The Conqueror, No. 98

CourtUnited States Supreme Court
Writing for the CourtBROWN
Citation166 U.S. 110,41 L.Ed. 937,17 S.Ct. 510
Docket NumberNo. 98
Decision Date08 March 1897
PartiesTHE CONQUEROR

166 U.S. 110
17 S.Ct. 510
41 L.Ed. 937
THE CONQUEROR.
No. 98.
March 8, 1897.

Page 111

This was a libel by Frederick W. Vanderbilt to recover possession of the steam yacht Conqueror, of which he was the owner, and which was alleged to be illegally detained by J. Sloat Fassett, then collector of customs for the district of New York.

The material facts of the case are as follows: In May, 1891, Vanderbilt, who is a native-born American citizen, purchased of one Bailey, or Kingston-upon-Hull, England, the yacht Conqueror, a foreign-built vessel, for the sum of 15,500, or about $75,000. The bill of sale was certified by the United States consul at Liverpool, and the yacht was delivered to Vanderbilt at Hull. The vessel was designed for pleasure only, and has never been put to any other use. After a cruise to Norway, Mr. Vanderbilt returned with her to England, and in June was elected a member of the Royal Mersey Yacht Club of Liverpool; thereby, it seems, obtaining the right to fly the blue ensign of her majesty's fleet. He never did, however, fly a British flag, but always carried the ensign of the New York Yacht Club, and her enrollment in the Liverpool Yacht Club seems to have been with the intent of claiming a special privilege of exemption from tonnage tax, under Rev.

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St. § 4216, accorded to yachts belonging to foreign yacht clubs.

Shortly after this the yacht crossed the ocean, and arrived at New York about July, 6, 1891, where she was duly entered as a vessel with the collector of the port, and paid the light money levied upon her by the collector as a vessel, pursuant to Rev. St. § 4225. She also received from the deputy collector a certificate to her bill of sale, describing her, stating that she had been sold by Bailey to Vanderbilt, and that the latter was a citizen of the United States. This entitled her to protection as an American vessel, but did not authorize her to engage in commerce. After curising for some time about the coast, on August 27, 1891, in obedience to instructions from the treasury department, founded upon an opinion of the solicitor of the treasury that the yacht should be regarded as a dutiable importation, the collector took forcible possession of her, and held her until dispossessed by the marshal under authority of the district court. On October 1st Mr. Fassett went out of office, and was succeeded by Francis Hendricks, to whome the possession passed.

Meanwhile, on September 1st, Mr. Vanderbilt filed his present libel for possession of the yacht, alleging his citizenship; the fact that the vessel was designed, intended, and constructed as a pleasure yacht only; its purchase by the libelant; as well as other facts hereinbefore set forth,—and prayed for process against the vessel, and for a decree awarding him possession, and condemning Fassett in damages and costs. Process having been issued against the yacht, the execution thereof by the marshal was restricted by the customs officials, and it was not until an alias and pluries process had been issued that the marshal succeeded in obtaining exclusive and undisputed control of her. Fassett then applied to this court for a writ of prohibition, which was denied. In re Fassett, 142 U. S. 479, 12 Sup. Ct. 295.

Answers having been filed by Mr. Fassett, as late collector and personally, and by Mr. Hendricks, as collector, praying for the dismissal of the libel and for a decree of restitution of the yacht to the collector, the cause came on for a hearing in

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the district court, and resulted in a decree of restitution (49 Fed. 99), a reference to a commissioner for an assessment of damages, and a subsequent decree for damages in the sum of $15,000 as demurrage for detention of the yacht from August 27th to February 3d, and for other items sufficient to make up a total decree of $21,742.34.

Upon appeal to the circuit court of appeals this decree was affirmed without an opinion, whereupon appellant applied for and was granted the present writ of certiorari.

Asst. Atty. Gen. Whitney, for appellant.

Elihu Root, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

Two questions are involved in the merits of this case: First, whether this vessel was taxable under the tariff laws; second, whether the award of damages was justified by the law and the testimony.

1. A preliminary objection is made, however, by the appellee that the case is not properly before the court, because the mandate is not here, and because the case was in the district court, and was brought here by a writ addressed to a court which had lost jurisdiction of it before the writ had issued.

The fact that the mandate of the circuit court of appeals to the district court, affirming the decree of that court, had gone down, is immaterial. The transcript of the record is still in the court of appeals, and, if a writ of certiorari can be issued at all after a final disposition of the case in that court, it could not be defeated by the issue of a mandate to the court below. That certiorari can issue, and, indeed, is ordinarily only issued, after a final decree in the court of appeals, was settled by this court in American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 384, 13 Sup. Ct. 758, although it may be issued before, if this

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court be of opinion that the facts of the case require an earlier interposition. The Three Friends, 17 Sup. Ct. 495.

The only question worthy of consideration in this connection is whether the writ of certiorari should not have been applied from more promptly. The decree sought to be reviewed was entered June 6, 1893. The petition for certiorari was not filed until April 16, 1894. The act does not fix the time within which application for a certiorari must be made. As the decree was entered June 6th, immediately after this court had adjourned for the term, and as the application must be made to the court while in session, no fault is imputable to the government in not making the application before the opening of the next term in October; and while we think such application should be made with reasonable promptness, as it was made during the term and within a year after the original decree, we think it was within the time. We do not think the party complaining is limited to the six months allowed by section 11 of the court of appeals act for suing out a writ of error from the court of appeals to review the judgment of the district or circuit court; and it would seem that he is, by analogy, entitled to the year within which, by section 6, an appeal shall be taken or writ of error sued out from this court to review judgments or decrees of the court of appeals in cases where the losing party is entitled to such review.

