine.)
Although the majority claim there has been no adjudication of the title to the seized vessel, and admit that the evidence and hearing wa-s not such as would warrant an inquiry into its true ownership, it nevertheless becomes patent from the above holding that their decision is predicated on the theory that the respondent Caribe is the true owner of the vessel, and that the charges as to the fraudulent transfer and identity of the two -corporations are wholly without legal substance and effect. They are actually -deciding the -case on its merits adversely to libelants without according them the hearing to which they are entitled. Weak excuse to justify this persistent refusal to grant libelants a hearing is made on the ground that they have thus far introduced no evidence to show the vessel is actually the property of respondent Trans-maritima. I do not believe it fair or just to thus penalize libelants as derelict in failing to prove their case in the pleadings under the District Court Rules before they have had a reasonable opportunity to do so by testimony at a fair hearing. In the present state of this record, no one can truthfully say whether libelants are entitled to relief against anyone, but surely they are entitled to be -heard. The majority, however, -claim they are not, and I must confess that the more they explain their position, the more I don’t understand it.
To my way of thinking this is an important case, and the issues here decided will touch the business life of our Republic in a vital way. I believe the majority decision is wrong. It seems to me it fails to answer this one vital question in the case: The amended libel charges fraud, and alleges that both these foreign corporations are one and the same; that the respondent Caribe has by means of the fictitious and fraudulent transfer taken over the ship that rides at anchor in the -Canal Zone; that shortly after the loss of libel-ants’ rice cargo and just before the attachment -of this vessel, in an effort to escape liability for their negligence, respondents executed such fraudulent transfer as a subterfuge designed to defraud libelants of their rights. These charges have never been answered, and under the majority decision they will never be answered, for no hearing can be held on them.
I dissent.