THE MAZEL TOV
| Decision Date | 18 March 1932 |
| Docket Number | No. 2607.,2607. |
| Parties | THE MAZEL TOV. UNITED STATES v. COOK. |
| Court | U.S. Court of Appeals — First Circuit |
Charles H. Eden, Asst. U. S. Atty., of Providence, R. I. (Henry M. Boss, Jr., U. S. Atty., of Providence, R. I., on the brief), for the United States.
Joseph E. Fitzpatrick, of Providence, R. I. (Mortimer W. Newton, of Providence, R. I., on the brief), for appellee.
Before BINGHAM and WILSON, Circuit Judges, and BREWSTER, District Judge.
For the purpose of this appeal, two causes tried in the federal District Court for Rhode Island were consolidated. The first is a libel brought by the United States against the British motor vessel Mazel Tov, to effect the collection of certain penalties assessed against the master for violations of the revenue laws of the United States. Their assessment and collection are based on the following grounds: (1) For failure to produce a manifest of the cargo; (2) for having on board merchandise not described in the manifest; and (3) for having arrived within the limits of collection district No. 4 (Massachusetts) and attempting to depart therefrom without making entry. The first two grounds are alleged to be violations of section 584 of the Tariff Act of 1930 (19 USCA § 1584), and the third a violation of section 585 of that act (19 USCA § 1585).
The second is a libel seeking the forfeiture of the cargo (403 sacks and 6 bottles of distilled spirits) valued at $14,286.18, on the ground that it was found on board a vessel bound for the United States, within four leagues of the shore, consigned to the master of the vessel, and was not included or described in the manifest, in violation of section 584 of the Tariff Act.
The libel, seeking collection of penalties out of the vessel, was dismissed, and the vessel ordered returned to its owners or their agent. The libel for the forfeiture of the cargo was also dismissed, and the cargo ordered placed upon the vessel in the custody of its owners or their agent; and, decrees of dismissal having been entered in each case, appeals were taken to this court.
In the District Court it was found that, on the evening of November 1, 1930, at about five minutes after 6, the Mazel Tov was boarded by officers of the Coast Guard on the destroyer Tucker when eleven and one-half miles distant from the nearest point of land off the coast of Massachusetts. When the Mazel Tov was first seen, she was under way and headed for Gay Head, the southwesterly point of Martha's Vineyard. Having apparently observed the approach of the Tucker, she changed her course to sea, but, on being overtaken, promptly stopped when signaled so to do. An officer of the Tucker upon boarding the Mazel Tov demanded her manifest, which the court below found was produced. A search of the vessel, thereafter made, disclosed that her sole cargo, outside of sea stores, consisted of 403 sacks and a few bottles of whisky, cleared at St. Pierre on October 16, 1930, which were not included or described in her manifest; and, while the cargo was about one-fourth the quantity which the vessel could carry, it was specifically found that the Mazel Tov had, at no time, been within three miles of the United States nor within the limits of the United States; that she sailed from a foreign port, and that it was intended that the liquors on board her should be transhipped to contact boats and landed in the United States; that the speed of the Mazel Tov was between nine and ten knots an hour and insufficient for her to reach the shore of the United States in an hour's time; that the value of the liquor was $14,286.18; and that notice of the penalties, assessed by the administrative officer of the customs, and the form thereof, notifying the master of their assessment, in the sums of $500, $5,000, and $14,236.19, were sufficient, and that the assessments had not been paid.
The penalty of $500 assessed against the master for not producing a manifest was denied, on the ground that the paper produced on the demand of the Coast Guard officer was a manifest within the meaning of section 584.
The penalty of $14,286.18, for having on board the vessel merchandise not included or described in the manifest was denied on the ground that the seizure was made beyond the three-mile limit and not within an hour's run of the vessel to the nearest shore, as prescribed in the Treaty between the United States and Great Britain of May 22, 1924 (43 Stat. 1761); in other words, that in so far as the provisions of section 581 of the Tariff or Customs Act of 1922 (19 USCA § 481) re-enacted in 1930 (19 USCA § 1581), fixed the distance (four leagues or twelve miles) from the shore within which a vessel bound for the United States may be boarded, and, if found to be violating the revenue laws of the United States, may be seized, they had been abrogated as to intoxicating liquors.
