United States v. The Paryntha Davis

1 Cliff. 532 | U.S. Circuit Court for the District of Maine | 1860

CLIFFORD, Circuit Justice.

Forfeiture of the vessel is claimed under the thirty-second section of the act of the 18th of February, 1793. Omitting all such parts of the section as are inapplicable to this ease, it provides, in effect, that if any licensed ship or vessel shall be employed in any other trade than that for which she is licensed, every such ship or vessel, with her tackle, apparel, and furniture, and the cargo found on board her, shall be forfeited. 1 Stat 316. As shown by the proofs, she was engaged in the mackerel-fishery, and it is insisted, on behalf of the United States, that the mackerel-fishery is an employment other than that for which she is licensed, within the meaning of the act of congress upon which the proceeding is founded. But it is objected by the appellants that the allegations of the libel are insufficient to support a decree of forfeiture, because it does not specify the particular trade in which the schooner was engaged at the time of the seizure. But it is quite obvious that the objection cannot be sustained. Technical rules of pleading are not so much regarded in libels of this description as in indictments and in-formations at common law. Where there are no technical words or phrases employed in the prohibition of the statute, it is sufficientj as a general rule, to bring the case within the words of the act of congress on which the information is founded. Repeated decisions have established that rule of pleading in cases of this description, and it is undoubtedly correct. The Samuel, 1 Wheat. [14 U. S.] 9; The Hoppet, 7 Cranch [11 U. S.] 389; The Merino, 9 Wheat [22 U. S.] 401. No such objection was taken in the district court, and I am of the opinion it cannot prevail, especially after appearance and answer to the merits.

Looking at the testimony of the claimants alone, it would not be possible to hold that the crew were in good faith pursuing the business for which the schooner was licensed, and, when taken in connection with the testimony of the boarding officers, it clearly shows that the conclusion reached by the district court was correct. But it is insisted by the claimants that none of the parol evidence was admissible, except that offered to prove what the employment of the vessel was at the time and place as alleged in the libel. Two answers may be given to that objection, either of which is sufficient to show that it cannot be sustained: 1. All the evidence in the case as to what was done during the trip was introduced by the claimants, and clearly they cannot now object to testimony introduced in their own behalf. 2. Another answer, however, may be given to the objection, which perhaps will be more satisfactory; and that is, that the testimony would have been admissible if it had been offered by the government and seasonably objected to by the claimants.

As alleged in the libel, the charge is, that, prior to the seizure, to wit, at Portland on the 10th of October, 1857, the schooner was a vessel of the United States, duly enrolled and licensed to be employed in carrying on the cod-fishery, and that she was then and there employed in a trade other than that for which she was licensed. Whether that charge is true or not depends upon what had been done during the trip, and obviously evidenee to show what had been done was admissible to make out the charge or to establish the defence. Unless the rule was so, it might be impossible to administer justice, as any evidence that could be offered as to what had been done on a given day might, and in all probability would, be unsatisfactory. Correct pleading requires that time and place should be specifically alleged, and if prior acts during the same trip should be held to be inadmissible, great injustice might be done. Without stopping to cite authorities to this point, suffice it to say that I am clearly of the opinion that on principle the objection is without merit. Lastly, it is insisted by the claimants that the catching of mackerel is not a trade other than that for which the schooner was licensed. It is a sufficient answer to this objection, to say that the rule of law as understood in this court is settled otherwise. Judge Ware held, in the case of The Nymph [Case No. 10.389], that since the act of the 24th of May, 1S2S, a vessel licensed for the cod-fishery is not authorized by her license to engage in the mackerel-fishery, because that act requires a distinct license for that business. 4 Stat 312. That case was appealed to the circuit court, and after a very deliberate consideration, the decree of the district court was affirmed. Until the mackerel-fishery was, by the act of congress, separated into a distinct employment, says Judge Story in a later case, it was frequently carried on in common with, and as an incident to, the cod-fisheries; and he adds, somewhat unguardedly, that no one can now doubt that mackerel may still be caught in the cod-fisheries, if it be not so' pursued as to supersede the principal employment, but is a mere accessory or incidental business. While it must be admitted that the closing paragraph of the sentence is rather broader than the rule laid down in the previous case, still it must be weighed in connection with the residue of the opinion, and, when so read and understood, the two opinions are entirely consistent. The Harriet [Case No. 6.009].

Undoubtedly a vessel licensed for the cod-fishery may take mackerel for bait and for consumption by the crew, as provisions during the trip; and as fresh mackerel make the best bait, the crew may take them as frequently and in such quantities as it may be reasonably necessary for them to do for those purposes; and where it appears that they pursued the proper business for which the vessel was licensed, in good faith, and on the return of the vessel, or at the time of her seizure, have only such quantity of mackerel on hand as may reasonably be inferred from the circumstances to have been taken in the fair exercise of that legitimate right, the law does not authorize the forfeiture of the vessel because there happens to be some excess. They must pursue the proper business for which the vessel is licensed, and in exercising the incidental right of taking mackerel for bait and for consumption by the crew, they must act reasonably and in good faith. Such in effect is the rule laid down by the two learned judges in the cases already cited, and I am of the opinion that it is correct. Reference is made by the counsel of the claimants to the case of The Reindeer [Id. 16.145], as asserting a more liberal doctrine, and it cannot be denied that there are some expressions to be found in that opinion which afford some countenance to the argument. But it does not purport to overrule the prior decisions upon the subject, and until the question is revised by the supreme court, I consider myself at liberty to adopt the earlier and, as I think, the better construction of the act of congress. The decree of the district court is therefore affirmed with costs.