240 F. 929 | 5th Cir. | 1917
On September 28, 1910, the board of commissioners of the port of New Orleans, a body organized under an act of the Legislature of Louisiana, filed its libel against the. steam ship Cestrian, claiming $1,089.47 as due for harbor fees, wharfage, and shed charges against that ship, based, as provided in the act mentioned, upon what the libelant claimed was the vessel’s gross tonnage. Acts of Louisiana 1900, p. 44, Act 36. The claimant tendered $941.42, asserting that only that amount was due, which tender was refused. The contention of the claimant was sustained by the decree appealed from.
“If there be a break, a poop, or any other permanent closed-in space on the upper deck available for cargo or stores, or for the berthing or accommodation of passengers or crew, the tonnage of that space shall be ascertained and added to the gross tonnage: Provided, that nothing shall be added to the gross tonnage for any sheltered space above the upper deck which is under cover and open to the weather,; that is, not inclosed.” 3 U. S. Comp. Stat. 1913, § 7730, subd. “h,” p. 3445.
The shelter deck of the steamship Cestrian is the space above the upper deck which is permanently inclosed by a steel structure and
It seems that there is no necessary inconsistency between a finding by the customs officials that a given space in a vessel is unavailable for cargo which it could bring into the port at which the tonnage duty is payable, and a finding that the same space is available, and in fact is habitually availed of, for the storage of outward-bound cargo from the same or another port. It is further made to appear that there is a lack of uniformity in the rulings of the customs officials on the question of including or excluding, the space within such a shelter deck as that of the Cestrianin computing a vessel’s gross tonnage, the conclusion in a given case depending upon whether the space is or is not found to be so covered and inclosed that cargo needing protection from the weather may be, and in fact is, stored and carried there with reasonable safety. It seems obvious that the space above the upper deck of a vessel which is so covered and inclosed during a voyage as to be available, and habitually availed of, for the storage of export or outbound cargo needing protection from the weather, cannot properly be excluded in computing its gross tonnage for the purpose of ascer-. taining the basis upon which the vessel is subjected to the payment of charges, measured by the vessel’s carrying capacity, for the use by it of public utilities of the port at which the cargo is taken on; that use being incident, not merely to the vessel’s entry at the port, but also to its stay there while taking on, as well as while unloading, cargo.
The Louisiana statute above referred to imposes the charges for a vessel’s use of the public wharves, etc., of the port of New Orleans,
The decree of the District Court is reversed, and a decree will be here entered in favor of the appellant for the amount claimed in the libel, interest thereon, and the costs of the suit.