at the hearing that respondent had a definite property interest in the oil, though such interest might not be completely exclusive.
It further seems clear that libelant did not make reasonable efforts to locate the respondent in the District before seeking the aid of the Marshal in levying the foreign attachment in question. Indeed, if libelant did not make a bona fide effort to locate the respondent, the foreign attachment would seem invalid. Federazione, supra. Having already dealt with respondent's managing agent at his New Jersey office on a previous shipment, it would have been simple to locate this New Jersey office and this agent in charge again. Furthermore, even if it could not find respondent's telephone listed in the New Jersey telephone book, a call to 'Information' would have produced immediate results. But, instead of doing any or all of these normal things, the respondent never even directed the Marshal to seek personal service. It wrote the Marshal,
'We seek the attachment of certain fuel oils belonging to the said respondent.'
After advising of their location, libelant closed its letter, saying,
'Will you please attach the aforesaid in accordance with the complaint?'
In short, instead of helping the Marshal locate the respondent within the District, libelant indicated to the Marshal that the respondent was not to be found within the District, and that therefore he should 'attach' the fuel oils, upon the assumption that the respondent was not to be found. Not only so, but it appears that the Marshal did not arrive at the locale indicated until after ordinary business hours, whereupon he delivered the papers to a guard acting for a third party. Obviously, so far as locating the respondent personally was concerned, this was a mere gesture carried out on the instructions of the libelant, instead of being a bona fide effort to locate the respondent.
The cases relied on by libelant are not at all helpful to it. In Melmay, an unofficially reported opinion of the United States District Court, Canal Zone, Balboa Division, July 25, 1932, reported in 1933 A.M.C. 1057, an attachment was permitted to stand, although the proctor for the respondent had made it known that he would accept service of process on any suit that would be filed. However, in that case respondent was not doing business in the Canal Zone and the fact that an attorney notifies the Marshal that he would represent respondent in all future cases and be amenable for service in such cases was held not to be sufficient to vacate the attachment. That is not the situation here, though respondent has in fact entered its voluntary appearance in this suit. Respondent here was doing business and could be found in the District. In Swift & Co. Packers v. Compania Colombiana, etc., 1950, 339 U.S. 684, 70 S. Ct. 861, 94 L. Ed. 1206, also relied on by libelant, Mr. Justice Frankfurter describes a foreign attachment as not only being for purposes of service of process but also to be used for security in cases of fraud. In that case, however, the fraud was alleged in an amended libel, and the foreign attachment followed that amended libel. In the instant case the libel does not alleged fraud of any type and the attachment was based solely on the allegation that respondent could not be found in the District. Libelant indicates a desire to amend its libel, if necessary, to include fraud. If and when libelant chooses to do so, and is permitted to do so by the Court, nevertheless, a new foreign attachment would have to be made under that amended libel. The present foreign attachment is governed solely by the libel under which it was served.
That the belated hour of the attachment does not constitute fair dealing is indeed set forth in the Melmay opinion where the Court says, quoting from Benedict on Admiralty, 5th ed., § 290, 6th ed. § 289:
'* * * But there must be fair dealing on the part of the libellant and it will not do to direct the marshal to the defendant's residence or place of business at a time when it is known that he is temporarily absent or to delay the issuing of process for the sole purpose of securing an attachment when it is known the respondent can be served personally. * * *'
This simply reenforces the previously stated point that there must be an essential bona fide attempt to find respondent in the District before the foreign attachment can be levied. The attempt to locate and serve the respondent not being made bona fide, and this improper action having been taken at the express direction of libelant, the foreign attachment levied must be vacated and set aside.
An order may be entered accordingly.