9 F. 595 | D.N.J. | 1881
The petition is filed in this case by the owners of the steam-ship Italia, of the Anchor line, to recover from the proceeds of the sale of a quantity of iron ore, now in the registry of the court, the sum of $1,305.61, as freight for the transportation of said ore in the Italia from the port of Almoira, in Spain, to the port of New York. The ore was shipped at Almoira by one Joseph Eibiera, about the ninth of March last, and was to be carried to New York and delivered to Messrs. Schenck & Co., for the freight of nine shillings British sterling per ton of 2,000 pounds weight, and the usual bills of lading were executed therefor. Before its arrival there Schenck & Co. entered into a written contract to sell the cargo to Joseph K. Wells. The ore was guarantied to be not less than 55.56 of iron and 3.42 of manganese, making a total metallic yield of 58.98. A deduction of 10 cents per unit per ton to be made for any less percentage, and 10 cents per unit per ton added for any excess; the analysis to be determined from sample to be drawn from the cargo as discharged, and to be analyzed as received. The price agreed upon was $5.90 per ton, duty and all charges paid, and to be delivered to the purchaser from the ship at the harbor of New York, and to be paid for — one-half cash on delivery of custom-house permit, and the balance on presentation of United States weigher’s certificate of weight, and certificate of sampling and analysis. On the date of the execution of the contract Wells paid $200 on, account, and in advance of the approximate one-half to be paid by him on the delivery of the custom-house permit; the said
The case presents two questions for consideration: (1) Was the lien of the ship-owners on the cargo for freight lost by the delivery made ? (2) If not, does the forfeiture of goods, under sections 2839, 2864, Rev. St., extend to and include the interest of bona fide lienors without notice of the fraud ?
It is conceded' that by the maritime law the ship-owner had a lien upon the goods transported for the freight, unless there be some emulations in the contract of affreightment inconsistent with the exercise of the lien; as, for instance, when the freight is made payable at a date subsequent to the delivery of the cargo. For, unlike the privilegium under the civil law, the lien for freight depends upon the possession, and is lost when an unconditional delivery is made, or when any agreement is entered into by the parties in regard to the payment of freight, which involves a prior surrender of the possession. In the present case, the ship-owners, undoubtedly, intended to have
In 151 Tons of Goal, 4 Blatchf. 468, Judge Nelson went still further and said that “the mere manual delivery of the coal by the carrier to the consignee did not, of itself, operate necessarily to discharge the lien. The delivery must be made with the intent of parting with his interest in it, or under circumstances from which the law will infer such an intent.” Applying these principles to the
2. The ore has been forfeited under sections 2839, 2864, of the Revised Statutes. Does such forfeiture carry with it the lienor’s interest in the condemned merchandise ? Some discussion took place between the respective counsel, at the hearing, in regard to the effect which the recent legislation of congress had upon this question. By the third section of the act of March 2, 1867, (section 2981, Rev. St.,) the collector, or other chief officer of the customs, is authorized, on being notified in writing, by the owner or consignee of any vessel, of a lien for freight on! any merchandise imported in such vessel, to refuse the delivery of the same' from any public or bonded warehouse, or other place, in which the same shall be deposited, until proof to his satisfaction shall be produced that the freight has been paid or secured. The provisions of this section were modified by a substitute passed June 10, 1880, (Supp. to Rev. St. vol. 1, p. 547,) in which the proper officer of the customs, on receiving the said notice of lien for freight, is required, before delivering the merchandise to the importer, owner, or consignee, to.give seasonable,notice to the parties claiming a lien, and containing the further provision that the possession of the goods by the officers of the customs shall not affect the discharge of such lien. Both the original section and the substitute contain the clause: “If merchandise so subject to a lien, regarding which notice has been filed, shall be forfeited to the United States, and sold, the freight due thereon shall be paid from the proceeds of such sale in the same manner as other charges and expenses, authorized by law to be paid therefrom, are paid. ” The district attorney insists that as no notice was given to the proper officer of the customs the case 'does not come within the provisions of the act, and no statutory authority can be invoked to pay the freight out of the proceeds of the sale. The counsel for the petitioners, on the other hand, contends that no notice was required, as none of the iron ore went into a public or bonded warehouse,
But this question turns, in my judgment, upon other considerations, to which I shall now advert. There are a large number of statutes in both the customs and internal-revenue acts which subject property, used in violation of the law, to forfeiture. It is sufficient, for my present purpose, to divide these statutes into two classes, — one class forfeiting the offending res absolutely, without reference to liens of innocent holders, or the claims of bona fide purchasers without notice; and the other only condemning the interest of the guilty owner, and preserving the rights of honest lienors or purchasers. Most of the sections for forfeiture, under the internal-revenue laws, belong to the former classs, and many of those under the customs laws to the latter. Whether the statute falls within one class or the other depends upon the phraseology used by congress in its enactment. Where it makes the forfeiture absolute, it is within the former class, and the forfeiture is incurred at the time of the commission of the act which works the condemnation, and the title is vested in the United States from that date. No matter how long afterwards proceedings are taken to enforce the forfeiture, the right of the government runs back, by relation, to the time of the commission of the wrongful acts, and cuts out all intervening claimants, however innocent. But when a statute gives an alternative to the United States, either to forfeit the offending thing or its value by suit against the offending person, it comes within the latter class; because the government acquires no title to the property until its proper officers make an election whether they will proceed against the res or against the offender for its value,
“ It seems to be of the very nature of a right to elect one of two things: that actual ownership is not acquired in either until it be elected, and if the penalty of an offence be not the positive forfeiture of a particular thing, but one of two things, at the choice of the person claiming the forfeiture, it would seem to be altering materially the situation in which that person is placed to say that either is vested in him before he makes that choice. If both are vested in him it is not an election which to take, but which to reject. It is not a forfeiture of one of two things, but a forfeiture of two things of which one only can be retained.”
This construction of the class of statutes which forfeit the property with an alternative of its value, was acquiesced in by the attorney general of the United States in the discusion of the case of 1,960 Bags of Coffee, 8 Cranch, 398, and was afterwards deliberately reaffirmed in Caldwell v. U. S. 8 How. 366, where the supreme court reached the necessary conclusion of such a construction, by holding that any rights in the forfeited property, acquired in good faith by third persons, after the offence and before the date of the election, were not divested by the decree of condemnation. It will not be suggested, after the case of The Siren, 7 Wall. 152, that the government stands in any different relation to the money in the registry than do private suitors, except, that it is exempt from the payment of costs. It will be seen, by reference to the sections (2839, 2864) under which the ore was condemned, that they are both in the alternative. The United States had an election, in either case, whether to forfeit the merchandise, or
Let an order he entered' directing the clerk to pay to the petitioners the sum of $1,305.61 out of the proceeds in the registry.