l1NITEDSTATES
'r. 250
ICBGI!l OIlNAnS.
231
UNITED STATEs
250KEGB oPN'AtL8:'
(Df.strict Oourt, B. D. OatVorn1.a. September 26, Iml 8B:IPPrN(l--oT!tADB BBTWBIlN AMERICAN PORTS,..;FOBBIGN ,VESSELS.
A,',ot Mar,Ch I, 1817, S4" {pow Re,v, St. S 434i l)p"rOhibits, UPde,r pain of forfeiture, the Of merchandise from one American port to another in foreign vessels. ' Act July 18, 1866, (now Rev. St. 58110,) declares that, if any merchandise "shall at any Jlort of the United States,on the northern, northeastern, or northwestern frontIers thereof," be ona foreign vessel, and taken to a fQreign PQrt, thence reshipped toapy other "port of the United States on said fron. tierS, with intent to evade the provisions of the fourth of the act of 1817, Buoh merchandise shall be seized and forfeited. Held, that while it is a palpable eY'$lion of the act of 1811 to ship goods from New York 1;0 Antwerp in a foreign .essel/and thence reship them in another foreign vessel to San Francisco, such , traD8Ilbipment ia not within the prohibitiOD of either act; when ,the twQ are qontl;lgether. '
Libel to Enforce a of Merchandise. M. T. Allen, U. S. Atty. AndM.UJ Frank, Page Eells, and J. H. Shankland, for Ross, District J udge.This is an by the. United StatElf! to enforce. an alleged forfeiture of certain merchandise on the ground that it was transported from one port of the United States to another port therein, in. (oreign bottoms. The answer of the owner of, the property proceeded against admits, the bringing of it into the port of Redondo, in this district, as alleged in libel, and sets up as a defense that the merchandise was wholly of the produce and manQfacture of the United States, and was shipped from New York in the Belgian ship Waesland, consigned' to a commercial house at Antwerp j that it was there discharged andlandedj that subsequently it wall shipped on the British ship, Kirkcudbrightshire, consignEld to ,the respondent at, San Francisco, Cal., and brought to San Francisco, where it was entered as a manufacture of the United States, which had been exported and returned to this country; that, prior to the departure of the ship Waesland from the port of New York, the resp6ndent procured from the collector of customs and naval officer at that port a certificate of the exportation of the merchandise from that port, and that the consignees thereof at Antwerp, prior to the departure of the ship Kirkcudbrightshire, procured from the consul of the United States at that port a certificate that the said merchandise, bound by the said ship Kirkcudbrightshire to the port of Redondo, consisted of articles of the manufacture of the United States which had not been advanced in value or improved in condition by any process of manufacture or other means. The answer further avers that, at the time the merchandise in question was shipped from New York, the respondent intended to export the :same to a ..foreign country,and thereafter to cause the same to be returned to the United Statesj that the merchandise was at aU times the manufacture oftha United States; and that it was, by the respondent and his agents, r& turned to the United States after having been exported, without having beenadvailced in valueodmproved in condit.ion by any proooB$ of
REJ1);aTER,
vol..52.
