Ripley v. Gelston, 9 Johns. 201

Ripley v. Gelston

9 Johns. 201 | N.Y. Sup. Ct. | 1812

Per Curiam.

The principal question here is, whether the defendant was authorized to demand the money which he exacted of the plaintiffs, as the tonnage or light money of the ship they had purchased. The ship arrived in the port of New-York in distress, and was entered in September, 1809, and being condemned and sold by the wardens of the port, the sum in question Tras exacted, on the clearance of the ship, on another voyage, in May, 1810.

The law (Laws of U. S. vol. 4. 384.) requires tonnage to be paid at the time of entry, and no permit to unlade is to be granted *209until the duty is paid. This is the general rule on the subject 5 and light money on the entry of foreign vessels, is to be levied in the same manner as tonnage. (Laws of U. S. vol. 7. 157.) But there is a special provision for the case of vessels arriving in distress. They are to be unloaded free of duty when there is a necessity for it, and when the goods are reladen, the ship may proceed “ to the place of her destination,” free of any other charge th 'ri what relates to the storage of the goods, &c. (Laws of U. S. vol. 4. 377.) The statute does not provide especially for the case in which the ship so arriving in distress is necessarily condemned and sold, and the voyage broken up; but the reason of the exemption seems to apply. The permit to unload the goods from the ship, without exacting the tonnage, is an admission of the exception. If tonnage be not due when the ship so arriving in distress is repaired, and enabled to renew her voyage, it would be inconsistent and unjust to demand it, when she was so disabled as to be incapable of repair, or of renewing the voyage. This would be to waive the duty in the case of a moderate, and require it in case of an extreme calamity to the ship. When the plaintiffs purchased the ship, they did not purchase her with this tonnage duty as a lien attached to her. Suppose her very wreck had been purchased, and a new ship had been built on the same keel and with the same name, would any person have thought of tho tonnage duty ? The very entry of the ship in distress and landing of the goods, seems to have put an end to the tonnage duty, provided there was no collusion or bad faith in the transaction, and the voyage was interrupted, or finally broken up, from the necessity of the case.

The tonnage or light money in question was, at any rate, wrongfully demanded of the plaintiffs as a condition of the clearance, and that being established, they are entitled to recover it back in this action, without showing any notice to the defendant not to pay the money into the public treasury. The cases which exempt the agent from the suit, if he has, in the mean time, paid over the money to his principal, without notice, do not apply. Here is no person but the defendant, against whom the suit could, in any event, be brought, and the money was paid by compulsion. It was ex - torted as a condition of granting the clearance, and not paid with the intent or purpose that the collector should pass it to the credit of the United States. The case of Snowdon v. Davis, (1 Taun. *210359.) lays down this just distinction, that notice to the agent is ndt requislte, in the case of a compulsory payment, and one not made expressly for the use of the principal. The plaintiffs are, accordingly, entitled to judgment.

Judgment for the plaintiffs.