As to the penalty of $5,000, for departing or attempting to depart from a "collection district" in violation of the provisions of section 585, it was held that the vessel was not liable for the reason that, at the time the Mazel Tov was signaled to stop, she had not arrived within the limits of any collection district; that a collection district does not extend out to sea for a greater distance than three miles from shore.
The only errors assigned and here relied on, as to the libel asserting penalties against the vessel, are: (1) Whether the treaty of May 22, 1924, changed or amended the fourleague limit fixed in the various provisions of our revenue laws and, in particular, as fixed in section 581 of the Tariff Act of 1922 (19 USCA § 481), or has or was intended to have any application to the situations provided for and governed by those provisions; and (2) if the treaty did not amend section 581 in the particular above specified, whether, under the evidence and facts found, the vessel, when she came within four leagues or twelve miles of the shore, was bound for the United States of that the provisions of sections 581 and 584 became applicable and subjected her to seizure and to the collection of the penalties assessed against her master.
The only penalties, as to which any contention is made before us on this appeal, are those for $14,286.18, the value of the merchandise, and for $5,000 for departing from a collection district without entry.
The first question is whether the Treaty of May 22, 1924, amended that clause of section 581 of the Tariff Act of 1922, fixing a coast line four leagues from our shore as the bound with respect to which any vessel coming within the same should, if requested, produce a manifest or be subject to the penalties prescribed in section 584, which provisions Congress has made for the protection of our commerce and the enforcement of our customs-revenue laws.
As to this we are of the opinion that the District Court was in error; that the high contracting parties, in making the Treaty of May 22, 1924, did not intend to alter and did not thereby effect a change in the customs-revenue laws of the United States, wherein Congress had fixed a four-league protective zone. At the time the treaty was made, the Eighteenth Amendment to the Constitution was in force and the National Prohibition Act was in existence, having been enacted by Congress in 1919. By both the amendment and the National Prohibition Act the importation of intoxicating liquors into the United States and all territory subject to its jurisdiction was prohibited.
The Eighteenth Amendment (40 Stat. 1050), in section 1, provided:
And section 3, title 2, of the National Prohibition Act (41 Stat. 305 27 USCA § 12), provided:
November 23, 1921, Congress passed an act supplemental to the National Prohibition Act (42 Stat. 222) and in section 3 thereof defined the territorial field to which the act applied, as follows:
* * *" 27 USCA § 2.
And the Supreme Court in Cunard S. S. Co. v. Mellon, 262 U. S. 100, 120-122, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306, prior to making the treaty, had held that the term "importation" as employed both in the Eighteenth Amendment and in the National Prohibition Act had a broader meaning than in the customs-revenue laws; that under the former the bringing of intoxicating liquors for beverage purposes within the three-mile limit, though without intending to land, was forbidden importation, although under the customs-revenue laws the bringing of such intoxicating liquors within the three-mile limit without intending to land was not a forbidden importation. See, also, Alksne v. United States (C. C. A.) 39 F.(2d) 62, 67, 68.
And in construing the meaning of the word "territory" (page 122 of 262 U. S., 43 S. Ct. 504, 507) as used in the Eighteenth Amendment, in the phrase "the United States and all territory subject to the jurisdiction thereof," the court had held that it meant "the regional areas — of land and adjacent waters — over which the United States claims and exercises dominion and control as a sovereign power"; that ...
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U.S. v. Quemener
... ... at 814-15. Similar conclusions have been reached by a number of American courts. See Ford v. United States, 273 U.S. 593, 601, 47 S.Ct. 531, 533, 71 L.Ed. 793 (1927); The Miss C.B., 63 F.2d 639, 639 (5th Cir.1933); The Golmaccam, 8 F.Supp. 338, 339 (D.Me.1934); The Mazel Tov, 51 F.2d 292, 294 (D.R.I.1931), rev'd on other grounds, 56 F.2d 921 (1st Cir.1932), rev'd sub nom. Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933); United States v. Henning, 7 F.2d 488, 489 (S.D.Ala.1925), rev'd on other grounds sub nom. Hennings v. United States, 13 ... ...
- Dickey v. Burnet, 8963.