The Alta

136 F. 513, 69 C.C.A. 289, 1905 U.S. App. LEXIS 4480

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 1905
• Docket: No. 1,102
• Status: Published

Opinion

ROSS, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

Section 4219 of the Revised Statutes [U. S. Comp. St. 1901, p. 2848] provides as follows:

“Sec. 4219. (Upon vessels which shall be entered at any custom-house In the United States, from any foreign port or place, there shall be paid the respective duties following: On vessels of the United States, thirty cents a ton; on vessels built within the United States, but belonging wholly or in part to subjects of foreign powers, sixty cents per ton; on foreign vessels entered in the United States from any foreign port to and with which vessels of the United States are not ordinarily permitted to enter and trade, two dollars and thirty cents per ton; on other vessels, thirty cents per ton: provided, that the President of the United States shall be satisfied that the discriminating or countervailing duties of any foreign nation to which such vessels belong, so far as they operate to the disadvantage of the United States, have been abolished; otherwise, eighty cents per ton: and provided, that nothing in this section shall impair any rights or privileges which have been or may be acquired by any foreign nation, under the laws and treaties of the United States, relative to the duty of tonnage on vessels.) (Upon vessels which shall be entered in the United States from any foreign port or place there shall be paid duties as follows: On vessels built within the United States but belonging wholly or in part to subjects of foreign powers, at the rate of thirty cents per ton; on other vessels not of the United States, at the rate of fifty cents per ton. Upon every vessel not of the United States, which shall be entered in one district from another district, having on board goods, wares, or merchandise taken in one district to be delivered in another district, duties shall be paid at the rate of fifty cents per ton. Nothing in this section shall be deemed in any wise to impair any rights or privileges which have been or may be acquired by any foreign nation under the laws and treaties of the United States relative to the duty of tonnage on vessels. On all foreign vessels which shall be entered in the United States from any foreign port or place, to and with .which vessels of the United States are not ordinarily permitted to enter and trade, there shall be paid a duty at the rate of two dollars per ton; and none of the duties on tonnage above mentioned shall be levied on the vessels of any foreign nation if the President of the United States shall be satisfied that the discriminating or countervailing duties of such foreign nations, so far as they operate to the disadvantage of the United States, have been abolished. In addition to the tonnage-duty above imposed, there shall be paid a tax, at the rate of thirty cents per ton, on vessels which shall be entered at any custom-house within the United States from any foreign port or place; and any rights or privileges acquired by any foreign nation under the laws and treaties of the United States relative to the duty of tonnage on vessels shall not be impaired; and any vessel any officer of which shall not be a citizen of the United States shall pay a tax of fifty cents per ton.)”

The above section was amended by section 14 of the act of Congress of June 26, 1884, c. 121, 23 Stat. 57 [U. S. Comp. St. 1901, p. 2850], as follows:

“Sec. 14. That in lieu of the tax on tonnage of thirty cents per ton per annum heretofore imposed by law, a duty of three cents per ton, not to exceed in the aggregate fifteen cents per ton in any one year, is hereby imposed at each entry on all vessels which shall be entered in any port of the United States from any foreign port or place in North America, Central America, the West India Islands, the Bahama Islands, the Permuda Islands, or the Sandwich Islands, or Newfoundland; and a duty of six cents per ton, not to exceed thirty cents per ton per annum, is hereby imposed at each entry upon all vessels which shall be entered in the United States from any other foreign ports: provided, that the President of the United States shall suspend the collection of so much of the duty herein imposed, on vessels entered from any port in the Dominion of Canada, Newfoundland, the Bahama Islands, the Bermuda Islands, the West India Islands, Mexico and Central America down to and including Aspinwall and Panama, as may be in excess of the tonnage and light house dues, or other equivalent tax or taxes, imposed on American vessels by the government of the foreign country in which such port is situated and shall upon the passage of this act, and from time to time thereafter as often as it may become necessary by reason of changes in the laws of the foreign countries above mentioned, indicate by proclamation the ports to which such suspension shall apply, and the rate or rates of tonnage duty if any to be collected under such suspension. And provided further, that all vessels which shall have paid the .tonnage tax imposed by section forty-two hundred and nineteen of the Revised Statutes for the current year, shall not be liable to the tax herein levied until the expiration of the certificate of last payment of the said tax. And sections forty-two hundred and twenty-three and forty-two hundred and twenty-four and so much of section forty-two hundred and nineteen of the Revised Statutes as conflicts with this section, are hereby repealed.”

