Gillam v. United States

• Decision Date: 12 June 1928
• Docket Number: No. 2669.,2669.
• Citation: 27 F.2d 296
• Parties: GILLAM v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

27 F.2d 296 (1928)

GILLAM v. UNITED STATES.

No. 2669.

Circuit Court of Appeals, Fourth Circuit.

June 12, 1928.

COPYRIGHT MATERIAL OMITTED

Henry A. Wise, of New York City (John I. Cosgrove and A. R. McGowan, both of Charleston, S. C., on the brief), for appellant.

Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C. (J. D. E. Meyer, U. S. Atty., of Charleston, S. C., on the brief), for the United States.

Before WADDILL and PARKER, Circuit Judges, and SOPER, District Judge.

PARKER, Circuit Judge.

This is an appeal from a decree in admiralty assessing penalties of $500 and $73,089 against the British schooner Vinces, and ordering the forfeiture of her cargo, under sections 584 and 594 of the Tariff Act of 1922 (19 USCA § § 486 and 498). The libel of information, upon which the decree was entered, alleged that the vessel was bound for the United States with a cargo of intoxicating liquors, claimed by the master, of the value of $73,089, that the master did not have on board a manifest describing the cargo as required by law, and that he failed to produce a manifest when demanded by officers of the Coast Guard. The master filed answer, alleging that he filed it for and on behalf of the Smart Shipping Company, Limited, of Halifax, N. S. He averred that both vessel and cargo were owned by that company, and that the vessel was bound on a voyage from St. Pierre, Miquelon, to Nassau, in the Bahamas. He denied that she was bound for the United States, or that she ever at any time came either within 12 miles or within one hour's sailing distance of the coast of this country.

The facts in the case may be briefly stated:

About 4 o'clock on the afternoon of March 14, 1927, as the Coast Guard cutter Mascoutin was returning from Savannah to Charleston, she sighted the Vinces as that vessel crossed her wake, steaming in the direction of the South Carolina coast. The Mascoutin put about and signaled to the Vinces to stop, but, instead of obeying the signal, the latter vessel turned and stood out to sea at full speed. At this time she was about 7½ miles and within one hour's sailing distance of the shore. The Mascoutin gave chase, and overtook her when she was distant from the shore about 12¾ miles. She at first refused to heed the signals of the Mascoutin, but after the latter vessel had fired a number of times, and had finally dropped a solid shot across her bow, she hove to and allowed officers from the Mascoutin to come aboard.

The officers who boarded the Vinces demanded of her master that he produce the ship's papers. He produced a number of papers, including shipping articles, certificate of British registry, license to operate radio receiving equipment, and Canadian customs clearance papers, but no manifest covering the cargo. When a specific demand was made upon him to produce a manifest, he failed to do so, but offered the customs clearance papers as such. The Coast Guard officers thereupon searched the vessel and found that she had on board 1,485 cases of champagne and whisky, 1,451 of which were full, and the others only partly full, and 99 kegs of malt. They thereupon seized the vessel and took her into the port of Charleston, where the libel of information was filed for violation by her master of the provisions of the Tariff Act of 1922, in failing to have and produce a manifest as required by the provisions of that act. Upon appraisal the cargo was valued at $73,089 and the vessel herself at $12,000.

The District Judge found that the Vinces was bound for the United States with her cargo of liquor, and was within 12 miles and within an hour's sailing distance of the shore when she was hailed by the Mascoutin, and we think that these findings are amply supported by the evidence. It appears that she sailed from Halifax, N. S., on February 15, 1927, ostensibly bound for Nassau, but that she never reached Nassau, although the distance was only about 1,500 miles, and the voyage should have been made in 7 or 8 days. That Nassau was only a pretended destination, appears from the fact that shortly after leaving Halifax, and while at sea, she transferred her cargo of liquor to another vessel, whose name and the name of whose master the master of the Vinces claimed that he was unable to remember. On March 9th, nearly a month after her departure from Halifax, she was seen by the revenue cutter Shaw a little north of the latitude of Cape Hatteras and approximately 120 miles westward of the course from Halifax to Nassau, engaged in taking on a cargo of liquor from the British schooner Dorothy M. Smart. Even then she did not proceed to Nassau, which port she could have reached in less than 5 days; but, on the contrary, 5 days later, on the morning of March 14th, she was seen hovering near the South Carolina coast, and that afternoon, when first seen by the Mascoutin, she was steaming directly for the shore.

