Harrison v. Vose

THIS case came up from the Circuit Court of the United States for Maine, upon a certificate of division in opinion between the judges thereof.

It was an action of debt for the penalty of five hundred dollars imposed by the statute (2 Stat. at Large, 203) which will be presently quoted, brought in the Circuit Court for Maine, in the name of Mr. Harrison, United States Consul at Kingston, in the island of Jamaica, against George C. Vose, master of the brig Openango.

By the second section of the act of 28th February, 1803, entitled 'An act supplementary to the act concerning consuls and vice-consuls, and for the further protection of American seamen,' it is enacted:-'That it shall be the duty of every master or commander of a ship or vessel, belonging to citizens of the United States, who shall sail from any port of the United States after the first day of May next, on his arrival at a foreign port, to deposit his register, sea-letter, and Mediterranean passport with the consul, vice-consul, commercial agent, or vice commercial agent (if any there be at such port); that in case of refusal or neglect of the said master or commander to deposit the said papers as aforesaid, he shall forfeit and pay five hundred dollars, to be recovered by the said consul, vice-consul, commercial agent, or vice commercial agent, in his own name, for the benefit of the United States, in any court of competent jurisdiction; and it shall be the duty of such consul, vice-consul, commercial agent, or vice commercial agent, on such master or commander producing to him a clearance from the proper officer of the port where his ship or vessel may be, to deliver to the said master or commander all of his said papers. Provided, such master or commander shall have complied with the provisions contained in this act, and those of the act to which this is a supplement.'

The action was brought at the October term, 1847. Vose appeared and pleaded nil debet, and the cause came on for trial at the same term.

The facts in proof in the case were as follows.

The brig Openango, belonging to citizens of the United States, George C. Vose (the defedant) master, sailed from Eastport, in the State of Maine, in the month of July, 1844, with a cargo of lumber, consigned to Messrs. Darrell & Barclay, merchants, of Kingston, in the island of Jamaica, and arrived at Port Royal, in the harbour of Kingston aforesaid, on the 4th day of September of the same year, and came to anchor at about a quarter of a mile from the town, but did not go up to the town, nor come to an entry, nor discharge any part of her cargo, nor take in cargo or passengers at Kingston, nor do any business, except to communicate with his consignees; by whom the master of said bring was informed that his cargo was sold, deliverable at Savannah la Mar.

The defendant on his arrival at Kingston, or at any time while said brig lay at anchor at Kingston, did not deposit his register-, sea-letter, or Mediterranean passport with the plaintiff, who was the United States Consul at said port of Kingston at the time of the arrival of said bring there, as aforesaid.

After communicating with said consignees, the master of said brig, on the 5th day of said month of September, sailed in said brig from said port of Kingston to a place in said island of Jamaica called Savannah la Mar, where she arrived in due season, came to an entry, discharged her cargo, and where the said master deposited the register, sea-letter, and passport aforesaid with the vice-consul of the United States at said place called Savannah la Mar. One of the defendant's witnesses testified, that said brig arrived at Kingston in the afternoon of the 4th of September, and sailed from Kingston the next morning after her arrival there, and as soon as the wind would permit.

It was in proof, from one of the Kingston pilots, that the master of a vessel arriving at Kingston is compelled by law to report his arrival at the custom-house, whether his cargo had been previously sold, deliverable at another port, or not, but was under no necessity of coming to an entry.

At the trial, the following question occurred upon the foregoing testimony, to wit:--

Whether it was the duty of the defendant, who was master or commander of the ship or vessel called the Openango, on his arrival at Kingston, in the island of Jamaica, to deposit his register, sea-letter, and Mediterranean passport with the United States Consul at said port.

Upon which question, the judges of the said Circuir Court were opposed in opinion; and thereupon, upon the motion of the District Attorney, for and in behalf of the United States, it was ordered by the court, that the said question, upon which the said judges were so opposed, should be certified, under the seal of the court, to the Supreme Court of the United States, at their next session, for a final decision.

LEVI WOODBURY, Associate Justice of Supreme Court.

ASHUR WARE, District Judge.

The cause was argued by Mr. Johnson (Attorney-General), for the plaintiff, no counsel appearing for the defendant.

Mr. Johnson said, that upon this question the opinions of two courts below have been conflicting, and the present case has been brought up to have the true construction of the act settled. The cases are Toler v. White, Ware, 277, and Parsons v. Hunter, 2 Sumner, 419.

As bearing upon the question, the court is referred to the following acts. Collection Act of 10th August, 1790, § 16 et seq. (1 Statutes at Large, 158); Act concerning the Registering and Recording of Vessels (Ibid. 292); Coasting Trade Act, §§ 3, 15, 17, and 22 (Ibid. 306); United States v. Shackford, 5 Mason, 445.

There are also hereto annexed copies of two opinions given in the Attorney-General's office in relation to this subject.

'Attorney-General's Office, June 11, 1845.

'HON. JAMES BUCHANAN, Secretary of State.

'Sir.-I have had the honor to receive your communication of the 16th April last, with a letter from the United States Consul at Nassau, asking my opinion on the question presented by the consul.