ufacture or other means. The sufficiency of the defense thus set up i:.; challenged by e;xceptioqs thereto filed on the part of: the government. The libel is based on section 4347 of the Revised Statutes, which reads as fonows: "No merchandise shall be imported, [t1'ansported,] under penalty of for· feiture tnereof. from one port of the United t-tates to another port of the ina vessel belonging wholly or in part to a subject of any forthis sectipn shall not be construed to prohibit the sailing of an,)'foreign vessel from one to port of the United States, provided no other thanthat.imported in such vessel from such foreign port, llhall not have.' been unladen, shall be carried from oue port or pIMa, toallother in the Unite4 S.tates. * * *" . is a re-enacttnent of. the foUrth section of act of March 1, 1:817 It3 St. at Large, p. 351,) entitled" An act concerning the navigation of the United States," It was manifestly passed in the interests in of American shipping, and to prevent foreign ves.sels from domestic commerce. In'1817, when the statute WIts first enacted. the the States wascomparatiyelysmall, and. was confinlld'to the AtlantIc coast.' 1n the course of'llme, however, It assumed larger proportions, and it became an easy thing for foreign vesat a sels t6fuke' ll. cargtl from the United States. touohand Can'adi'arti 'port, then :reload;. and proceed to an Am'ericanport, or, witho: out he'rBelfproceeding, idrwird thEi cargo by another foreign vessel. To pre\l'eht:'thisfrotU being -done, congtess, by section '200£ the act of July 18', .1'866, (14 St. at Large, p. 182 1) enacted that-=: "If any 'goOds, wares, or shall at any portoI' place in the United StaGes. i!ffi.'llhefi0rlhern, northeasternIOl'· northwestern'fi-ontiers thereof, be laden upon.any vesselbelnngingwholJy,or in,part or subjects of afQreign or taken thencetoaforeign port or place to be rela.dep, to anrother portofl,lJace in the United by or any Ather, vessel, foreign or States .on said with to the provisions of the fourth section of the ·Act concernihg' the navigation of the Uriited States/approved MarchI, 1817, the said goods, wares, and merchandise shall, on their arrival at such last· named port or plaoe, be seized andfotfeited to the United States. alld the vessel shall PaY a tonnag.e charge of fi'ftYcents pel' ton On her admeasurement." Section 4 of the actaf March 1, 1817, 'was carried into the Revised 4347iand section 20 of the act of July 18, 1866, Statutes as was therein embodied, in 'Substance, as section 3110. These sections together. It is entirely clear that are in parirnateria" and must be oongress thought.that section 4347 could be evaded by the mode of shipment described in section 3110, and, to prevent such evasion on the northern, northeastern, and northwestern frontiers, enacted the latter section, and attached the consequences of the offenses therein defined, only to themerchltUdise, but to the ship as well. If the act proscribed by section 3110 w..as the same as that prohibited by section 4347, it is difficult to see. the necessity of enacting section 3110 at aU, or any reason for inflicting a penalty on the ship in the one case, and. allowing it togo unpllnis}ied in a precisely.similarcase. Congress evidently recognized that sectton could by so. directing ·thevoyage
THE SARAH.
. 233
that it would not be from one port of the Uniteil States to another port of the United States, and that the prevention sought could not be attained by existing legislation. It consequently made it an offense to evade the provisions of section 4347, under the circumstances set forth in section 3110. As congress thus made the evasion of the provisions of section 4347 an offense under certain defined conditions, the courts cannot say that any other conditions than those thus defined constitute an offense, without departing from the manifest intent of the statute, and usurping the powers of the legislative department of the government. The act of the respondent in the present case was a palpable evasion of the provisions of section 4347 of the Revised Statutes, but it was not the act thereby prohibited. Nor was there any concealment about the transaction, for the respondellt disclosed to the collector of customs all that he had done, producing before him the certificates showing thut he had shipped the goods from New York to Antwerp, and then back to the United States. If suchevljsions as are here shown should be prohibited, it is for oongres!' to prohibit them. It is not for the courts to make the law, or to depart from the intention of the lilwmaking power, as manifested by is. enactments. Merrit v. Welsh, 104 U. S.694j U. S. v. Breed, I SUn'lt 160. Exceptions overruled.
THE S4-RAH.
THE SARAH V. BELLAIB. (OM'cuit Court of 4ppeal8, F-tjth Circuit. June 23, 1892.\
No. 26.
1.
COLLISION-VESSELS ENTIl1:lING CANAL-EvIDENCE.