The last-mentioned section was so amended by section 11 of the act of June 19, 1886, c. 421, 24 Stat. 81 [U. S. Comp. St. 1901, p. 2850], as to read as follows:

“Sec. 11. That section fourteen of ‘An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying-trade, and for other purposes,’ approved June twenty-sixth, eighteen hundred and eighty-four, be amended so as to read as follows:

“ ‘Sec. 14. That in lieu of the tax on tonnage of thirty cents per ton per annum imposed prior to July first, eighteen hundred and eighty-four, a duty of three cents per ton, not to exceed in the aggregate fifteen cents per ton in any one year, is hereby imposed at each entry on all vessels which shall be entered in any port of the United States from any foreign port or place in North America, Central America, the West India Islands, the Bahama Islands, the Bermuda Islands, or the coast of South America bordering on the Caribbean Sea, or the Sandwich Islands, or Newfoundland; and a duty of six cents per ton, not to exceed thirty cents per ton per annum, is hereby imposed at each entry upon all vessels which shall be entered in the United States from any other foreign ports, not, however, to include vessels in distress or not engaged in trade: provided, that the President of the United States shall suspend the collection of so much of the duty herein imposed, on vessels entered from any foreign port, as may be in excess of the tonnage and lighthouse dues, or any other equivalent tax or taxes, imposed in said port on American vessels by the government of the foreign country in which such port is situated, and shall, upon the passage of this act, and from time to time thereafter as often as it may become necessary by reason of changes in the laws of the foreign countries above mentioned, indicate by proclamation the ports to which such suspension shall apply, and the rate or rates of tonnage-duty, if any, to be collected under such suspension: provided, further-, that such proclamation shall exclude from the benefits of the suspension herein authorized the vessels of any foreign country in whose ports the fees or dues of any kind or nature imposed on vessels of the United States, or the import or export duties on their cargoes, are in excess of the fees, dues, or duties imposed on the vessels of the country in which such port is situated, or on the cargoes of such vessels; and sections forty-two hundred and twenty-three and forty-two hundred and twenty-four, and so much of section forty-two hundred and nineteen of the Revised Statutes as conflicts with this section, are hereby repealed.’ ”

By section 3 of the act of March 8, 1902, c. 140, 32 Stat. 54 [U. S. Comp. St. Supp. 1903, p. 349], Congress enacted:

“That on and after the passage of this act the same tonnage taxes shall be levied, collected, and paid upon all foreign vessels entering into the United States from the Philippine Archipelago which are required by law to be levied, collected, and paid upon vessels entering into the United States from foreign countries. * * *”

It is, we think, quite manifest from the foregoing statutory provisions, that the tonnage tax there provided for is only to be levied on foreign vessels, or vessels coming from some foreign port or place. That the barkentine in question is not “a vessel of the United States” within the meaning of its statutes, is clear, for section 4131 of the Revised Statutes [U. S. Comp. St. 1901, p. 2803] in terms declares that:

“Vessels registered pursuant to law, and no others, except such, as shall be duly qualified, according to law, for carrying on the coasting trade and fisheries, or one of them, shall be deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels; but they shall not enjoy the same longer than they shall continue to be wholly owned by citizens and to be commanded by a citizen of the United States. And officers of vessels of the United States shall in all cases be citizens of the' United States.”

“A vessel of the United States” therefore means more than a vessel whose nationality is American. It means such a vessel as is defined in section 4131 of the Revised Statutes, and no other. According to the averments of the libel itself, the barkentine Alta was not entitled to register here, for section 4132 of the Revised Statutes [U. S. Comp. St. 1901, p. 2805], provides:

“Vessels built within the United States, and belonging wholly to citizens thereof, and vessels which may be captured in war by citizens of the United States, and lawfully condemned as prize, or which may be adjudged to be forfeited for a breach of the laws of the United States, being wholly owned by citizens, and no others, may be registered as directed in this title.”