2. Was the Conqueror dutiable under the tariff act of October 1, 1890 (26 Stat. 567)? This act requires duties to be levied upon all 'articles' imported from foreign countries and mentioned in schedules therein contained, none of which schedules mention ships or vessels eo nomine. An abstract furnished us of the corresponding clauses in all the principal tariff acts from 1789 to the present date shows that duties are laid either upon 'articles,' as in the present act, or upon 'goods, wares and merchandise,'—words which have a similar meaning. Indeed, the words 'articles' and 'goods, wares and merchandise' seem to be used indiscriminately, and without any apparent purpose of distinguishing between them. While a vessel is an article of personal property, and may be

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termed 'goods, wares and merchandise,' as distinguished from real estate, it is not within either class, as the words are ordinarily used. In all this class of cases, the meaning of the words as used in the particular statute must be gathered from the context and from the evident purpose of the act. Thus, in Iron Co. v. Claytor, L. R. 4 Q. B. 209, it was held that a ship was not an 'article,' within the meaning of an act forbidding the employment of children to labor in the manufacture of articles or parts of articles, but that an iron plate was an article of metal, even though used in shipbuilding, and the shaping of the plate was part of the manufacture.

Vessels certainly have not been treated as dutiable articles, but rather as the vehicles of such articles, and, though foreign built and foreign owned, are never charged with duties when entering our ports, though every article upon them that is not a part of the vessel, or of its equipment or provisions, is subject to duty, unless expressly exempted by law. If this yacht had been brought here by a foreigner, it is not insisted that she would have been subject to duty. Indeed, she might be navigated between our ports for an unlimited time, provided only that she did not carry passengers or goods for hire. If she be dutiable at all, it must then be because she was bought by an American citizen. But why should this make her dutiable? She is not imported or taken into the country, in the ordinary sense in which that term is used with reference to other articles, does not become commingled with the general mass of property, and is employed precisely as she might be legally employed by her foreign owners, or by an American citizen leasing her from such owner. Other articles are dutiable, not because they have been purchased, but because they are actually imported and become the subject of sale and commerce within the country. But if a yacht be dutiable when purchased, and only when purchased, by an American citizen, we apply a test of dutiability that we apply to no other article, namely, the test of ownership.

Not only is there no mention of vessels, eo nomine, in the tariff acts, but there is no general description under which they

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could be included, except as manufactures of iron or wood. But it is only by straining the word far beyond its ordinary import,...

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374 practice notes
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1904
    ...Bridge Co. v. Olsen, 108 Fed. 335, 47 C. C. A. 367, 54 L. R. A. 33; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. (6) The verdict of the jury is not excessive. Gulf Ry. Co. v. Shelton (Tex. Civ. App.) 69 S. W. 653; Hall v. Chicago R......
  • States Marine Lines, Inc. v. Shultz, No. 73-2065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 14, 1974
    ...Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 4 L.Ed. 381 (1818); Averill v. Smith, 84 U.S. (17 Wall.) 82, 21 L.Ed. 613 (1872); The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937 There is no indication that the exceptions in 28 U.S.C. § 2680(a) and (c) were meant to alter the established pr......
  • Chrestensen v. Valentine, No. 358.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 24, 1941
    ...Taxicab Co., 177 App.Div. 57, 163 N.Y.S. 904, affirmed Sloate v. Rochester Taxicab Co., 221 N. Y. 491, 116 N.E. 1076. 17 The Conquerer, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 18 Consolidation Coal Co. v. Pratt, 169 Ky. 494, 184 S.W. 369, L.R.A.1916D, 1229. 19 Schneider v. State of New Jersey ......
  • Virnetx Inc. v. Apple Inc., 2017-1591, 2017-1592, 2017-1593
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 1, 2019
    ..."hostility toward piecemeal appeals"); Panama , 166 U.S. at 284, 17 S.Ct. 572 ("[A]s was recently said in the case of The Conqueror , 166 U.S. 110, 17 Sup. Ct. 510, 41 L.Ed. 937, [the writ of certiorari] is and generally should be issued only after a final decree.").In McLish v. Roff , the ......
  • Request a trial to view additional results
374 cases
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1904
    ...Bridge Co. v. Olsen, 108 Fed. 335, 47 C. C. A. 367, 54 L. R. A. 33; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. (6) The verdict of the jury is not excessive. Gulf Ry. Co. v. Shelton (Tex. Civ. App.) 69 S. W. 653; Hall v. Chicago R......
  • States Marine Lines, Inc. v. Shultz, No. 73-2065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 14, 1974
    ...Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 4 L.Ed. 381 (1818); Averill v. Smith, 84 U.S. (17 Wall.) 82, 21 L.Ed. 613 (1872); The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937 There is no indication that the exceptions in 28 U.S.C. § 2680(a) and (c) were meant to alter the established pr......
  • Chrestensen v. Valentine, No. 358.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 24, 1941
    ...Taxicab Co., 177 App.Div. 57, 163 N.Y.S. 904, affirmed Sloate v. Rochester Taxicab Co., 221 N. Y. 491, 116 N.E. 1076. 17 The Conquerer, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 18 Consolidation Coal Co. v. Pratt, 169 Ky. 494, 184 S.W. 369, L.R.A.1916D, 1229. 19 Schneider v. State of New Jersey ......
  • Virnetx Inc. v. Apple Inc., 2017-1591, 2017-1592, 2017-1593
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 1, 2019
    ..."hostility toward piecemeal appeals"); Panama , 166 U.S. at 284, 17 S.Ct. 572 ("[A]s was recently said in the case of The Conqueror , 166 U.S. 110, 17 Sup. Ct. 510, 41 L.Ed. 937, [the writ of certiorari] is and generally should be issued only after a final decree.").In McLish v. Roff , the ......
  • Request a trial to view additional results

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