The steamer Sarah lay, aground next to the pier in thl[l deepest water at the entrance ot the New Basin from Lake Pontcharti'ain to New Orleans, waiting for high water. Afterwards the small schooner Clarke hauled up alongside of her, and made fast. Later a northwest wind blew a full sea into the mouth of the canal, and, both vessels attempting to enter, their bows came in contact, and the schooner was sunk. At the time the schooner was manned only by one seaman and a boy. Held, that the schooner was insufficiently manned; and, on the weight of the evidence, that her stern.linewas cast off, and her stern thrown round by the sea, so as to bring her bow the steamer's side; that she was never even with the steamer's bOWS, and being, therefore, the overtaking vessel, was bound to keep out of the way; that it was immaterial whether the steamer was pushing slowly forward at the time, as it was plain that her motion did not contribute to the injury; and that the s;teamer was not liable.
2.
COSTS Olf ApPEAL-RECORD-IRRELEVANT MATTER.
Where the record contains a vast amount of irrelevant evidence, consisting of the examination and cross-examination·()f witnesses, for which the court cannot apportion the responsibility, the costs of taking and embodying the same in the printed record will be taxed equally to the parties.
Appeal from the District Court of the United States for the Eastern District of Louisiana.
234 .
vol. 52. "
BElllais, owner of, the schooner (the H.Weston Lumber Companyand a. I). .and F.l(och, claimi¥1ts,) for damages for a collision. Decree for Claimallts appeal. 'Reversed. ' Statenlentiby LOCKE, ". . '. . : This is, a. Ca,Se. of .occurrbig'. between the steamer Sarah and the the entrance into the New; Basin canal, tOJhe city of frqm.',Lake Pontchartrain, on the 12th ])ecember,)890. Tbe 19'pening oetpe from the lake is formed and by a ro",,of.. l>trong on the .northward and westward sides,starf:ti,pg from IlElhort distance out in the lake, extending thence and gradually varying to a nearly south course, thus describi:og ,very .nes,trlY the arc of a quadrant before the canal proper il> reached. On the opposite southward or eastward side of ,cllc:ll isThe. when low, is, of insufficient qepth tQ>, that trade through' the canal, ,and . itli10es not aD, u1lusual occurrence fpr them to lie agrouqd; UPOll tbJsplace. On Tuesday, the 10th steiuner Sarah, of a.q9P.t' 40 tons, 80 feet long, loaded with lumber piled on 'deck fore ana'd,'drawing 6 feet 2 inches of water, . arrived at this entrance to the canal, but found so little that it was impossible for her to get in, even alongside the pier piles, or socalled "pickets," sufficiently far to make her stern line fast to them, so she tied up by head lines, and lay hard and fast aground that night, the next day, and the next night. There were several schooners ahead of her, all aground; and after her arrival the Leander Jane, a schooner drawing five and a half feet, came in and lay alongside her. Wednesday evening the schooner 'afterwards injured;, the J. J. Clarke, of about 20 tons, ab,9ut 50 long, and 17 feet beam, drawing 5 feet and 6 inches, loaded with rosin and turpentine, came into therniddle of the canal, and hauled alongside of the .Leander Jane. There was another schooner, the Pippo, lying a little to the southward and westward of the Clarke, in shallow water, hard and. lj:arly.in the morning it commenced to blow heavily from the llQxthwiud. driving a full'sea ftom the lakeil:fto the canal, means of which all of these vessels were driven more orless forward ,their cOUrSe, 'The steamer Sarah succeeded,lnmoving about her as, to, stern lines out piling... The' schooners ahead of her, passed on canal. The Leander Jane, lying alol1gsideof the Sarah, succeeded in pulling in by the Sarah's 'howl and gettillginto the canal. The schooller dlarke attempted to follow the Leander Jane; but libelaBtalleges that the steamer Sarah pusbed into an<iupon her" great damage and injury to her, and causing her to sink and-beCOme a total In answer to this th'e olairiiarits of the steam¢:r that at the time of the collision she was lying aground, tied to the piling of the side of the canal, an<l"by;r;eaagno( the alldsea, the schooner 'Yas driven and worked up against her, by which meiins the damage was done, withoqt
In
'-on
TRE SAltAR. '
235