But while the Alta was not “a vessel of the United States,” as spoken of and defined in its statutes, she was an American vessel because of the nationality of her owner. The Merritt, 17 Wall. 585, 21 L. Ed. 682; United States v. Jenkins, 26 Fed. Cas. 603; The San Jose Indiano, 2 Gall. 268, Fed. Cas. No. 12,322; 25 Am. & Eng. Encyc. of Law (2d Ed.) pp. 863, 864. Having come from Manila, which is not a “foreign port or place” (The Diamond Rings Case, 183 U. S. 176, 22 Sup. Ct. 59, 46 L. Ed. 138), the Alta was not subject to the tonnage tax prescribed by section 4219 of the Revised Statutes, as amended by the acts of 1884 and 1886, and, not being a foreign vessel, she was not subject to the tax prescribed by section 3 of the act of March 8, 1902, above quoted. Even if she could be regarded as a British vessel, by .reason of the fact that she was built in Scotland, she would be exempt from the tonnage tax here claimed by the government because of that provision of the treaty between the United States and Great Britain of July 3, 1815, providing that:

“No higher or other duties or charges shall be imposed in any of the ports of the United States on British vessels than those paid in the same ports by vessels of the United States; nor in the ports of any of His Britannic Majesty’s territories in Europe, on the vessels of the United States, than shall be payable in the same ports! on British vessels.”

The contention that the government was entitled to light money under the provisions of section 4225 of the Revised Statutes [U. S. Comp. St. 1901, p. 2855] is not, in our opinion, well founded, in view of the facts shown by the pleadings. That section declares:

“A duty of fifty cents per ton, to be denominated ‘light money,’ shall be levied and collected on all vessels not of the United States, which may enter the ports of the United States. Such light-money shall be levied and collected in the same manner and under the same regulations as the tonnage duties.”

But the next section (Rev. St. § 4226 [U. S. Comp. St. 1901, p. 2855]) provides that:

“The preceding section shall not be deemed to operate upon unregistered vessels, owned by citizens of the United States, and carrying a sea-letter, or other regular document, issued from a custom-house of the United States, proving the vessel to be American property.”

It is true that the last-mentioned section proceeds to declare that:

“Upon the entry of every such vessel from any foreign port, if the same shall be at the port at which the owner or any of the part owners reside, such owner or part owners shall make oath that the sea-letter or other regular document possessed by such vessel contains the name or names of all the persons who are then the owners of the vessel; or if any part of such vessel has been sold or transferred since the date of such sea-letter or document, that such is the case, and that no foreign subject or citizen has, to the best of his knowledge -and belief, any share, by way of trust, confidence, or otherwise, in such vessel. If the owner or any part owner does not reside at the port or place at which such vessel shall enter, then the master shall make oath to the like effect. If the owner or part owner, where there is one, or the master, where there is no owner, shall refuse to so swear, such vessel shall not be entitled to the privileges granted by this section.”

It is true that the proof of the facts exempting the Alta from light money was not made by her owner or master at the time of her entry at Port Gamble, but such proof was made to the collector of that port within a few days after such entry, and was shown to the court below; which, in our judgment is sufficient. As said by Judge Benedict in the case of The Miranda (D. C.) 47 Fed. 815, the intent of section 4226 of the Revised Statutes is that the fact that the vessel is American property shall exempt her from liability to pay light money; and in reply to a similar objection made in that case Judge Benedict further said:

“The law is complied with if tbe fact be shown to the collector by any competent evidence. Moreover, the fact has been duly proved before the court in this case, and is not denied. How can this court be asked to condemn this vessel to pay light money, in face of the fact proved that she is an unregistered vessel, owned by a citizen of the United States, when the declaration of section 4226 is that such a vessel so owned is not liable to pay light money?”

That the government was entitled to the 6 per cent, tax imposed by the act of June 19, 1886, amounting to $77.34, is conceded by the appellee ; but, as the same concession was made in the appellee’s answer, the modification of the judgment which must be made should be without costs to the appellant.

The judgment will be so modified as to award the government the $77.34, without costs, and, as so modified, it will stand affirmed.