decided: January 9, 1948.
THE PANAGHIA KATHARIOTISA.
Before MARIS, McLAUGHLIN, and KALODNER, Circuit Judges.
The libellant in a possessory suit in admiralty, in which the Steamship Panaghia Kathariotisa has been arrested and is now in the custody of the United States Marshal, appeals from an order of the district court directing that upon the filing of a stipulation in the amount of $125,000 a writ shall issue to restore the steamship to the claimant, Andreas G. Caravias. At the outset we are confronted with a motion by the claimant, appearing specially, to dismiss the appeal upon the ground that the order in question is a non-appealable interlocutory order.
The motion to dismiss must be denied. The result of the order appealed from is to release the steamship from arrest. This in effect terminates the proceeding as against her and puts it out of the power of the district court to give the libellant that possession of the vessel to which he is entitled if he prevails. The Daisy, D.C.Mass., 1886, 29 F. 300. The order thus ends the suit for possessory relief as effectually as if it formally dismissed the libel. The Attualita, 4 Cir., 1916, 238 F. 909; The Pesaro, 1921, 255 U.S. 216, 41 S. Ct. 308, 65 L. Ed. 592.
Upon consideration of the libel and of the affidavits filed by the parties we are satisfied that retention by the court of possession of the vessel, pending the determination of the parties' rights in her, is peculiarly imperative in this case because of its extraordinary circumstances. Accordingly we will reverse the order appealed from and will direct that the libel be set down for hearing and decision on the merits at the earliest convenient time. 2 Benedict on Admiralty, 6th Ed., p. 613.
It will be so ordered.
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