Any fault on the part :of the steamboat Sarah or those in of her. Whichever way it was·done,· the schooner Clarke and steamboat Sarah came together, so that the bowsprit and stanchions of the former were broken, her knightheads and plank-sheer started and raised, and she so damaged that she sank and became a total loss. Suit was brought by the owner of the schooner, and the court below gave a decree for the libelant, from which this appeal has been taken. R. L. TuUis, Wm. Grant, and John D. Rouse, for appellants. John D. Grace, for appellee. Before PARDEE and MCCORMICK, Circuit Judges, and LoCKE, District Judge. I.ocKE, District Judge, After stating the facts, delivered the opinion of the court: There are but few questions of fact in this case and none of law; the telative positions of the vessels previous to the collision and their movements determining the rights of either the one or the other of the parties. Unquestionably, in cases of inevitable or unavoidable accident by collision or otherwise, the damage and loss must rest where it falls. In ordinary cases it is a well-known rule that steam vessels must give way and look out for sailing vessels, and the presumption in cases of collision between such vessels is that the steamer is in Jault, but such presumption may be overcome by evidence of the .circumstances of the individual case showing that such is not the .fact. One question upon which there has been much conflicting testimony, and which is deemed of considerable irnportancein the case, is as to where, at the entrance of the canal, the channel was 'located,-whether in the middle, as alleged by libelant, or along the' northerly and westerly side, as is urged by claimants. The term "channel" is properly applied to the portion of the bed of a river or canal which furnishes uninterruptedly through its course the d'eepest water, and the fact that the steamer Sarah, drawing eight inches more of water than the schooner,was able to get in alongside of th!! piling on the side at all, while the schooner, while lying with her stern in about the middle of the canal, and her bow towards the Sarah, was aground as to her stem, but afloat as to bow, shows conclusively that at that time, at least, the greatest depth of water was on the side where the steamer was lying, and that must be accepted as the channel, and it be considered that the steamer was properly' in it. Upon the arrival of the schooner Clarke at the mouth of the canal on Wednesday evening, her crew consisted of the master, one seaman, and 1.\ boy. The master came into the city, and had not returned at the time of the collision, leaving the one seaman and the boy the only' ones on board to bring the schooner in,--an insufficient crew for a vessel of her size, and particularly so,coIlsidering the crowded condition of the canal. It al80appears that at the 'commencement of the collision, when the steamer Louisiana desired to take a line to tow her out of danger, they had w nnreave one of the halliards to use as a tow line, which, beinJr
Z3tt
FEDERAL REP(jllTE,I!-i' ,vol.
52.
of il1$,ufficient strength, failed to accomplish W,hat wpuld otherwise probably have saved her,. The schooner, therefore, seems to have been insufficiently furnished with both crew and lines. According to the uncontradicted testimony of libelant's witnesses, just before the collision occurred the steamer Sarah, which arrived first, was in the deepest water alongside the piling. The Leander Jane, drawing a little less water,had managed to pull in by the stearner'A bows, and had gone on her way into the canal; and the schooner Clarke was lying alongside the Sarah, with her stern about 10 feet forward oLtha'Sarah's stern l and her bow consequently about 20 feet abaft of the Sarah's bows, made fast with head and stern lines, the latter fast on board theSarah. How the head lines were made fast does not appear; they had had on6 line made f""st to the LeaqqllrJane, but this was cast off when she got under way. From this point the testimony becomes conflicting. Fred Heidenstroll1, in charge of the Clarke, in his testimony says that they had two, lines ashore, One from the head and one from the stern; one line ashor,eonthe.steamqoat Sarah ;an<,l they had to turn their stern line loose, "being thltt the Sarah wantedto come in, and that threw us aoross the caannel alQngside the Sarah"and the Sarah pushed ahead and kept on breaking iV' He says that she and struolr our open, broke the knighthead and a few stanchions, and broke the off, so that she began to leak. William Bellais, raised the the boy on bOll(rd, says that the Clarke's bowsprit struck the end of the