286 F. 260 | S.D.N.Y. | 1922
The above libels in rem, three in number, filed by the United States, are to recover penalties, and for forfeiture of the sailing vessel Henry L. Marshall and her cargo of 1,250 cases of intoxicating liquor, which was taken aboard for transportation at the British Indies and brought to the United States in violation of section III, H, of the Tariff Act of 1913 (Comp. St. §■ 5526), and sections 2806-2809, R. S. (Comp. St. §§ 5503-5506). The libels, by consent of the parties, were tried together, and, as the evidence is applicable to all of them, a single opinion will suffice.
The libel against the cases of intoxicating liquors will be considered first. It alleges the seizure of the sailing vessel and transference of liquors without the consent of the collector of the port, into motorboats about 9 miles east of Atlantic City; that the liquors seized were brought into the Southern district of New York, where they remain; that when the vessel departed from West End Grand Bahamas to this country, immediately preceding her seizure, she had two sets of clearance papers, one stating that the vessel left for Gloucester, Mass., in ballast, the other that she was bound for Halifax, N. S., with 1,500 cases of liquor; that she had no manifest listing liquors on board, as required by sections 2806-2809, and 2814, R. S. (Comp. Ct. §§■ 5503-5506, 5511).
The libels against the vessel allege her seizure by the collector of customs on August 12, 1921, after seizure by the master of the revenue cutter Seneca outside the three-mile limit, and that at such time the vessel was within the jurisdiction of the United States and of this court. In separate counts it is alleged that at various times prior to her seizure the schooner unloaded and transferred liquors into small
Paragraph H of section III of the Tariff Act of 1913 in terms makes it an offense for any person or persons to enter or introduce, or attempt to enter or introduce, into the commerce of the United States, any imported merchandise by means of any false statement or of any false or fraudulent practices or devices. Claimant’s contention on this point is that the liability of the vessel and cargo must be strictly limited to merchandise to which the false or fraudulent practice directly applies, and hence the liquors illegally introduced by the small boats alone were subject to seizure under the National Prohibition Act (41 Stat. 305), while the 1,250 cases left on board the vessel were not subject to seizure in waters outside the three-mile limit from shore. Although the evidence relating to secretly unloading contraband at Savannah and other points prior to the seizure on August 1, 1921, off the coast of Atlantic City does not warrant seizure of the liquor for past offenses, yet it bears upon the prior transgressions of the master for which the vessel became liable.
The contention that the cargo or any portion thereof was not actually brought into the United States, that it did not consist of merchandise as that word is defined in the act, is not in my opinion maintainable, in view of the evidence showing a deliberate intention to violate the customs and revenue acts. According to the evidence, one Schliefer agreed at Miami, Fla., prior to the shipment of the cases of liquor in question, to purchase of one Crossland the entire cargo of liquor to be brought from West End Bahamas, delivery to be outside the three-mile limit at Atlantic City, as directed by one McCoy, who
The evidence shows conclusively that the master intended to introduce and did introduce the liquprs into the United States by the participation of small boats which came to the Vessel for transference. Such practices by concerted action were fraudulent and a violation of the statute in question. The transfers and deliveries of the liquor at night without the permission of the officials specified in section 2872 was an unlawful unloading. Even though the act of unloading began beyond the the three-mile limit, it continued until the liquor was landed. Such was the holding of Judge Morton in The Grace and Ruby (D. C.) 283 Fed. 475, recently decided, and T am in accord with his conclusions. The vessel here, as in The Grace and Ruby, actively assisted in the unloading, and by the use of motorboats or other craft caused the fraudulent introduction of the merchandise into the commerce of the United States.
The qualifying words of paragraph H, § III, relating to "deprivation of lawful duties, are not believed to be an essential element of the offense, since it comprehensively and in broad terms declares it to be an offense to “enter or introduce” merchandise into the commerce of the United States by any false or fraudulent practice. U. S. v. Cutajar (C. C.) 60 Fed. 744; U. S. v. Rosenthal (C. C.) 126 Fed. 776. Nor should the word “merchandise,” in view of the evidence, be given the narrow and restricted meaning contended. By section 2766, R. S. (Comp. St. § 5462), it is declared, it is true, that merchandise is that capable of being imported, and in U. S. v. Sischo (C. C. A.) 270 Fed. 958, and U. S. v. Hana (C. C. A.) 276 Fed. 817, this provision was construed to mean merchandise legally capable of being imported, and it was held that failure to manifest such merchandise did not subject the liquors to seizure and forfeiture under section 2809. In those cases the libel was under title 34, R. S., relating to collection of duties, while under paragraph H, § III, the word “merchandise,” in view of the evident intention of Congress to make it an offense to bring in any merchandise by fraudulent practices, is not believed to be thus limited. .It should, I think, be given its ordinary meaning, and, as said in U. S. v. Santini (C. C. A.) 279 Fed. 534, a liberal construction.
