United States v. Open Boat

27 F. Cas. 346, 5 Mason C.C. 120

• Court: U.S. Circuit Court for the District of Maine
• Decided: October 15, 1828
• Status: Published

Opinion

STORY, Circuit Justice.

This is a libel of I seizure founded on the acts, prohibiting commercial intercourse with the British colonial possessions, of the fifteenth of May, 1820, [3 Story’s Laws, p. 1800 (3 Stat. 602, c. 122)], and the first of March, 1823, c. 150 [3 Story’s Laws, 1893 (3 Stat. 740, c. 22)), as put into operation by the president’s proclamation of the 17th of March, 1S27. The questions raised in the case depend upon the true construction of these acts, and upon the conformity of the libel thereto, so as to present the point of forfeiture. The act of 1820 provides, that “after the 30th of September, then next, the ports of the United l States shall be and remain closed against every vessel, owned wholly, or in part, by a subject or subjects of his Britannic majesty, coming or arriving by sea from any port or place in the province of Lower Canada, or coming or arriving from any port or place in the province of New Brunswick,” &c. And it then proceeds to declare, that “every such vessel so excluded from the ports of the United States, that shall enter or attempt to enter the same, in violation of this act, shall, with the cargo on board such vessel. be forfeited to the United States.”

The first remark, which I would make on this clause is, that it inflicts no forfeiture upon an excluded vessel, unless she enters, or attempts to enter some port of the United States; and it is, therefore, necessary that the libel should, in substance, contain an allegation of such entry, or attempt, before the court can pronounce a decree of condemnation, however clearly the facts may be made out. Now, the first count in the libel, which alone touches this statute, contains no such allegation. It merely affirms, that “the vessel or boat aforesaid was a vessel, owned wholly or in part by a subject or subjects of his Britannic majesty, and came and arrived by sea from some port or place in the province of New Brunswick, to the at-tomey unknown, within the port of East-port aforesaid, contrary to the form of the statutes,” &c. This is not an allegation in strict conformity with the words of the statute. The words “arrive” and “enter” are not always synonymous, and there certainly may be an arrival, without an actual entry, or an attempt to enter. Perhaps an arrival within a port, cannot be without an entry into the port. But still, it seems to me, that courts of law are not to inflict forfeitures, without the substantial phrases of the statute being used. And I am by no means sure, that the court would be warranted in giving judgment, where the words departed so widely from those of the statute. It would seem inconsistent with the rules usually adopted in the administration of penal laws. This point, however, is less important, because the libel is open to amendment; though the strong inclination of my opinion is, that without an amendment no condemnation could be pronounced, if the case were ever so clearly in favour of the government. The coming or arriving by sea is confined, by the immediately succeeding words, to Bower Canada, and any coming or arriving is prohibited from New Brunswick, whether by sea or otherwise. In this respect, I adopt the criticism of the district attorney as well founded. This informality in the allegation is no otherwise important, than that it ties up the ease to narrower evidence, than the act itself requires.

The important question however is. whether the facts present a case within the real scope and operation of the statute. The facts are these. The owners of the boat are, and have been for several years inhabitants of Eastport, and have with their families a bonk fide domicil there. The boat itself is less than five tons in burthen, is open and without any deck, and her home also is admitted to be Eastport. The owners are British bom subjects, and have not, so far as any evidence exists in the record, changed their national allegiance. At the time of the seizure, the boat had on board 2S barrels of tar and pitch, and was bound with them from Eastport to St. Andrews, in New Brunswick. She had no custom-house papers on board, and none appear to have been taken out at any time for her. There is no proof that she ever came from New Brunswick and entered, or attempted to enter, any port of the United States. Strictly speaking, then, the facts do not. upon this general view, come up to a case of forfeiture. The intention of the parties, however, is not. as I understand it. to place the cause on this ground. Their wish is to settle a general question of great concern to the navigation with small craft, in that part of the country. And as the point has been fully argued, and a decision may save much future litigation, I am not indisposed to meet it upon the merits.