luLIlber pile forward; thltt the Sarah struck the Clarke by steaming ahead; that toe Clarke's stern was aground, but her bow was afloat; that the Sarah hit her a couple of times by steaming ahead. These are the only witnesses who olp.iql to have seen the collision, and say that it was done by the Sarah running into or against the Clarke. On the other hand, the testimony of the master; the engineer. and two Seamen of the. Sarah; Djies, master of the schooner Boyd, master of the schooner Laura L.;' George Long, a witness standing on the platform at the Soutberu Yacht Club House, but a few yards distant from th place of Qollision, as well as the statement of Heidenshom himself, in regard .to the position. of bis vessel prior to the collision,-satisfies us, by an overwhelming prep()nderance, that the Sarah was holding onto the piling by lines; that she WaS so hard aground that she was unablfl to changa her positionwitb any degree of rapidity, if at all; that the schooner was nexer ll-head of, nor up even with l thesteamerj and that the damage was done by casting off the stel'D line of the schooner, -thus Permitting tpe stern to bEldriven around by the wind and sea, bringing the bowsprit and stem against the broadside of tile lumber piled upon . the. steamer's deck. We do notcoIl.sidel' :JiIlaterialwhethel,' or n{)t thes,teamer may have pushing Idong slowly forward the canal either by force of the wind and sea" by heavil}g on Hnes,oI' eveqby her steam power I as her bow was .at all tiqles Bthead of the bow of the schooner, and what slight no way have changed the final motion she appears tonal/ehad result. We are satisplld,the damage was done by the schooner beating
mE OITYOI'BT. AUGUSTIn;
237
herself against the steamer by the force of the 'wind and sea, rather than by any movement of the steamer. We do not find that there was any action on the part of those in charge of the steamer that resulted in the injury to the schooner, or that they could possibly have done anything to prevent or mitigate the loss does not appear. The steamer was the first vessel properly in the channel, and the schooner the overtaking vessel trying to get past. It will necessarily follow, therefore, that the decree of the court below must be reversed, but, in the taxation of costs, we do not consider that there should be taxed as legitimate costs in the case the taking and embodying in the record the vast am:mnt of irrelevant and immaterial matter of examination and cross-examination of witneBBes, swelling the record to nearly 200 printed pages, for which!Ve cannot apportion the responsibility. It is therefore ordered that the case· be ra-. manded to the court. below, with instructions to dismiBB the libel, and tax the ooati equally .against the parties.
THE CITY OF ST. AUGUSTINB. THE NORMAN.
HENDERSON
et ale
11. THE CITY OF ST. AUGU8TINlL
ST.
AUGUSTINE
S. S. Co. ".
et aL
(.DI.Btrl.ctCourt, B. D. Nf/ID Yor1c.
July 12, 1899.)
Oou.IIlION-8TEUI AND BAIL-lI'AILURE TO ALLow BUPFICIENT MARGIN POll
SAPlIft. The steamer of St. A., bound S. W. W., saw the green light of the schoon· er Norman a little on her starboard bow. The red light of the schooner afterWl1.rds became visible to the steamer, which thereupon altered her course to starboard so as to bring the red light on her port bow. Afterwards the schooner'. green light appeared again, and the steamerstarboaroed further, but collided with the sailing vessel. Her excuse was that the sailing vessel had not held her course. On evidence, and regarding the schooner's narrative as better confirmed by the proof, the court found that, with the exception of a change in extremis, the course .of the BChooner had not been altered, and that the fault which brought about the collision was that the steamer did not make allowancll for the usual and necessary variation in tbe course of the schooner, or her changes of lights through leeway and the of her and, consequently, did not allow a sufficient margin for passing the BChooner, which ahe Wall bound toa.void. Hel4. that the steamer was alone liable for the coUialoD.
In Admiralty.
Wilcoo:, Adams &: Green, for the City of St. Augustine. BROWN, District Judge. At about half paet 1 o'clock in the morning of November 25, 1891, the schooner Norman of 367 tons, loaded with a cargo. of lumber, bound from Savannah to Baltimore, and then heading about northeast, came. in collision oft· the coast of North Caro-
Wing, Slwudy &: Putnam, for Henderson and othen.
Cross li.bels for collision.