THE RESOLUTION
| Decision Date | 23 January 1929 |
| Docket Number | No. 19204.,19204. |
| Citation | 30 F.2d 534 |
| Parties | THE RESOLUTION. |
| Court | U.S. District Court — Eastern District of Louisiana |
E. E. Talbot, U. S. Atty., of New Orleans, La.
Joseph A. McCaleb, of New Orleans, La., for respondent.
This is a libel by the United States against the auxiliary yawl Resolution and her cargo. The first cause of action alleges in substance that the Resolution was bound for the United States, and was observed by the United States Coast Guard cutter Dallas within the 3-mile jurisdictional limits of the United States, immediately off South Pass, Mississippi river, and well within 4 leagues of the Louisiana coast; that upon sighting the Dallas the Resolution directed her course to the open sea, and was thereupon, after a hot pursuit, seized; that lawful demand was made on the master of the Resolution to produce a manifest, but the master failed to produce any manifest, and there was no manifest aboard. It is also alleged that there was found aboard a cargo of intoxicating liquors and distilled spirits, and that the master claims the cargo.
The second cause of action seeks a decree against the vessel and cargo, and alleges that the Resolution did import and bring into the United States in the vicinity of the South Pass of the Mississippi river certain spirits and liquors containing one-half of 1 per centum and more of alcohol fit for use and for beverage purposes, without a permit having been issued therefor by the Commissioner of Internal Revenue or the Commissioner of the Bureau of Prohibition.
The libel further alleges that the merchandise on board the Resolution which was not lawfully manifested has been appraised and found to be of the value of $54,012, that the value of said merchandise has been charged against the master as a penalty, and prays for the recognition of this penalty, which is claimed to be a lien upon the vessel, and for a forfeiture of the ship and cargo to satisfy such lien.
The master filed a claim as the sole owner of the Resolution and as the lawful bailee and consignee of the cargo thereon. Concurrently with the filing of this claim to vessel and cargo, the master filed certain exceptions, which were sustained without prejudice to the government's right to amend its libel and supplemental libel. In due course and within the time allowed, a second amended libel was filed, to which the master again promptly excepted, on grounds not wholly dissimilar to those originally urged. The exceptions came on for hearing and were overruled, whereupon the master filed an answer as the owner of the yawl and cargo, and set forth in substance that the Resolution was not bound for the United States, and did not come within 3 miles or within 4 leagues of the United States, or within the jurisdiction of this court. The answer further denies that a duly authorized officer of the United States made demand on the master to produce a manifest, and sets forth that the seizure was made well beyond the 12-mile limit, and certain other defenses which will be referred to later. This case came on for trial, and the following facts were established:
The Resolution is of British registry, and has a gross tonnage of 40.11 tons and a registered tonnage of 38.11 tons, a length of 49.4 feet, a beam of 17.4 feet, and a depth of 6.7 feet, and was, during the time of the transaction involved in this case, under the control and direction of her master and owner, C. M. Webster. She is a yawl-rigged schooner, but has auxiliary power furnished by a Lathrop internal combustion gas engine of 24 brake horse power. Without the aid of her sails, and loaded as she was at the time of seizure, she was capable of making not in excess of 5½ miles per hour. Under both sails and engine she was capable of greater speed.
On September 8, 1928, the Resolution cleared from the port of Vera Cruz, Mexico, with a full cargo of intoxicating liquors, ostensibly bound for the port of West End, Bahama Islands, British West Indies. The master testified that he had a clearance from the captain of the port, a certificate of clearance from the custom house, a Mexican bill of health, a British bill of health, two sets of crew lists, ships' articles, and a fumigation certificate, but that he had no manifest for the cargo on board, because the British and Mexican laws did not require it.