The question is. whether the navigation from the province of New Brunswick to a port of the United States by an open boat, owned as the present is, is interdicted by the act of 1820. The libel does not charge, that she was employed in trade; and therefore, if the interdiction applies at all, it applies (as has been very correctly remarked by the district judge) as well to cases, where the boat is employed as a ferry boat, or to make a visit, as to cases, where the object is the transportation of merchandise. The argument of the district attorney is, that the boat falls within the general description of the statutes, and is a "vessel” within its terms and meaning; and that she is owned “by a subject or subjects of his Britannic majesty.” And if so, she is excluded from entry into our pons. There can be no doubt, that in a general sense a boat is a vessel, for it is a “vehicle in whicli men or goods are carried on the water,” which is one of the definitions of a “vessel” given in our lexicographies; and one of the definitions of a “boat,” given in like manner, is, that it is “a vess'el to pass the water in,” or “a ship of a small size.” In a nautical sense, it more usually designates an open vessel, without decks. Whether the word is used in the one sense or the other in a particular statute, must depend upon the context and objects of the statute itself, which may and often do narrow down the general import to specific classes of cases. The object of the act of 1818, c. 65 [3 Story’s Laws, 1677 (3 Stat. 432, c. 70)], to which the act of 1820 is an explanatory supplement, is to exclude British navigation from our ports, which should come from any of the British colonies, which were closed against the navigation of the United States. Both acts were in their nature retaliatory; and the subsequent acts of 1S22, c. 56 [3 Stat. 681], and of 1823, c. 150 [3 Story’s Laws, 1893 (3 Stat. 740, c. 22)], confirm this view in the most ample manner. The doctrine of reciprocity lies at the bottom of all of them, and this principally in regard to the islands and colonies in the West Indies. That the intention of the act of 1S20 was to cut off trade and commerce in British ships from New Brunswick to the United States cannot be doubted: that it went farther, and meant to prohibit all intercourse by water with that province in any British craft, is not so clear. If the words of the act would cover such cases, it is by no means as certain, that the policy of the legislature reached to the same extent. It is well known, that the ordinary mode of communication between that province and northeastern frontier ports is by boat navigation; and there does not seem to be any ground to suppose that congress intended to prevent the common travel of visitors, or passengers, to and from that province. The second section of the act is manifestly confined to British vessels, which are allowed and required to enter at the custom-house in the course of trade. But boats of the present description do not fall within this class. The third section applies to cases of the importation of goods from the colonies, and is necessarily confined to commercial intercourse. The same intention is still more completely demonstrated in the act of 3 823, which suspends the acts of 1818 and 1820 as to certain colonial ports, and opens trade with them in British vessels. Every provision in this act looks to cases of trade and importation; and to vessels, which by our general laws are allowed to enter and clear at. our custom-houses. By the general revenue collection act of 1709, c. 128, § 92 [1 Story’s Laws, 056 (1 Stat. 697, c. 22)], no foreign dutiable goods are allowed to be imported from any foreign ports by sea in any vessel, foreign or domestic, of less than thirty tons burthen. And the navigation act of 1817, c. 204 [3 Story’s Laws, 1622 (3 Stat. 351, c. 31)], is still more restrictive. I am not aware, that in any of our laws respecting shipping the word “vessel” is applied to any description of boats, like the present. The registry act (Acts 1792, c. 45 [1 Story’s Laws, 268; 1 Stat. 287, c. 1]), invariably uses the words “ship or vessel,” as descriptive of the class of shipping, which it includes. It contains no limitation by tonnage of the size of the ship or vessel; but the form of the certificate of registry (section 9) supposes, that such ship or vessel has a deck. mast. &c. And the regulations, prescribed by our laws, for ascertaining the tonnage of ships or vessels for the payment of tonnage duty, and for other purposes of admeasurement, refer to such only as have one or more decks.' Acts 1799, c. 128, § 64 [1 Story’s Laws, 630]. The fair inference deducible from these provisions is, that the registry act was not meant to apply to ships or vessels without any deck. In respect to the coasting trade and fisheries, the same phrase, “ship or vessel,” is used in the act of 1793, c. 52 [1 Story’s Laws, 2S5 (1 Stat. 305, e.8)],for enrolling or licensing them for such business; but no ship or vessel less than five tons in burthen seems within the purview of the act. Sections 1, 4, 26. The form of enrolment, too, presupposes, that the ship or vessel has a deck, mast, &c; and her tonnage is to be ascertained in the same manner, as in case of registered ships. There is a provision also (section 3) that registered ships may be enrolled, and enrolled or licensed ships may be registered, which seems, by implication, to limit their sizes reciprocally to tonnage above five tons, and to such as have a deck or mast. This construction is fortified by the language of the 37th section, which declares, “that nothing in this act shall be construed to extend to any boat, or lighter, not being masted, or if masted, and not decked, employed in the harbour of any town or city.” It is plain, from this clause, that boats without masts or decks were not allowed to be enrolled or licensed for the coasting trade or fisheries. And the fishing bounty is confined to “boats or vessels” of more than five tons burthen. See Acts 1813, c. 34, §§ 5, 6 [3 Stat. 49].

