26 F. Cas. 224 | U.S. Circuit Court for the District of Maine | 1824
Upon the first point made at the bar I have no difficulty. If the tonnage and light money, by fraud, accident, or mistake, remained unpaid by the owner, when legally due, my opinion is, that this is a proper form of action to enforce the payment. The general principle was much discussed in U. S. v. Lyman [Case No. 15,647], and to that opinion I delibera tel adhere. It is true, that the act of 1799, c. 128. § 63 [1 Story's Laws, 629; 1 Stat. 675, c. 22]. provides, ‘‘that the duties imposed by law on the tonnage of any ship or vessel shall be paid to the collector, at the time of making entry of such ship or vessel; and it shall not be lawful to grant any jiermit, or unlade any goods &e. whatever from such ship or vessel, until the said tonnage duty is first paid." But this is merely directory to the collector, and no penalty or forfeiture for the non-observance of the provision is inflicted. Surely, it will not be contended, that if the collector should, by mistake, grant a permit to unlade before these duties were paid, it would be so far illegal, as to forfeit the goods or the vessel, within the 50th section of the revenue act of 1799. c. 128 [1 Story's Laws. 617; 1 Stat. 665, c. 22]. To say, that the United States cannot recover duties, not paid to them, by any action, is in effect., to assert that they have rights without a remedy. If there is any remedy, it is an action or information of debt.
The second jioint is, whether the action lies against the consignee of the vessel, or against the owner only. My opinion is, that it lies only against the owner. It is a charge on the vessel itself, and is to be borne by the proprietor thereof. A mere consignee is Dot, in any just sense of law. a general or a special owner. The act of 1790, c. 30, § 1 LI .Stat. 135]. provides, that on all vessels of the United States, &c. Ac.. a certain tonnage duty shall be paid; “and on the other ships or vessels at the rate of 50 cents per ton.” The act of March 27. 1804. c. 57, § 6 [2 Stat. 300], provides, that a duty of 50 cents per ton, to be denominated “light money,” shall be levied a.nd collected in the same manner as tonnage duties, “on all ships and vessels not of the United States, which, after &c:., may enter the ports of the United States." It is clear from these provisions, that the charge is confined to the vessel, and binds the owner; and in no respect applies to the importer of the cargo, or the consignee of the vessel; consequently the court cannot extend the charge to any person but the owner, who, in all cases of this nature is, by implication, personally bound, as the vessel itself is incapable of payment.
The case of Attorney General v. Weeks, Bunb. 223, 224, has been cited in support of a different doctrine. That case turned altogether upon the construction of acts of the British parliament respecting importations. It was an information of debt for nonpayment of duties. One question was, whether, in such an information of debt for duties, any person can be charged but the actual importer. The court held: “That in such a case the person to be charged as importer, must have such an interest in the goods, as to be liable to pay the duties, and it will not extend to a mere agent or servant. But if he is jointly interested with another, the crown may recover the whole against one &c. &c. A factor for a person abroad is in this case undoubtedly liable, because the crown cannot get at the principal; and a factor for a merchant here has some sort of interest in the goods, and has some share and allowance for his factorage, and has a special property in the goods. He is to take the goods and pay the duties, and therefore must be taken to be the importer; aliter, in case of a mere agent or servant.” The most, that can be said of this case, is, that a factor under the British laws is an importer within the sense of those laws, as having a special property in the goods. But a consignee of the vessel has a mere agency, and no spe-' cial property, and therefore is not in the same predicament.
As to the third point, I am of opinion, that the tonnage duties &c., ■ payable on foreign vessels, are not changed by the British treaty of July 3, 1815, or the acts of congress and the president’s proclamation pursuant therein. so far as respects vessels coming from British colonies. The treaty of 1815, putting British vessels, coming into our ports, as to duties and charges, on the same footing as American vessels, extends to vessels coming from European ports, and not to vessels coming from the West Indies, or the British possessions in North America. The act of 1816, c. 107. § 6 [3 Stat. 314], continued the existing tonnage duty: and authorized the repeal of the discriminating duties, tonnage, as well as others, created by that act, in the manner provided by the act of 1815, c. 758 [4 Bior. & D. Laws, 824; 3 Stat. 224, c. 77]. The latter act authorized the president to announce the repeal, when he was satisfied, that the countervailing and discriminating duties of the foreign nation, in whose favour the repeal should apply, were repealed by such nation. The act of May 6, 1822, c. 56 [3 Stat. 681]. authorized the president, by proclamation, to open trade and intercourse with the British colonies under such reciprocal rules
The judgment in the ease of U. S. v. Tuttle is therefore affirmed, as he is a mere consignee, and not an owner; and the judgment in the Case of Hathaway is reversed, and judgment is to be entered for the United States, for the amount of the foreign tonnage duties, &c. Judgment accordingly.