In that case, decided by the Circuit Court of Appeals for the Fifth
Nor, in my view, was the seizure of the liquors invalid because there was no deprivation of the revenue shown. The National Prohibition Act, it is true, prohibits the importation of intoxicating liquor except for nonbeverage purposes, but liquors are still legally importable for industrial uses (section 600, Act Feb. 24, 1919 [Comp. St. Ann. Supp. 1919, §§ 5986e-5986i]), and subject to taxation. U. S. v. Yuginovich, 256 U. S. 450, 41 Sup. Ct. 551, 65 L. Ed. 1043. In this circuit the Sischo Case has been followed, and I am told that failure to produce manifests carrying liquors and unloading outside the three-mile limit has not therefore been deemed a violation of section 2809. But those decisions were rendered before the Santini Case, supra, U. S. v. Bengochea (C. C. A.) 279 Fed. 537, and the Grace and Ruby. The Circuit Court of Appeals for this circuit, in U. S. v. Reed, 280 Fed. 721, substantially stated that, as the Supreme Court had granted a writ of certiorari in the Sischo Case, 43 Sup. Ct. 88, 93, 67 L. Ed.-,-, its term of court would be extended to enable subsequent application for rehearing by the United States if the Supreme Court reversed that decision. This court is unadvised as to the facts upon which those decisions were rendered, no opinion having been written, and I venture therefore to presume that the evidence before me distinguishes them.
The government, however, contends that this proceeding against the cases of liquor is nevertheless maintainable under sections 2806-2809, providing that unmanifested merchandise brought into the United States or within four leagues of the coast is deemed to belong to the master, mate, or crew and subject to forfeiture. The evidence, however, negatives any such ownership or consignment. The ownership of the liquor is not clearly established, though Crossland appears to have sold some of it while aboard the vessel to Schliefer, a druggist. There can therefore be no forfeiture under section 2809, but in my opinion paragraph H applies, and section 2867 also. The liquor was brought to the United States, since the act of the master in making willful delivery of portions of the cargo outside the three-mile limit was related to its introduction into the commerce of the United States. He knowingly participated in the deliveries to evade the customs laws, and moreover the facts and circumstances sufficiently warrant the inference that he intended to attempt to introduce the remaining quantity
Coming, now, more particularly to the important questions urged at the bar relating to the vessel in question: In view of the activities of tire master and schooner in introducing liquor into the commerce of the United States by hovering on the coast and unloading into smaller craft within four leagues of the land, she subjected herself to the jurisdiction of this court and may be proceeded against for forfeiture. Church v. Hubbart, 2 Cranch, 187, 2 L. Ed. 249; The Grace and Ruby. The evidence shows that on the first trip the vessel came near to Savannah with her liquor aboard. She hovered inside of an estuary all night within sight of land, when there was no necessity by stress of weather or otherwise for so doing, and her cargo was unloaded into small boats and transported to the shore. One McCoy, an American, who then was the registered owner, was aboard. The unladen cargo undoubtedly was destined to the United States, with the intention on the master’s part to discharge it near Savannah for deliverance to purchasers, without actually coming to the land or ordinary place of discharge. At Montauk Point she again unloaded her cargo of liquor loaded aboard at the Bahamas, within twelve miles of the coast, and, laying at anchor, remained in touch with the shore, meanwhile receiving instructions with respect to the discharge of the liquor. Again, on another occasion, off Far Rockaway, her cargo of liquor was transferred at sea into small boats about eight or nine miles from shore. At Montauk Point'she came within-the three-mile limit in Fort Pond Bay lying there at anchor about 3 days where supplies were taken to her from the shore. Reference has been made above to her last trip off the Atlantic City coast, the manner in which she was there unloaded, and her seizure. In all the various unloadings the master assisted, and participated in the unloading which constituted a deliverance into the United States for the purpose of evading the statute. Sections 2867 and 2814 prohibited such manner of unloading, and the master was required to produce manifests in writing to the proper officials before doing so. U. S. v. Bengochea (C. C. A.) 279 Fed. 537. In all the recited instances the vessel came within four leagues of the shore, and unloaded unlawfully and without inspection or permission of the constituted authorities, and even though registered as a foreign vessel she cannot be'permitted to deny that she was bound for the United States, and thus render the statutes bearing upon the misconduct of her master innocuous, when he obviously committed frauds upon the revenue.
The government contends that under section 2809 the master incurred a liability in an amount equal to the value of the liquor not manifested. The evidence, however, as heretofore stated, does not satisfactorily show that the merchandise belonged or was consigned to the master, mate, officers, or crew, and therefore the particular penalty prescribed is not thought to apply. Sections 2808, 2809, describing the offense, seem to me, when read together, to limit the omission of merchandise from an existing manifest. The evidence shows that the master refused to produce a manifest on request of the boarding officer,
The eighth cause of forfeiture in the amended libel is therefore not sustained. All other violations alleged in the libels are established by the proofs, and accordingly both vessel and cases of liquor seized are forfeited to the United States.
A decree may be entered, with costs.
