Opinion
June 12, 1947.
John Irwin Dugan, of Washington, D.C., for petitioner.
John F.X. McGohey, U.S. Atty., of New York City (Martin J. Norris, of New York City, of counsel), in opposition.
Proceeding in the matter of the petition of Harold Lee Myers for release of seaman's wages deposited with clerk of court.
Case referred to Admiralty Part for trial.
This is a petition for the release of seaman's wages, $177.65, now in the registry of the Court.
The petition is resisted by the United States Attorney appearing on behalf of the Government on the alleged ground that the wages have been forfeited by reason of the petitioner's desertion. The petitioner denies that he deserted and has chosen to proceed by motion, giving notice to the parties interested.
This method of procedure seems to be authorized by 46 U.S.C.A. § 705. In re Zanicki, D.C., 65 F. Supp. 447. The issue is, however, purely one of fact, and cannot properly be determined on affidavits. The case will therefore be referred to the Admiralty Part, where it should be tried in regular course.