On the 15th of September, 1928, at 4 a. m., the United States Coast Guard cutter Dallas took her departure from a predetermined point, which was established by cross-bearings taken on Pass a Loutre and South Pass Lights, and proceeded to sea on a course east southeast for a distance of 13 miles, thence south one-half east for a distance of 19.2 miles, thence southwest by west one-half west for a distance of 28.8 miles; this last-mentioned course being run between the hours of 7:57 a. m. and 11 a. m. At 9:45 a. m. the Resolution was first observed by the officer in charge of the Dallas. The cutter, which is capable of a speed not exceeding 11 knots per hour, was then approximately 30 miles off South Pass Light, in the act of apprehending a schooner, when the suspected rum runner was observed 5 miles distant on her port, headed northeast. The testimony shows that it was the strategy of the commanding officer of the Dallas to continue on his course in pursuit of his immediate objective until such time as the suspected rum runner was hull down over the horizon, thereupon he would follow her at a distance which would not permit the cutter being observed. Accordingly, a lookout was placed in the yardarm of the Dallas, with instructions to keep the suspected vessel in view. At 11 a. m. the Resolution was observed taking a more northerly course and to be headed in the general direction of South Pass. The Dallas immediately followed, directly astern of her, on a course northeast three-quarters north, for a distance of 6 miles, thence north by east one-quarter east for a distance of 2.18 miles, thence north one-half west for a distance of 11.5 miles.
At this point and at 1:30 p. m. the commanding officer of the Dallas determined the position of his vessel by dead reckoning and by the taking of an ocular bearing on South Pass Light. By the use of a mathematical formula, which was explained, he determined the position of the Resolution. The position of the Resolution was fixed at 2½ miles from shore and that of his vessel at 5 miles from the Resolution. These observations and bearings were verified by Minor, a boatswain's mate, and found to be correct. At the time when these bearings were taken, the Resolution was steering a course north by east in the direction of the Louisiana coast. It is apparent from the testimony that the presence of the Dallas was then observed, for the Resolution came about and changed her course to eastward, and finally headed out to sea in a southeasterly direction. The commanding officer of the cutter testified that he immediately endeavored to intercept this vessel, that he put up the International Code flag "H," blew the whistle, and fired one solid shell and one blank shell, and then took up the chase, paralleling roughly to the course of the fugitive vessel, and finally intercepted her after a chase of a little better than 2 hours at a point where their courses converged, 23 miles off shore. Two members of the crew of the cutter testified that at the time the Resolution was fired upon she was well within the 12-mile limit, and aside from the physical facts, which unquestionably show a hot pursuit, two of claimant's own witnesses testified that they were aware of the fact that a chase was in progress.
The pursuit lasted about 2 hours; the Resolution was overhauled and ordered to heave to; not complying with this order, a shot from a rifle was fired across her bow, and then the Dallas came around again and fired two blank shells; thereupon at 3:20 p. m. the Resolution stopped and was boarded by members of the crew of the Dallas, who demanded her manifest and other ship's papers. Certain papers, previously described, were tendered by the master and examined. The master was asked if he had a manifest or a permit to carry alcoholic liquors in the United States territorial waters, and, as would be expected, he had no manifest or permit on board.
The Dallas took the...
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United States v. F/V TAIYO MARU, NUMBER 28, SOI 600
... ... See The Newton Bay, 36 F.2d 729, 731-32 (2d Cir. 1929); Gillam v. United States, 27 F.2d 296, 299-300 (4th Cir.), cert. denied, 278 U.S. 635, 49 S.Ct. 32, 73 L.Ed. 552 (1928); The Resolution, 30 F.2d 534, 537 (E.D.La.1929); The Pescawha, 45 F.2d 221, 222 (D.Ore.1928); The Vinces, 20 F.2d 164, 172-73 (E.D.S.C. 1927). Defendant's sole contention is that the United States had no right to conduct hot pursuit from the contiguous zone and to effect seizure of the TAIYO MARU 28, because the ... ...
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Palmero v. United States, 3483.
... ... It was also held in Alksne v. United States, 1 Cir., 39 F.2d 62, 68, that the bringing in of intoxicating liquors intended for beverage purposes within the three-mile limit, though without an intent to land, "is not only forbidden transportation, but forbidden importation". See also The Resolution, D. C., 30 F.2d 534; Middleton v. United States, 5 Cir., 32 F.2d 239; Gillespie v. United States, 2 Cir., 13 F.2d 736 ... It is clear, then, that there was an "importation" or "bringing in" of the opium when the S. S. Exeter entered the territorial waters of the United States, and ... ...
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