There are, also, provisions in our laws, which contemplate importations from foreign countries in vessels of a smaller description. But in such cases, the general term “vessel,” is not alone employed, but a more specific description is added. Thus, by the 105th section of the act of 1799, c. 128 [1 Story’s Laws, 661 (1 Stat. 702, c. 22)], importations are allowed on the northern and northwestern •boundaries of the United States, “in vessels or boats of any burthen;” and the next section (section 106) goes on to provide, “that all vessels, boats, rafts, and carriages of what kind or nature soever, arriving in the district aforesaid, containing goods, &c. shall be reported to the collector,” &e. A distinction between “boats” and “vessels” is here taken; and a distinction does, in fact, exist in common parlance and maritime usage. The term “vessel” is never, or at least very rarely, used to designate any watercraft without a deck; but the term “boat” is constantly used to designate such small vehicles of this nature, as are without a deck. In Mortimer’s Commercial Dictionary, a “boat” is defined to be “a small open vessel, commonly wrought by oars.” He says, that the term “ship” is “a general name for all large vessels.” And it appears to me, that the general sense, in which the word “vessel” is used in our laws, is in contradistinction to an “open boat,” and excluding the latter. Such is its meaning in the act of 1815, c. 246 [2 Story’s Laws. 1515 (3 Stat. 231, c. 94)], where it is declared lawful “for any collector &c. to enter on board, search, and examine, any ship, vessel, boat, or raft,” &c. See, also,' Acts 1802, c. 45, § 8 [2 Stat. 182]. And when the word is found in our laws without any thing in the context to explain or enlarge its meaning, it appears to me a sound rule of interpretation to construe it as used- in that sense, which is its most common sense in maritime usage. Especially ought it to receive such an interpretation, when it inter-' feres with no known policy of the legislature, and a different course would involve general inconvenience. The strong inclination of my opinion, therefore, is, that open boats, like the present, even if British owned, if not employed in trade from the British colonies, are not within the scope of the act of 1820. But this case does not turn upon that point alone; and therefore I leave it for an absolute decision, until it forms the single point for judgment.

