The S. Oteri

• Decision Date: 11 December 1894
• Docket Number: 260.,259
• Citation: 67 F. 146
• Parties: THE S. OTERI. v. VALENSONA. UNITED STATES SAME v. OTERI et al.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F. 146

THE S. OTERI.

UNITED STATES v. VALENSONA.

SAME v. OTERI et al.

Nos. 259, 260.

United States Court of Appeals, Fifth Circuit.

December 11, 1894

These were two suits growing out of an alleged violation of the shipping and customs laws. No. 259 was a libel in admiralty filed by the United States against the steamship S. Oteri Mrs. Valensona claimant, to recover a penalty of $500 for an alleged violation of Rev. St. Sec. 4197, by the omission from her manifest of a propeller wheel and a case of ferrules which were withdrawn from warehouse at New Orleans for re-export under the customs laws and regulations. In this case the district court held that the omission was a proper one, and therefore dismissed the libel. The United States appealed. No. 260 was an action at law against Salvador Oteri and D. R. Noble, upon a bond given under Rev. St. Sec. 2979 in the penal sum of $1,000, to secure the export and landing, outside of the United States, of the propeller wheel and case of ferrules above mentioned. A jury was waived, and the case tried to the court, which found that the condition of the bond had been broken, and entered judgment against defendants for $180.39, with interest, being the amount of duties estimated to be due upon those articles. From this judgment the United States bring error, claiming that it should have been for the full amount of the bond. The bond is here set out in full:

"$500.00 Exportation Bond. No. 1,329

'Know all men by these presents that we, Salvador Oteri. of the city of New Orleans, merchant, as principals, and D. R. Noble, as sureties, are held and firmly bound unto the United States of America in the sum of one thousand dollars, for the payment whereof to the United States we bind ourselves, our heirs, executors, administrators, and assigns, jointly and severally, firmly by these presents. Witness our hands and seals, at the port of New Orleans, this first day of April, eighteen hundred and ninety-two. Whereas, the following described merchandise having been heretofore duly imported into the United States, and entered for warehousing in bond, and having been so warehoused at the above-named port, according to law, hath been this day entered for withdrawal and exportation in bonds, viz.:

Description of Packages

""Marks. Numbers. and Merchandise.

H 1 1 propeller wheel.

Oteri 2 1 case ferrules.

"District and port of New Orleans.

"Collector's office, March 7th, 1893.

"I hereby certify the foregoing to be a true copy of the record on file at this office.

"(Signed) J. D. Crawford.

"Dy. Collector, S-S Astronomer, L'pool.'

-- Which said merchandise is also described in an export entry of this date, numbered 2273, and is to be exported in the S-S S. Oteri, whereof De Luca is at present master, now lying in the above named port, and bound for the port of Truxillo, Hond.; and whereas, it is intended that the said merchandise shall be exported as aforesaid, under and by virtue of the several laws of the United States relating to the exportation of imported goods without the payment of duties thereon. Now, therefore, the condition of this obligation is such that if the aforesaid merchandise shall, in good faith, be actually exported and landed abroad, according to the true intent and meaning of these presents, and shall not, nor any part thereof, be relanded at any port or place within the limits of the United States; and if the certificates and other proofs required by law and the regulations of the secretary of the treasury, showing the delivery of the same at the said port of destination, or any other port or place without the limits of the United States, shall be produced and deposited with the collector of customs for the time being at the said port of withdrawal within twelve months from the date hereof,-- then this obligation to be void; otherwise to remain in full force and virtue.

'(Signed) pp. S. Oteri,

'(Signed) E. M. Stella, 23 Front St.

'(Signed) D. R. Noble, Washington House, N.O.

'Signed, sealed, and delivered in the presence of

'(Signed) S. Livaudais.'

Further facts are stated by the court as follows:

The above-entitled cases, the first being a suit in admiralty to recover a penalty for failure to place certain exported goods on the manifest of the steamship S. Oteri, and the second an action at law to recover the amount stipulated as a penalty in an exportation bond, were both tried in the district court, jury being waived, on the following admitted state of facts:

'It is admitted, as shown by the evidence filed in the record in both cases 13,021, United States v. Steamship S. Oteri, and in No. 13,026, United States v. Salvador Oteri, that the propeller wheel and a case of ferrules were laden on board the steamship S. Oteri for export to Truxillo, Honduras, April 4, 1892; that on the production of the bill of lading in the record, and the certificate of lading by the customs inspector, the export bond was canceled under the regulations then existing. It is admitted that the steamship S. Oteri, instead of going to Truxillo went over the river from her wharf to the dock on the Algiers side of the city and port of New Orleans; that said vessel went on the dock April 8, 1892, and came off April 12, 1892, abandoning her trip to Truxillo. During this time the propeller wheel and ferrules had been placed on said vessel as a part of her machinery and motive power, and still remain there. That same were not exported, notwithstanding the bill of lading and cancellation of the bond. It is admitted that the invoice in the records shows that the wheel was made under contract for this S.S.S. Oteri, and imported for the use of said vessel, and is now so used; never having been placed on said vessel in a foreign port, or never having paid the duties, never having been exported in bond. It is admitted that $500 is deposited with the collector of port of New Orleans, under protest, to cover the penalty. It is admitted that after the said vessel came from the dock said vessel cleared May 6, 1892, for La Ceiba, in ballast and ship stores, no mention being made of the propeller wheel and ferrules. It is admitted that this manifest was correct, in so far as it made no mention of said wheel and ferrules as freight, for the reason that said wheel and ferrules were placed on said vessel while in the dock as stated above, as a part of her motive power. It is admitted that the said steamship S. Oteri is a foreign-built vessel, and that all the patterns of her machinery and pieces of her machinery are held at the place of her construction, viz. a foreign port or place. It is agreed that the record evidence in both cases shall apply and be used in either.'

'No. 13,016 v. Salvador Oteri. District Court.

'Duties on one propeller shaft, value 95 pounds, $462, weight three tons, 16 cwt., or 8,512 lbs.

'Valued four cents, and not above seven cents, say two cents per lb.

'Duty, $170.24.

On ferrules, wood ............................... [in pencil] .	$170 24
<> 6-29, 35 per cent.,$10.15 .................	10 15
	-------
	$180 39"

'It is agreed by F. B. Earhart, United States attorney, and Gurley & Mellen, attorneys and proctors for defendants in the above entitled and numbered case, that the foregoing is a correct estimate of the customs duties which could be imposed on the propeller shaft and ferrules described in the record herein, if same were imported in the United States.'

F. B. Earhart, U.S. Atty.

J. Ward Gurley, for appellees.

Before PARDEE and McCORMICK, Circuit Judges, and BRUCE, District Judge.

PARDEE Circuit Judge (after stating the facts).

As these cases were tried in the district court on the same...