4 F.2d 928 (S.D.N.Y. 1925), The Sagatind

Citation:4 F.2d 928
Party Name:THE SAGATIND.
Case Date:April 27, 1925
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 928

4 F.2d 928 (S.D.N.Y. 1925)

THE SAGATIND.

United States District Court, S.D. New York.

April 27, 1925

William Hayward, U.S. Atty., of New York City (Francis A. McGurk, Asst. U.S. Atty., of New York City, of counsel), for libelant.

Karl T. Frederick, of New York City (John Schubert, of New York City, of counsel), for claimant.

AUGUSTUS N. HAND, District Judge.

This case comes up on exceptions to a libel for forfeiture of the Norwegian steamship Sagatind. The libel states ten separate causes of forfeiture. The first, second, third and fourth causes of forfeiture are for violations of section 585 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, Sec. 5841h4); the fifth, sixth, seventh, and eighth for violations of section 586 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, Sec. 5841h5), and of the Act of October 28th, 1919, known as the National Prohibition Act (Comp. St. Ann. Supp.§ 10138 1/4 et seq.); the ninth and tenth for violations of section 3450 of the Revised Statutes of the United States (Comp. St. Sec. 6352).

In these exceptions the claimant raises the following broad contentions:

(1) Each of the ten alleged causes of forfeiture is defective, in that each fails to state facts sufficient to constitute a violation of the particular statute relied upon.

(2) Even though it be assumed that one or more of these alleged causes of forfeiture does state, or is amended to state facts sufficient to constitute a violation, and even though it be admitted for the purpose of these exceptions that the facts alleged are true, yet the seizure of the steamship was not within the jurisdiction or lawful power of the United States of America.

The first count of the libel alleges that the vessel Sagatind arrived on or about October 6, 1924, off the coast of New Jersey and/or Long Island, and was seized by the collector of customs because the Sagatind, 'by means of a small boat bearing the name Thorndyke, acting in concert with said vessel, Sagatind, made contact with the shore of the United States and there was then unladed

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from said vessel Sagatind while in contact with the shore of the United States within the limits of the collection district of New York, certain merchandise, to wit, 2,720 cases of intoxicating liquor, without making report or entry as required by law, and without any necessity for such unlading by reason of stress of weather or other cause,' all in violation of section 585 of the Tariff Act of September 21, 1922. The second, third, and fourth counts allege other and similar offenses. The fifth, sixth, seventh, and eighth counts allege the same unlading of liquor as in the former counts before receiving a permit, and for the purpose of avoiding customs duties and the laws prohibiting the importation of intoxicating liquor for beverage purposes, all in violation of section 586 of the said Tariff Act of September 21, 1922, and the Prohibition Act of October 28, 1919.

The ninth and tenth counts each alleges that during certain different and specified periods a stated number of cases of whisky in respect whereof a tax was imposed was 'removed, deposited and concealed on board and by means of the vessel Sagatind with intent to defraud the United States of the said tax.'

Section 585 of the Tariff Act of September 21, 1922, provides:

'If any vessel or vehicle from a foreign port or place arrives within the limits of any collection district and departs or attempts to depart, except from stress of weather or other necessity, without making a report or entry under the provisions of this act, or if any merchandise is unladen therefrom before such report or entry * * * such vessel * * * shall be subject to forfeiture, and any customs or coast guard officer may cause such vessel or vehicle to be arrested and brought back to the most convenient port of the United States.'

Section 586 of the Tariff Act of September 21, 1922, provides:

'The master of any vessel from a foreign port or place who allows any merchandise (including sea stores) to be unladen from such vessel at any time after its arrival within four leagues of the coast of the United States and before such vessel has come to the proper place for the discharge of such merchandise, and before he has received a permit to unlade, shall be liable to a penalty equal to twice the value of the merchandise, but not less than $1,000, and such vessel and the merchandise shall be subject to seizure and forfeiture.'

Title 2, Sec. 26, of the National Prohibition Act of October 28, 1919, provides that:

'When the Commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof. * * * The court upon conviction of the person so arrested shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of...

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