There is another question of more importance, at least to residents within the United States; and that is, whether this boat was, within the sense of the act of 1S20, a vessel “owned wholly or in part by a subject or subjects of his Britannic majesty.” It is certain, that our laws allows aliens to build ships in the United States, and confer upon them privileges, which are denied to ships built and owned in foreign countries. The former are allowed to be recorded in the custom-house, and to receive a certificate thereof, and thereby are subjected to a less tonnage duty than the latter. See Acts 1792, c. 45, §§ 20-22, 24 [1 Story’s Laws. 268 (1 Stat. 287, c. 1)]; Acts 1790. c. 57, § 1 [1 Story’s Laws, 100 (1 Stat. 135. c. 30)]. It is as clear, that British subjects, domiciled in the United States, are entitled to hold boats of the same description as the present. And I know of no law, which prohibits them from plying between port and port of the United States, so that they are not employed in the coasting trade or fisheries. It does not appear to me reasonable to presume, that congress had any intention to interdict intercourse, except with vessels belonging to British subjects, who retained their national domicil and privileges. If. by the laws of Prance. British subjects, domiciled in France, might bona fide own ships, which would be entitled to the privileges of French shipping, a ship so owned, and bona fide bearing the French flag, would not seem to me excluded from commerce with this country by the act of 1S20. Without entering into the consideration, how far it is necessary to constitute an excluded ship, that she should be owned and registered according to the British registry acts, I think the true interpretation of the act of 1820 is, that the words therein, “British subject or subjects,” mean such subject or subjects as still retain their British domicil, and hold their vessels in the character of British subjects; and not such as have a domicil in the United States, and own vessels, which are protected by the laws of this country, and have their home boná fide here. The policy of the United States has not been to interfere with merchants domiciled here; but to exclude shipping sailing under the flag of protection of England; such shipping as, in the sense of the law of nations, would be deemed British shipping. By the law of nations, for all purposes of capture and prize, and national character, this boat would be deemed an American boat, because her domicil is American. My judgment, therefore, is, that upon the first count the case of forfeiture is not made out in point of fact, because this boat is not, in the sense of the act of 1820, owned, in whole or in part, by subjects of his Britannic majesty.

The second count in the libel is founded on the 5th section of the act of 1823, e. 150 [3 Story’s Laws, 1893 (3 Stat. 740, c. 22)]. That act opens commercial intercourse and navigation with certain enumerated British colonial ports, and among others, with St. Johns and St. Andrews, in New Brunswick; and declares it lawful to import in any British vessel, coming directly from any of the British colonial ports enumerated in the act, which vessels are navigated by a master and three fourths of the mariners British subjects, any articles of the growth &e. of any of the said British colonies, the importation of which is not from elsewhere prohibited, and which may be exported from the same ports to the United States on equal terms in vessels belonging to the states. It prohibits importations in any other manner, or of any other kinds, from the same colonial ports. The 5th section then proceeds to provide, that it shall be lawful to export from the United States directly to the same colonial ports in any vessel of the United States, or in any British vessel, as above described, any article of the growth &c. of the United Státes, or any article legally imported therein, the exportation of which elsewhere shall not be prohibited by law &c. And in the close of the section it declares, “and in case any such articles shall be shipped or waterborne for the purpose of being exported contrary to this act, the same shall be forfeited,” &c. This is the clause on which the second count of the libel is framed. It propounds, that at Eastport, “sundry goods &c. of the growth &c. of the United States, composing the lading of the open boat aforesaid, were shipped and waterborne in said boat, on the waters of the Bay of Passamaquoddy, in said district, for the purpose of being exported from said States to the province of New Brunswick, in the boat or vessel aforesaid, the said boat or vessel then and there not being a vessel of the United States,” &c. The 6th section of the act provides, “that this act &c. shall remain in force as long as the enumerated British colonial ports shall be open to the admission of vessels of the United States, conformably to the provisions of the British act of parliament, of the 24th of June, 1822. St. 3 Geo. IV. c. 44. But if at any time the trade and intercourse between the United States and all or any of the enumerated ports, authorized by the said act of parliament, shall be prohibited by a British order in council, or by act of parliament, then, from the day of the date of such order in council, or act of parliament, or from the time the same shall commence to be in force, proclamation to that effect having been made by the president of the United States, each and every provision of this act, so far as the same shall apply to the intercourse between the United States and the enumerated colonial ports, in British vessels, shall cease to operate in their favour; and each and every provision of the act,” of ISIS and 1820, “shall revive and be in full force.” The president made his proclamation according to this provision, on the 17th of March, 1827, and thus the acts of 1818 and 1820 were effectively revived. The true interpretation of this 6th section of the act has been matter of considerable argument at the bar. Is it, in the given case of the occlusion of the enumerated British colonial ports, virtually repealed in all its provisions, as to intercourse and trade with them, as the introductory clause seems to intend? Or is it repealed only as to intercourse and trade in British vessels, leaving the intercourse and trade in vessels of the United States under the regulation of the 5th section, as a substantive and existing enactment; as the latter clause of the 6th section seems to intimate? The latter is the construction contended for by the district attorney, and on which the second count rests; the former is maintained by the counsel for the claimant.

