Ducos v. United States

ANDEBSON, Circuit Judge. The court below entered decrees forfeiting the schooner Cherie and her cargo of liquors. The claimant appealed, and assigned thirty-one errors, cut down in argument to four points, only one of which calls for serious consideration. The facts, stated substantially as found by the court below, are as follows: The two-masted schooner Cherie, 95 tons burden, of French registry, and flying that flag, having cleared from Halifax to Nassau with a large cargo of liquors, arrived off the coast of Maine on June 19,1925, and anchored seven or eight miles southwesterly of Swan’s Island. The weather had been pleasant, the vessel had encountered no stress, and had met with no accident. The conclusions of the court below — that she came thus to this position for the purpose of disposing of her cargo, and that this was an arrival under the statute — are fully warranted by the evidence. Harrison v. Vose, 9 How. 372, 381, 384, 13 L. Ed. 179. Thereupon various residents of Swan’s Island and its vicinity went out to the vessel and bought liquors, some by the bottle and some by the case. This traffic went on from June 19 to the morning of June 21, when prohibition and customs officers, informed of the situation, went out to the vessel and boarded her. The captain, on being told that the officers had information that the vessel was in touch with the shore and was selling liquor, and that they proposed to seize her, asserted his right to he where he was and to do what he was doing. The vessel and cargo were then seized and taken to port. The court below also found, on adequate evidence, that the same vessel had been in about the same position a month before, carrying on the same kind of business, and had also been carrying on the same kind of traffic off Boston. In brief, the Cherie was an offshore rum runner. It is therefore clear that this is a case where a master of a vessel from a foreign port, anchored within four leagues of our coast and caused, or permitted, merchandise to be unladen, having no permit therefor, and not having come to the proper- place to discharge, with the intention of unloading the whole cargo there in violation of our customs laws. The seizure and forfeiture wore grounded on section 586 of the Tariff Act of September 23,1922 (42 Stat. 980 [Comp. St. Ann. Supp. 1923, § 5841h5]), the pertinent part of which is as follows: < “Unlawful Unlading — Exception. The master of any vessel from a foreign port or place who allows any merchandise (including sea stores) to be unladen from such vessel at any time after its arrival within four leagues of the coast of the United States and before such vessel has come to the proper place for the discharge of such merchandise, and before he has received a permit to unlade, shall be liable to a penalty equal to twice the value of the merchandise but not less than $1,000, and such vessel and the merchandise shall be subject to seizure and forfeiture.” There follows a proviso to cover unlading due to accident or stress of weather, etc., not claimed to be here applicable. Turning now to the points argued, the appellant’s first three contentions,— (1) That the Cherie was not within twelve miles of the coast; (2) That there was no arrival within the meaning of section 586, supra; (3) That there was no unlading within the meaning of said section —are without merit, for the evidence fully warranted the findings of the court below. Compare Church v. Hubbart, 2 Cranch, 187, 2 L. Ed. 249; United States v. Bengochea (C. C. A.) 279 F. 537; Cunard S. S. Co. v. Mellon, 262 U. S. 100, 122 and cases, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306. The only contention calling for discussion is as to whether section 586 is to be construed as warranting a forfeiture of the entire cargo or only of the merchandise unladen. This is obviously nothing but a question of statutory construction. This statute is a revision of Revised Statutes, § 2867 (Comp. St. § 5555), which originated in the Act of March [994] 2,1799,. c. 22, § 27 (1 Stat. 648). The pertinent part of the original statute read: “If after the arrival of any vessel laden with merchandise and bound to the United States, within the limits of any collection district, or within four leagues of the coast, any part of the cargo of such vessel shall be unladen, for any purpose whatever,' before such vessel has come to the proper place-for the discharge of her cargo, or some part thereof, and has been there duly authorized by the proper officer of the customs to unlade the same, the master of such vessel and the mate, or other person next in command, shall respectively be liable to a penalty of one thousand dollars for each such offense, and the merchandise so unladen shall be forfeited, except in case of some unavoidable accident, necessity, or distress of weather.” The new statute (section 586) it will be observed, cuts out 'the language, “and bound to the United States within the limits of any collection district,” and provides that the master “shall be liable to a penalty equal to twice the value of the merchandise but not less than one thousand dollars,” and also provides, “and such vessel and the merchandise shall be subject to seizure and forfeiture.” Manifestly, the new statute was intended to broaden the scope and increase the penalties for such species of smuggling. No question is or can be made that the new statute provides for the forfeiture of the vessel. We agree with the court helów that it also covers the cargo, and for two main reasons: (1) Congress'would not have been likely to provide so drastic a remedy as the forfeiture of a vessel without at the same time providing for the forfeiture of the offending cargo, the unlading from which constituted the real offense against our laws. There are also obvious practical physical difficulties in seizing vessels loaded with nonseizable merchandise, particularly when the typical cargo will be liquors under the ban of our Constitution and its enforcing legislation. (2) In the old statute it was provided “the merchandise so unladen shall be forfeited.” The new statute omits the significant words “so unladen.” We are not warranted in reading back into the statute these significant words that Congress left out. Whether the penalty imposed upon the offending master is measured by the merchandise unladen, or by the entire cargo, is a point not involved on this record. But, even if merchandise unladen measures the master’s penalty, that is not, in our view, enough to overcome the inference that, when Congress omitted the words “so unladen” in the forfeiture clause, it meant that the cargo, as well as the vessel, should be forfeited. While the statute is in general terms — applicable to all merchandise — we should be blind not to see that in motive and dominating purpose it flows from our national prohibition policy, the Eighteenth Amendment. Congress had, as we think, no intention of allowing cargoes of liquors on seized rum runners to escape forfeiture. Compare The Sagatind (C. C. A.) 11 F.(2d) 673, 675; The Over The Top (D. C.) 5 F.(2d) 838; The Panama (D. C.) 6 F.(2d) 326. The decrees of the District Court are affirmed.