1 Cliff. 463 | U.S. Circuit Court for the District of Maine | 1860
In considering the first question, which is purely one of construction, it must be assumed that the act of congress under consideration is valid and obligatory. Referring to the first section of the act [9 Stat. 440] it will be seen that it provides that no bill of sale, mortgage, hy-pothecation, or conveyance of any vessel of the United States shall be valid against any person-other than the- grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled. Relying upon the closing paragraph of the section, the libellants insist that the respective mortgages of the claimants were not duly recorded according to that provision; that the proper office for registering the same was that of the collector of Norfolk, from which the temporary register of the vessel issued, and not that of the collector at Frenchman’s bay, where the vessel was built, originally registered, and permanently enrolled. On the other hand, the claimants insist that by the true construction of the provision, the registry of every such transfer must always be made at the custom-house of the home port of the vessel where the permanent register or enrolment was obtained. Ships or vessels are required to be registered by the collector of the .district in which shall be comprehended the port to which the same shall belong at the time of the registry, which port shall be deemed to be that at or nearest to which the owner, if there be but one, or if more than one, the husband or acting and managing owner usually resides. [Act Dec. 31, 1792] 1 Stat. 2SS [section 3]. Permanent registry, therefore, as manifestly appears by that provision, is required to be made at the home port of the vessel, and what is meant by the home port is clearly and plainly defined. That requirement is also accompanied by another, which it becomes important to. notice in this connection, and which is scarcely less significant than the one just recited. Registry must be made at the home port; and the same section provides that the name of the ship or vessel, and of the port to which “she shall so belong,” shall be painted on her stern, on a black ground, in white letters of not less than three inches in length; and the owner or owners are made liable to a penalty of fifty dollars for neglecting to comply with that requirement. All persons interested, therefore, have the means of ascertaining the name of the vessel and her home port; and her shipping-papers, which include a copy of her register or enrolment, are by law required to furnish the same information. Matters requisite to the registering of any ship or vessel are required to be recorded, and for that purpose the collector of the district comprehending the port to which the ship or vessel belongs is required to keep in some proper book a record or registry thereof, and •to grant an abstract or certificate of the same according to the form prescribed in the ninth section of the act. Other provisions also of the same act show that every ship or vessel has a home port, and that all persons interested are by law referred to that port for their permanent registers or enrolments. Citizens of the United States may become the owners of a ship or vessel entitled to be reg
But let it be conceded that the views of the libellants are correct, and it at once becomes obvious that the requirements are substantially useless; a compliance with them would seldom or never accomplish the object for which they were enacted. Ships or vessels absent from the home port may change their papers at any other one of the hundred and fifty custcm-houses established under the revenue laws of the United States. Such changes occur of course while the vessel is absent from the port of the district to which she belongs, and in many instances without the knowledge of those owning a majority in interest of the vessel. Purchasers, under such circumstances, would hardly find it practicable to make search at all the custom-houses in the United States in order to learn the state of the vessel’s papers, and unless they did so the dishonest vendor, on the theory of the libellants, might
Congress, by the express words of the constitution, has power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Able •counsel maintained in Gibbons v. Ogden, 9 Wheat. [22 U. S.] 3, that the power of congress in this behalf was limited to the interchange of commodities, and that it did not comprehend navigation. Responding to the argument on that point, Marshall, C. J., said, if commerce does not include navigation, the .government of the United States has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen; yet this power has been exercised with the ■consent of all from the commencement of the government, and has been understood by all to be a commercial regulation. All America, says the late chief justice, understands and has uniformly understood the word “commerce” to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed; and finally, he affirms that the power to regulate navigation is as expressly granted as if that term had been added to the word “commerce.” But the Case of Sinnot v. Davenport, 22 How. [63 U. S.] 242, is more directly in point, and perhaps ought to be considered as decisive of the question. On that occasion the court had under consideration the question, whether the law of the •state of Alabama requiring owners of steamboats navigating the waters of the state to file in the probate office of the county of Mobile a statement specifying the name of the vessel, the uame of the owner or owners, his or their place of residence, and the proportion owned by each, was or not constitutional; and the court unanimously held that it was not, because it was in conflict with the law of congress providing for the registering and enrolling of vessels. Speaking directly upon the question involved in the case, the court say: “Congress, therefore, has legislated upon the very subject which the state law has undertaken to regulate, and has limited its regulations in the matter to a registry at the home port.” That opinion was given in 1859, more than eight years after the act of congress in question was passed. Undoubtedly the means of ascertaining the names and citizenship of the ■owners of ships and vessels, and of perpetuating and authenticating the evidence thereof, are regulations of commerce within the meaning of that term, as defined by the decisions of the supreme court; and if so, then it clearly follows that the regulations of congress are paramount to those enacted by the state.
For these reasons, I am of the opinion that the act of congress under consideration is valid, and consequently that the decree of the district court must be affirmed.