Taber v. United States

| U.S. Circuit Court for the District of Massachusetts | Jan 23, 1839

STORY, Circuit Justice.

The act of 1803, c. 62 [2 Story’s Laws, 883; 2 Stat. 203, c. 9], supplementary to an act concerning consuls and .vice consuls, &c. provides in the first section: “That before a clearance be .granted to any vessel, bound on a foreign voyage, the master thereof sha’l deliver to the collector of the customs a list, containing the names, places of birth, and residence, and a description of the persons, who compose his ship’s company, to which list the oath -or affirmation of the captain shall be annexed, &c. &c. and the said collector shall deliver him a certified copy thei'eof, &c. &c. &c.; and the master shall moreover enter into bond, with sufficient security, in the sum'of four hundred dollars, that he -shall exhibit the aforesaid certified copy to the first boarding officer, at the first port in the United States, at which he shall arrive on his return thereto, and then and there produce the persons named therein to the said boarding officer, &c. &c.”; with other specific provisions , and Exceptions' which1 it is unnecessary'to recite.

- In the present case the' requisitions of the kct have not been complied with; and it is •insisted on behalf of the United States, that the bond is forfeited thereby. On the other hand, it is insisted on behalf of the plaintiffs in "error, (the original defendants), that the bond itself is a mere nullity, and not by law required to be given by ships engaged in whaling voyages. And the main question, therefore, is whether a ship engaged exclusively in. a whaling voyage, is within the descriptive words and sense of the act of 1803, “a vessel bound on a foreign voyage.” If she is not, then I am of opinion, that no action can be maintained on the present bond, as it seeks to enforce a supposed statute duty, and is in the nature of a penalty, and has been exacted by the officers of the government, under a mistake, as wéll of their duty, as of law, and that the judgment ought to be reversed.

. It is clear, that it has been.for a long period the practice of the custom bouse officers to take lists of the crew,-and bonds .from the masters -of whaling ships, under the supposed authority of the act of 1803, c. 62 [2 Story’s Laws, 883; 2'Stat. '203, c. 9). And certainly this practice is entitled- to some weight in ascertaining the true interpretation of' the act; although it cannot control the true interpretation of it, if the practice does not conform to it. And it is not decisive in a case of this nature, that the mis-chiefs to be guarded against and remedied by the act of 1S03, are equally as applicable to whaling voyages, as to voyages to foreign ports for the general purposes of trade. Where a penalty,, or a provision in the.nature of a penalty, is to be enforced, the general rule is, that the statute is to be construed strictly; and the language is not to be enlarged to cover a case standing upon similar grounds, if the -ordinary interpretation of the terms would-not reach it. Now, the ordinary meaning, which we annex in commercial transactions to the words, “a vessel bound on a foreign voyage,”, is, that it refers to a voyage to some port or place within the territory and jurisdiction of some foreign sovereign. We do not restrict the meaning of the words to voyages carried on beyond the actual territorial limits of the United States, in contradistinction to voyages on our inland waters, or to mere coasting navigation in our sounds and rivers. We should not call a voyage from Boston to New Orleans a foreign voyage, although a great portion of the voyage is out of the limits of the United States. In such a case the terminus of the voyage settles the description. On the other hand, we should call a voyage from Boston to any one of the West India Islands, as for example, to Cuba, a foreign voyage, for the very reason, that one of the termini of the voyage for the purposes of the enterprise is within a foreign territory. So, we never speak of a voyage in the bank' and other cod fisheries as a foreign voyage, although in such' a voyage the vessel sometimes may touch at a foreign port. Why? Because the ocean is deemed ■the common highway of all • nations, and foreign to none. It is in no just sense within any foreign jurisdiction. And here, again; we are governed in the- appellation by the descriptive termini of the- fishing voyage, the port from which the vessel proceeds; and to which she is to return. I know no difference in this particular in common usage between fishing voyages and whaling voyages. Whaling voyages are emphatically voyages on the ocean. In' short, as a generic expression, “a foreign voyage” means, in the language of trade and commerce, a voyage to some port or place within the territory of a foreign nation. This is emphatically true throughout the provisions of the duties’ collection act of 1799, c. 128 [1 Story’S Laws, 573; 1 Stat 627, c. 22], which still constitutes the leading statute to regulate our intercourse with foreign nations for commercial purposes. The - words there used in regard to foreign importations, are “goods brought from a foreign port or place,” or a vessel arriving “from a foreign port or place.” Similar descriptive phraseology will be found in the act for the government and regulation of seamen in the merchant service (Act 1790, c. 56 [1 Story’s Laws, 102; 1 Stat. 131, c. 29]), where shipping articles are required on voyages of a ship or vessel “bound from a port of the United States to any foreign port.” On the other hand, in the act of 1813, c. 2 [2 Story’s Laws, 1315; 3 Stat 2], regulating shipping articles in the bank and other cod fisheries, the words are, “any vessel bound from a port of the United States to be employed in such fisheries.” The navigation act of 1817, c. 204 [3 Story’s Laws; 1623; 3 Stat 351, c. 31], insists throughout upon similar distinctions.

