Thames & Mersey Marine Ins. v. United States

S.D. New York

Thames & Mersey Marine Ins. v. United States

217 F. 683, 1914 U.S. Dist. LEXIS 1539

DecidedJune 17, 1914

StatusPublished

This text of 217 F. 683 (Thames & Mersey Marine Ins. v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thames & Mersey Marine Ins. v. United States, 217 F. 683, 1914 U.S. Dist. LEXIS 1539 (S.D.N.Y. 1914).

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Opinion

HAND, District Judge

(after stating the facts as above). The policies of marine insurance in this case may be viewed from two quite separate aspects: First, as necessary incidents of the business of exporting ; and, second, as exports themselves, by virtue of the allegation that they were sent along with the bills of lading and the drafts to foreign ports, Fairbank v. United States, 181 U. S. 283, 21 Sup. Ct. [684]*684648, 45 L. Ed. 862, decided that a tax on a bill of lading was within the prohibition, and the same with respect to manifests was conceded in United States v. N. Y. & Cuba Mail S. S. Co., 200 U. S. 488, 26 Sup. Ct. 327, 50 L. Ed. 569. In Judge Noyes’ decision the same ruling was applied to charter parties. Almy v. California, 24 How. 169, 16 L. Ed. 644, applied the same rule to the taxation by a state of bills of lading of gold and silver exported from the state. These cases extend the meaning of the clause beyond the taxation of the exported goods themselves, to the documents which contain the contracts of carriage or the evidence that they are being carried. A marine policy is neither of these; it is a contract to pay a sum of money in the event of their loss, and does not concern their carriage in any respect, except that it presupposes that the exportation will take place. The true rule seems to me to be that the taxation of only such contracts is forbidden as involve in their performance some part of the movement of the exports out of the country, or of such documents as record that movement. The goods themselves do not become exports until their movement begins, Cornell v. Coyne, 192 U. S. 418, 24 Sup. Ct. 383, 48 L. Ed. 504, and it would seem by analogy that documents recording transactions which touch them should not fall within the clause unless the recorded transactions were a part of the same movement, or at least called for it in .their complete execution if they were promissory in character. I should regret to base the distinction upon whether the transaction directly or indirectly affected exportation, for that involves a kind of casuistry which generally proves very troublesome in application and conceals the real ground of the decisions.

Nor can I accept the test of whether the tax burdens exportation, provided that the burden is only a part of what goods of the same class bear while within the country. To this Cornell v. Coyne, supra, is a distinct answer, and shows that any language in Fairbank v. U. S., supra, to the contrary was not meant to apply universally. A tax upon articles generally, though some of them may be exported, may have a final economic incidence upon the export, but only along with the rest of its class, and is certainly not what the Constitution was aiming at. Whether such a tax as this, levied only upon policies insuring exports, would be within the clause is quite another matter. To impose burdens upon exports even in such a roundabout way which other goods do not bear may well be within the clause. Coe v. Errol, 116 U. S. 517, 526, 6 Sup. Ct. 475, 29 L. Ed. 715.

In passing I may state that I cannot regard the cases relied upon by the United States and holding that the usual insurance .business is intrastate as at all in point. None of those cases involved the insurance of goods in interstate commerce, and Congress may well have control oyer such contracts. The grant of power over interstate commerce is not to be confused with the clause here in question.

There remains the question of whether the insurance policies as documents are themselves exports. This contention is answered by the second reason given fbr the decision in Turpin v. Burgess, 117 U. S. 504, 6 Sup. Ct, 835, 29 L. Ed. 988, and by the decision in Cornell v. .Coyne, supra, holding that the eventual destination of goods did not make them exports until they began to move. In the case at bar, [685]*685though the policies were all along destined for export, the stamps were affixed before they were issued. After delivery, they were sent by the assured, along with the other documents, to foreign countries, but until that time they could, at any time, be recalled, and they remained a part of the general mass of goods in the country.

The demurrer is sustained, and unless the plaintiff amends within 10 days, judgment will be entered dismissing the complaint upon the merits.

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HAND, District Judge

(after stating the facts as above). The policies of marine insurance in this case may be viewed from two quite separate aspects: First, as necessary incidents of the business of exporting ; and, second, as exports themselves, by virtue of the allegation that they were sent along with the bills of lading and the drafts to foreign ports, Fairbank v. United States, 181 U. S. 283, 21 Sup. Ct. [684]*684648, 45 L. Ed. 862, decided that a tax on a bill of lading was within the prohibition, and the same with respect to manifests was conceded in United States v. N. Y. & Cuba Mail S. S. Co., 200 U. S. 488, 26 Sup. Ct. 327, 50 L. Ed. 569. In Judge Noyes’ decision the same ruling was applied to charter parties. Almy v. California, 24 How. 169, 16 L. Ed. 644, applied the same rule to the taxation by a state of bills of lading of gold and silver exported from the state. These cases extend the meaning of the clause beyond the taxation of the exported goods themselves, to the documents which contain the contracts of carriage or the evidence that they are being carried. A marine policy is neither of these; it is a contract to pay a sum of money in the event of their loss, and does not concern their carriage in any respect, except that it presupposes that the exportation will take place. The true rule seems to me to be that the taxation of only such contracts is forbidden as involve in their performance some part of the movement of the exports out of the country, or of such documents as record that movement. The goods themselves do not become exports until their movement begins, Cornell v. Coyne, 192 U. S. 418, 24 Sup. Ct. 383, 48 L. Ed. 504, and it would seem by analogy that documents recording transactions which touch them should not fall within the clause unless the recorded transactions were a part of the same movement, or at least called for it in .their complete execution if they were promissory in character. I should regret to base the distinction upon whether the transaction directly or indirectly affected exportation, for that involves a kind of casuistry which generally proves very troublesome in application and conceals the real ground of the decisions.

Nor can I accept the test of whether the tax burdens exportation, provided that the burden is only a part of what goods of the same class bear while within the country. To this Cornell v. Coyne, supra, is a distinct answer, and shows that any language in Fairbank v. U. S., supra, to the contrary was not meant to apply universally. A tax upon articles generally, though some of them may be exported, may have a final economic incidence upon the export, but only along with the rest of its class, and is certainly not what the Constitution was aiming at. Whether such a tax as this, levied only upon policies insuring exports, would be within the clause is quite another matter. To impose burdens upon exports even in such a roundabout way which other goods do not bear may well be within the clause. Coe v. Errol, 116 U. S. 517, 526, 6 Sup. Ct. 475, 29 L. Ed. 715.

In passing I may state that I cannot regard the cases relied upon by the United States and holding that the usual insurance .business is intrastate as at all in point. None of those cases involved the insurance of goods in interstate commerce, and Congress may well have control oyer such contracts. The grant of power over interstate commerce is not to be confused with the clause here in question.

There remains the question of whether the insurance policies as documents are themselves exports. This contention is answered by the second reason given fbr the decision in Turpin v. Burgess, 117 U. S. 504, 6 Sup. Ct, 835, 29 L. Ed. 988, and by the decision in Cornell v. .Coyne, supra, holding that the eventual destination of goods did not make them exports until they began to move. In the case at bar, [685]*685though the policies were all along destined for export, the stamps were affixed before they were issued. After delivery, they were sent by the assured, along with the other documents, to foreign countries, but until that time they could, at any time, be recalled, and they remained a part of the general mass of goods in the country.

The demurrer is sustained, and unless the plaintiff amends within 10 days, judgment will be entered dismissing the complaint upon the merits.

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