'He states, 'that his instructions to his agents have been to this effect, that any voluntary arrival at their ports obliges the master of the vessel upon his arrival to deposit his register, whether such arrival be for advices or not, or whether the vessel comes to an entry or not, and without respect to her remaining twenty-four hours, or any definite time, or not.' And the question presented for consideration is, Are those instructions warranted by law?

'By the second section of the act of 28th February, 1803, it is made the duty of every master of a vessel, belonging to citizens of the United States, who shall sail from any part of the United States, on his arrival at a foreign port, to deposit his register, sea-letter, or Mediterranean passport with the consul, vice-consul, or commercial agent, if any there be at such port. In case of refusal or neglect, he is subjected to a penalty of five hundred dollars. And the same section makes it the duty of such consul, vice-consul, or commercial agent, 'on such master or commander producing to him a clearance, from the proper officer of the port where his ship or vessel may be, to deliver to the said master or commander all of his said papers.'

'Taking the whole section together, it is very obvious that Congress required the papers of an American vessel in a foreign port to be delivered to the consul only where it was necessary to make an entry at the custom-house. It is on the master's producing a clearance that the consul is to return him his papers, and there can be no clearance where there is no entry. If an American vessel arrive at her port of discharge, or if, for any reason other than the purpose of trading with the whole or portion of her cargo, she shall remain so long that by the law of the country an entry is required, she must enter at the custom-house of such port, and in all such cases the master must deposit his register. But the law does not extend the duty beyond this. A requisition of a deposit of papers, in all cases of arrival, where by the local laws an entry is not necessary, and where there is no trading or purpose to trade, might add to consular emlouments, but would prove extremely embarrassing to the navigating interest. The object of the law is to compel masters of vessels belonging to American owners, sailing from American ports, to respect our own laws, and those of the foreign countries to whose ports they may go for the purpose of trade; and this object is attained by requiring them to exhibit the evidence of their being lawful traders to our consuls, at the ports where they have to enter. Beyond this, neither the law nor good policy requires that their duty shall extend.

'I have the honor to be, respectfully, Sir, your obedient servant,

'JNO. Y. MASON.'

'Attorney-General's Office, September, 26, 1849.

'HON. JOHN M. CLAYTON, Secretary of State.

'Sir,-The question you have submitted to this office, upon the letter of F. H. Whitmore, Esq., of New Haven, Connecticut, of the 10th September, 1849, 'respecting the demand made by the United States commercial agent at St. Thomas, in all cases of the arrival at that port of an American vessel, whether business is or is not done by her, that the register, &c., be deposited with him,' I have considered.

'The legality of the demand depends upon the proper construction of the second section of the act of Congress of the 28th February, 1803, supplementary to the 'Act concerning consuls and vice-consuls, and for the further protection of American seamen.' 2 Statutes at Large, 203.

'By the words of the first part of the section, the master of an American vessel, sailing from a port in the United States, is required to deposit his register, sea-letter, and Mediterranean passport, 'upon his arrival at a foreign port,' with the American consul, &c., &c., if there be one at such port. The duty, regarding this part of the section, only exists upon arrival, without reference to its object, and whether it be voluntary and for business, or otherwise. But the subsequent part qualifies, I think, the general words of the first. It is in the provision that the consul, &c., on the master's 'producing to him a clearance from the proper officer of the port where his ship or vessel may be,' shall deliver to him 'all of his said papers.' Construing the two clauses together, I think the true meaning of the whole is, that there is to be no deposit of the papers upon an arrival, unless it be an arrival with a view to entry, or where by the local law an entry is required. Where either exists, my opinion is, the deposit with the consul, &c., is to be made; and of course it is the duty of the consul to demand it. It will be seen, I think, that in this view of the case I but concur in the opinion to which you refer, of Mr. Attorney-General Mason, of the 11th of June, 1845.

'After quoting the section of the act in question, he says, 'Taking the whole together, it is obvious that Congress required the papers, &c., to be delivered to the consul only when it was necessary to make an entry at the custom-house'; and therefore, 'if an American vessel arrive at her port of discharge, or if, for any reason other than the purpose of trading with the whole or portion of her cargo, she shall remain so long that, by the law of the country, she must enter at the custom-house of such port,' the deposit must be made.

'Interpreting the section as I do, to require the deposit only when an entry is to be made, he makes it the duty of the master, as I do, to deposit, in case of entry in port, without regard to the manner or object of its being made. The motive for the deposit is, I think, the same in all cases of actual entry, and the trouble and duty of the consul, &c., the same. He is in both cases to take charge of the vessel's papers, and to hold them until she is again cleared, and for the trouble of receiving, preserving, and delivering them (of each of which acts he is to give a certificate under seal), he is entitled to charge two dollars. See chapter 8, section 7, of General Instructions to Consuls, of the 6th June, 1849.

'The result, then, to which I come is this, that the commercial agent at St. Thomas, in the case of all American vessels arriving there, and remaining so long as by the local regulation to be obliged to enter, and afterwards to clear, is entitled, and it is his duty to demand, the surrender of their papers, under the act of 1803, no matter what may be the motive of the entry, whether from business or not.

'I have the honor to be, Sir, your obedient servant,

'REVERDY JOHNSON.'

Mr. Justice WOODBURY delivered the opinion of the court.