The departure of a vessel from the wharf of a port and
proceeding a mile and a half therefrom with intent to go to sea is
not a departure from the port within the meaning of the third
section of the Supplementary Embargo Act of January 9, 1808, if the
vessel had not actually gone out of the port before seizure.
A licensed fishing vessel is liable to forfeiture under the
thirty-second section of the Act of the 18 February, 1793, for
enrolling and licensing vessels; for sailing, laden with goods,
with intent to carry them to another place without a license
therefor, although the goods are wholly of domestic growth and
manufacture, and not liable to any duty. But such cargo is not
liable to forfeiture unless it belong to the master, owner, or a
mariner of the vessel
Page 11 U. S. 101
This was an appeal from the sentence of the Circuit Court of the
District of Connecticut which affirmed that of the district court
condemning the sloop
Active and cargo.
The libel stated that the sloop
Active was an American
vessel duly enrolled and licensed for the cod fishery on 5 July,
1808, and had given the bond required to be given by such vessels
under the several acts of Congress laying and enforcing the
embargo, and had a permit to depart and be employed in the cod
fishery.
That in the night between 4 and 5 July, 1808, at the port of New
London, there was secretly and unlawfully laden on board her a
cargo consisting of barrels of beef, fish, butter, &c., without
the knowledge and not under the inspection of a revenue officer,
with intent unlawfully to proceed with the vessel and cargo to some
place without the port, harbor, and district of New London. That
the vessel, so laden, left her place at the wharf in the port of
New London in the night without the knowledge of any custom house
officer, without a license or permit, and without any custom house
papers, and departed therefrom and out of the said port, and
proceeded on her said intended unlawful voyage to some place to the
custom house officers unknown. That the cargo was worth more than
$600. That the vessel was unlawfully employed in trade other than
that for which she was licensed.
The facts of the case appeared to be as stated in the libel,
except that the vessel was seized in the act of leaving the port,
but before she had gone out of the port, and that Gates, the owner
of the greater part of the cargo, was neither master, owner, nor
mariner of the vessel.
Page 11 U. S. 105
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
The sloop
Active, a vessel licensed for the fishing
trade, was laden, in the night of 4 July in the year 1808 in the
port of New London, and was seized by the revenue officer after
having left the wharf without a clearance under circumstances which
justify a belief that she was about to proceed on a foreign voyage
in violation of the acts laying an embargo. The vessel and cargo
were libeled as having been forfeited under the laws of the United
States, and were both condemned in the district court, which
sentence was affirmed in the circuit court.
This sentence is supported on the part of the United States
under the 3d section of the supplementary act to the act laying an
embargo and the 32d section of the act for enrolling and licensing
ships or vessels to be employed in the coasting trade and
fisheries.
Page 11 U. S. 106
This Court is of opinion that however criminal the intentions of
those on board the
Active might have been, neither the
vessel nor cargo were forfeited under the 3d section of the "act
supplementary to the act, entitled an act laying an embargo on all
ships and vessels in the ports and harbors of the United States,"
because she appears to have been seized in port, and a departure
from port without a clearance was necessary to consummate the
offense.
The case is undoubtedly within the words of the 32d section of
the enrolling and licensing act. The
Active was a licensed
vessel employed in a trade other than that for which she was
licensed.
The argument that this act was intended merely to secure the
revenue, and that its provisions do not contemplate a vessel laden
with domestic produce not subject to duty, has been urged with
great force and certainly derives much strength from the various
sections of the act which have been quoted. But the words of the
32d section are explicit, and although other preceding sections
furnish much reason for believing that a forfeiture in a case where
the revenue could not be defrauded might not be contemplated by the
legislature, yet they are not so expressed as to control the 32d
section. The
Active and her cargo therefore must be
considered as forfeited except so far as they come within the 33d
section.
That section is in these words:
"Provided nevertheless, and be it further enacted, that in all
cases where the whole or any part of the lading, or cargo on board,
any ship or vessel, shall belong
bona fide to any person
or persons other than the master, owner, or mariners of such ship
or vessel and upon which the duties shall have been previously paid
or secured according to law, shall be exempted from any forfeiture
under this act, anything therein contained to the contrary
notwithstanding."
In this case, the libel states that _____ Billings and _____
Morgan were owners of the vessel, and a certain _____ Cates owner
of the cargo. A claim is filed by Billings and Morgan for the
vessel and part of
Page 11 U. S. 107
the cargo, and by Gates for the residue of the cargo. It
appears, then, both from the libel and claim that a part of the
cargo did "belong,
bona fide, to a person other than the
master, owner, or mariners of the ship or vessel." This part of the
cargo comes completely within that part of the description which
relates to the ownership of the property. But the goods on board
being liable to no duty, the duties could not have been previously
paid or secured.
The Court considers this section as manifesting a clear
intention in the legislature to exempt from forfeiture a cargo not
belonging to the owner, master, or mariners, provided that cargo
was not liable to duties. Whether this condition was produced by a
previous payment of duties or by a perfect exemption from duties
must be immaterial. Duties cannot be paid or secured according to
law on goods not liable by law to duty. The legislature must be
understood, when saying "upon which the duties have been previously
paid or secured according to law" to mean "upon which the duties,
if any, have been previously paid," &c.
It is the opinion of the Court that the sentence of the circuit
court be
Reversed as to so much of the cargo of the sloop Active as
is claimed as the property of Gates, and be affirmed as to the
vessel and the residue of the cargo.
And it is directed to be certified that there was probable
cause of seizure.