The master of the Vinces strenuously denied that he was bound for the United States, that he was within an hour's sailing distance of the shore, or that he was within the 12-mile limit. The trial judge, however, listened to much testimony on these questions, and, as he saw and heard the witnesses, we would not be justified in disturbing his findings, unless satisfied that he misapprehended the evidence or went against its clear weight. Virginia Shipbuilding Corporation v. U. S. (C. C. A. 4th) 22 F.(2d) 38, 51. We are not so satisfied, but, on the contrary, are convinced from a carefully study of the evidence that his findings were correct. This leaves for consideration only the questions of law raised by the appeal. These relate (1) to the validity of the seizure; (2) to the right to assess penalties against the vessel; and (3) to the right to decree the forfeiture of the cargo. We shall consider these in order.

1. The Validity of the Seizure. On this question, the contention in behalf of the vessel is (1) that, as she was admittedly beyond the 3-mile limit at all times, she had not committed a crime within the territorial limits of the United States, and was therefore not subject to seizure; and (2) that under the Treaty with Great Britain of May 22, 1924, 43 Stat. 1761, seizure is authorized only when it appears that the vessel is within one hour's sailing distance of shore and has committed or is attempting to commit an offense against the laws of the United States, which prohibit the importation of alcoholic beverages. No point is made that the vessel was actually overhauled and the seizure actually made beyond the hour's sailing distance and beyond the 12-mile limit, if she was within these limits when signaled; and we think it is clear, under the "hot pursuit" doctrine, that if the right of seizure existed at the time the vessel was signaled, the right was not lost because she had succeeded in getting farther from shore in her attempt to run away. Hudson v. Guestier, 6 Cranch, 281, 3 L. Ed. 224; Ship North v. King, 37 Can. Sup. Ct. 385, 3 Ann. Cas. 806; Jurisdiction at the Maritime Frontier, by Prof. Dickinson, Harvard Law Review, Nov., 1926, and citations in notes 80 and 81.

While it is true, as contended, that the vessel never came within the 3-mile limit of the territorial waters of the United States, we think that, as she was bound for the United States with an unmanifested cargo and came within 12 miles, or 4 marine leagues, of the coast, her seizure was justified under the revenue statutes of the United States, and that these statutes constitute a valid exercise of the sovereign power of the government. Section 431 of the Tariff Act of 1922 provides that the master of every vessel arriving in the United States shall have on board a manifest, in a form prescribed by the Secretary of the Treasury, setting forth among other things a description of the merchandise on board and the names of the persons to whom it is consigned. USCA tit. 19, § 241. Section 581 authorizes officers of the Coast Guard to board any vessel within 4 leagues of the coast of the United States to examine the manifest, and to inspect, search, and examine the vessel, etc., and, if it appears that any breach or violation of the laws of the United States has been committed whereby the vessel or its cargo is liable to forfeiture, to seize same. USCA tit. 19, § 481. Section 583 requires that the master of every vessel "bound to a port or place" in the United States shall deliver to the officer of the Customs or Coast Guard who shall first demand it of him the original and one copy of the manifest. USCA tit. 19, § 485. And it is clear that the duty of production under this section is coextensive with the authority to inspect under section 581 and extends 4 leagues from the coast. The Pictonian (C. C. A. 2d) 20 F.(2d) 353, 354. Section 584 provides a penalty of $500 for failure to produce the manifest to the officer demanding same, and, if any goods are not included or described in the manifest, a penalty equal to the value of such goods, with other provisions as to forfeiture of cargo which are hereafter considered. USCA tit. 19, § 486. And finally section 594 provides that, whenever a vessel or its owner or master has become subject to a penalty for violation of the customs revenue laws of the United States, it "shall be held for the payment of such penalty and may be seized and proceeded against summarily by libel to recover the same." USCA tit. 19, § 498. In view of these provisions, there can be no doubt that the seizure of the vessel was authorized by the statutes upon which the government relies. Maul v. U. S., 274 U. S. 501, 47 S. Ct. 735, 71 L. Ed. 1171; The Squanto (C. C. A. 2d) 13 F.(2d) 548; Arch v. U. S. (C. C. A. 5th) 13 F.(2d) 382; The Henry L. Marshall (C. C. A. 2d) 292 F. 486; Id. (D. C.) 286 F. 260, certiorari denied 263 U. S. 712, 44 S. Ct. 38, 68 L. Ed. 519; U. S. v. Bengochea (C. C. A. 5th) 279 F. 537; The Mistinguette (D. C.) 14 F.(2d) 753; The Pesaquid (D. C.) 11 F.(2d) 308.

We think it equally clear that ...