- Passing’ from these general considerations, let us see whether any fixed interpretation of a different sort is to be found in the laws of the United States. If there be not, then; I take it to be clear, upon the established rules of interpretation of statutes respecting commerce, ■ that the common commercial sense of the words is to be adopted, unless there be a distinct controlling sense put upon the words by the legislature. The supreme' court of the United States have uniformly acted upon this doctrine. I recollect but two instances, in which the phrase, “foreign voyage,” occurs in the laws of the United States; and two only have 'been pointed out at the argument; and, after such thorough researches by counsel, I presume none other exists. One is in the statute of 1803,: c. 62 [2 Story’s Laws, 8S3; 2 Stat. 203, c.- 9],! now under consideration. The other is in the act of 1793, c. 52 [1 Story’s Laws, 285; 1 Stat. 305, c. 8], for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries. This last act is the only one specially directed to the whale fisheries, as well as to the cod fisheries. In the eighth section it declares, “that if any ship or vessel enrolled or licensed as aforesaid shall proceed on a foreign voyage without first giving up her enrolment and license,” &e., she shall be liable to seizure and forfeiture. Now, here, the words are distinct and appropriate, and applied to the very subject matter of the whale fisheries. “Foreign voyage” is used in contradistinction to fishing voyage and whaling voyage, expressing the clear sense of the legislature, that a fishing voyage or a whaling voyage is not “a foreign voyage.” Nearly thirty years ago this very question under that act came before the court in the case of The Three Brothers [Case No. 14,009], and it was then decided, that a fishing vessel, which, according to the course and usage of the fishing employment, went to a foreign port, if it was not for the purpose of trade th.ere, was protected from seizure and forfeiture. In short, she was not engaged in a foreign voyage in the sense of the act. •

Here, then, we have a clear expression of the legislature on the very point of the interpretation of the words, “foreign voyage.” Upon what ground can this court, then, declare, that a whaling voyage is a foreign voyage, when congress have used the words in contradistinction thereto, in an act pointed to the very subject of the whale fisheries? The act proceeds in another section (section 21) to provide for a permit to whaling ships “to touch and trade at any foreign port or place,” thus making a distinction between whaling voyages and trading at foreign ports. The act of 1803, c. 62 [2 Story’s Laws, 883; 2 Stat 203, c. 9], contains no words expressive of a different or more qualified sense. The words of the act are perfectly satisfied by understanding them in the common commercial sense, to mean a voyage to a port or place within the territory of a foreign nation. What is more important is, that the remaining sections of the act are mainly pointed to acts to be done, and to transactions which are to take place, in foreign ports, where we have regular stationed consuls and commercial agents. It would be impracticable, without a violation of all the common rules of interpretation, to apply the regulations of the second and third sections of the act to any whaling voyage, or to any voyage except one strictly for the purposes of general trade to a foreign port. Under such circumstances, the general maxim ought to be applied, “noscitur k soeiis.” We are to interpret the whole act, as having relation to the same common objects, and to be expressive of the same general relations of vessels in the merchant’s service in foreign trade. The act of 1813, c. 184 [2 Story’s Laws, 1303; 2 Stat. 809, c. 42], for the regulation of seamen on board of public and private vessels of the United States, seems conclusively to recognise and establish this very construction of the first section of the act of 1803, c. 62 [2 Story’s Laws, 883; 2 Stat. 203, c. 9]. It declares (section 2), “that in all cases of private vessels of the United States sailing from a port of the United States to a foreign port, the list of the crew, made as heretofore directed by law, shall be examined by the collector for the district, from which the vessel shall clear out, and, if approved by him, shall be certified accordingly.” The very object of this provision, and of the accompanying provisions of the act, was to afford protection to American citizens, whose names were borne on the list. This object certainly is equally applicable to whaling voyages and to voyages to foreign ports. And yet the legislature speaks only as to the latter; and thereby plainly shows, that the act of 1803 had reference solely to merchant vessels engaged in trade and bound to foreign ports for the purpose of foreign commerce.

Upon the whole, my judgment is, that a whaling voyage is not, in the common commercial sense of the words, deemed a foreign voyage, any more than a voyage in the cod or other common fisheries; that the words “foreign voyage” are in the common commercial sense applied to voyages to foreign countries, where the main terminus is a foreign port, for the purpose of exportation or importation in the course of trade; and that a voyage, which is to be essentially performed upon the ocean, from its nature and objects, is not deemed foreign to the country. I am also of opinion, that this is the sense, in which the language has been constantly understood by congress in all our public acts; and especially, that this is the natural and just sense of the language in the act of 1803, taking into consideration all the purposes and provisions within the scope of that act. If the question were entirely new, I should have no doubt, on the point But I think, that congress, in the act of 1793, c. 52 [1 Story’s Laws, 285; 1 Stat. 305, c. 8], for enrolling and licensing vessels for the whale fisheries, have directly established this very construction; and that no court of justice is at liberty to depart from it.

My judgment, therefore, is, that the judgment of the district court ought to be reversed.