American Surety Co. v. Sullivan, 273.
| Decision Date | 06 April 1925 |
| Docket Number | No. 273.,273. |
| Citation | 7 F.2d 605 |
| Parties | AMERICAN SURETY CO. OF NEW YORK et al. v. SULLIVAN. |
| Court | U.S. Court of Appeals — Second Circuit |
Emory R. Buckner, U. S. Atty., of New York City (Francis A. McGurk, Asst. U. S. Atty., of New York City, of counsel), for plaintiffs in error.
Winifred Sullivan, of New York City, for defendant in error.
Before HOUGH, MANTON, and HAND, Circuit Judges.
Sullivan sued Wilcox under R. S. § 1735 (Comp. St. § 3193), for willfully neglecting to perform a duty imposed upon him by law. The case was as follows:
Sullivan was a sea captain, and in November, 1916, engaged with one De la Roncicre, an alien, as master of the schooner Fanny Hodgkins, for a voyage from the United States to Point a Pitre, Guadaloupe. The schooner left New York on May 1st and reached Point a Pitre on May 30th, where Sullivan delivered his papers to the vice consul.
Wilcox was American consul for the island, and on March 16th had received a wire from the State Department advising him that no vessel registered under the laws of the United States should be sold, leased or chartered to any person not a citizen, or transferred to foreign register, without the approval of the Shipping Board. The dispatch concluded with the direction: "Decline render any service in connection such transfers." On May 29th he received a second wire respecting persons coming to the United States, which contained the following direction: "If convinced applicant's journey for an improper or inimical purpose decline visé and report to department." Supposing that the Fanny Hodgkins had been or would be transferred in violation of law, Wilcox wished to detain Sullivan on the island, so that he might sail her; he being the only American skipper available. He therefore refused repeated requests of Wilcox for a visé until August 6, 1917. The action was for Sullivan's expenses on the island and for his loss of wages while there detained.
In fact, the schooner was owned by one Sergent, an American, who had bought her in 1916, just when did not appear. Being unable to pay for her in full he gave some kind of security to De la Roncicre, who had lent him what he needed of the purchase price. After her arrival at Guadaloupe, Sergent found it was impossible to sail her as he had hoped, and tried to get leave of the Shipping Board to transfer her to alien ownership. Eventually, on August 14, 1917, he did get such leave, and did so sell to De la Roncicre. Wilcox, getting wind of her proposed disposition, assumed that the venture had been from the outset a cover for violating the law to which his attention had been called by the wire of March 16th.
No statute directs a consul to visé passports, and his duty to do so must therefore depend upon instructions or regulations of the Department of State, which is charged with supervision over consuls under the President. R. S. § 202 (Comp. St. § 300). The complaint alleged that under the laws and consular regulations it was Wilcox's duty to visé the passport of a citizen, and, as this was not denied in the answers, it must be taken that there were such regulations. We start, therefore, with that assumption, and the case resolves itself into whether the instructions above mentioned constituted an excuse for disregarding the duty so established.
Wilcox's first excuse is that a visé would have been a service rendered in connection with the supposed transfer. We shall take it that ...
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