The act of 1818 contains no provisions excluding trade, either by way of importation into the United States, or exportation from the United States, except in British vessels. Not a word is said respecting the vessels of the United States, or of any other foreign country, except Great Britain. The 1st and 2d sections of the act of 1820 are limited in the same manner. The 3d section prohibits the importation of any- goods, &c. from the province of Nova Scotia, the province of New Brunswick, the islands of Cape Breton, St. Johns, Newfoundland, or their respective dependencies, from the Bermuda islands, the Bahama islands, the islands called Caicos, or the British possessions in the West Indies, or on the continent of America, south of the southern boundary of the United States, except such goods &c. as are the growth &c. of such provinces, islands, and possessions, where the same shall be laden, and from whence they shall be directly imported into the United States. Nothing is said as to exportations from the United States of any goods whatsoever in vessels, not British. The main object of the act of 1823 was to open the intercourse and trade with certain enumerated ports in those prohibited colonial possessions, upon the principles of reciprocity held out by the act of 3 Geo. IV. c. 44. The first four, sections respect importations solely in British vessels. In the 5th section, for the first time, occurs any provision relating to exports, and there the phrase is (as has been already stated), it shall be lawful to export from the United States &c. in any vessel of the United States, or in any British vessel, &e. The first remark, that is called for by this posture of our legislation is. that as to British vessels, the whole intercourse and trade, provided for by the act of 1S23, is completely suspended, and the exclusion of them, by the acts of 1818 and 1820, entirely revived. Thus the retaliatory system is put into complete operation; and that, which alone seemed within the legislative intention, the exclusion of British ships coming from, or going to. ports, where American ships were excluded, universally prohibited. The next remark is, that no legislative intention is any where avowed to interdict trade or intercourse in American vessels to or from any colonial ports. The next remark is, that though the 5th section of the act of 1823, contains an affirmative clause, that it shall be lawful to export from the United States to the enumerated ports, in any vessel of the United States, any goods &c.; yet there is1 no prohibitory clause, declaring any such exportation in any vessels, not of the United States, and not British, unlawful. Now, upon general principles of interpretation, no prohibition can be implied from merely affirmative words. The affirmative words may repeal or suspend a prohibition theretofore created, but per se they cannot create one. The forfeiture in the last clause of the 5th section applies only to cases, where articles shall be shipped or waterborne, for the purpose of being exported, “contrary to the provisions of the act.” To inflict it, therefore, it must be established, that some prohibition exists in the act, which has been violated. Where is the prohibition of such exportation in vessels not British, and not strictly vessels of the United States in the sense of the registry act? None such has been pointed out; and if it had existed, it would not have escaped the scrutinizing sagacity of the district attorney. Assuming, then, that the 5th section, as to vessels of the United States, remains in full force, it is merely affirmative; there was no antecedent prohibition of exportation other than in British vessels; the present boat is not, in the sense of the act, such a British vessel; and consequently the second count falls for want of sufficient facts to maintain its vital averments.

The decree of the district court must be affirmed and restitution accordingly.