THE SEBASTOPOL

• Decision Date: 12 January 1931
• Citation: 47 F.2d 336
• Parties: THE SEBASTOPOL THE RUTH MILDRED. UNITED STATES v. SODERBERG.
• Court: U.S. District Court — Southern District of New York

47 F.2d 336 (1931)

THE SEBASTOPOL THE RUTH MILDRED UNITED STATES v. SODERBERG.

District Court, S. D. New York.

January 12, 1931.

Robert E. Manley, Acting U. S. Atty. of New York City (Arthur H. Schwartz, of

New York City, of counsel), for the United States.

Louis Halle, of New York City (Milton R. Kroopf, of New York City, of counsel), for claimant.

WOOLSEY, District Judge.

These libels are dismissed, without costs.

I. The Sebastopol, a trawler, of St. Johns, Newfoundland, was seized by Coast Guard officers of Coast Guard vessel No. 145, on August 11, 1927, in the Narrows, between the Upper and Lower New York Bays, at about 2:30 a. m. whilst masquerading under the name of the Westmoreland, of Norfolk.

When the Sebastopol was boarded, a man named Donald McDonald, representing himself as her master, produced her register, which gave her true name and home port as above, and, on being asked if he had cargo, admitted that he had a liquor cargo, which turned out, on examination, to contain 4,841 cases of Scotch whisky. She was then on a course that would take her as far as possible from Quarantine. Thus apparently she hoped to avoid detection and get up to New York City.

The painting of her name plates and the appearance of their having been newly attached attracted the attention of the Coast Guards when they turned the searchlights of the No. 145 on her.

When she was boarded, an open case of liquor was found in the pilot house. The ship's documents, some of which were discovered only after considerable search, consisted of her registry as above, an agreement and account with her crew, and a manifest which was false, in that it did not list the liquor cargo.

A variety of name plates were also found aboard, so she was prepared for almost Protean transformations. She might be, at will, the Sebastopol of St. Johns, Newfoundland, the May Emily of St. Johns, Newfoundland, or the Westmoreland, of Norfolk, Va.

The Sebastopol and her cargo of liquor, samples of which marked in evidence showed an illegal alcoholic content, were turned over to the Customs. Her master and crew were charged in a complaint before a United States commissioner with violation of the National Prohibition Act.

By agreement, the foreign value of the cargo of Scotch whisky is fixed at $10 per case, making its total value $48,410. The vessel was appraised at $7,500.

A stipulation for value in this sum following the usual form, has been filed, and the vessel has gone on her way.

II. The vessel in the second case is the auxiliary schooner Ruth Mildred. She is a vessel of the United States licensed from Gloucester, Mass., to engage in the cod and mackerel fisheries. She is 82 feet in length, 21.5 in depth, and her official number is 222,-218.

Shortly after midnight on March 1, 1928, the United States Coast Guard vessel, No. 148, in charge of Coast Guard Officer George Watson, since deceased, was patrolling the eastern entrance of Long Island Sound. Whilst the No. 148 was in the vicinity of Race Rock, off the coast near New London, Conn., she observed the Ruth Mildred proceeding under power to the westward. On being hailed, her master said she was bound for New York.

Although the visibility was good and the wind moderate, the sea was so rough as to make it impossible to board the schooner in the darkness. Accordingly, Watson, the captain of the No. 148, knowing that the Ruth Mildred was under suspicion, sent a wireless message to the patrol office of his service on Block Island, and was instructed by those there in charge to trail the schooner and watch her discharge.

Through the night the vessels proceeded ?€” practically in company ?€” westward through Long Island Sound, finally arriving in the latter part of the morning at the foot of Fulton street, East River, New York City, where the Ruth Mildred tied up at a wharf. The members of her crew were already on deck, and at once piled ashore. A few minutes later the Coast Guard vessel No. 148 came alongside. By that time the whole crew of the Ruth Mildred had disappeared.

About 11:15 a. m. the captain of the No. 148 and some of his crew went on board the schooner and found that even her captain had left her.

About 1 p. m. the captain of the Ruth Mildred, who turned out to be Nils Soderberg, her owner and the claimant in this suit, came on board and showed his documents to the captain of the No. 148.

In pursuance of his instructions, the captain of the No. 148 stated that he would remain alongside the Ruth Mildred until her cargo was unloaded. When he made this intention known to the captain of the Ruth Mildred, the latter said: "You have got a rummy this time," and, "If that is the case I might as well tell you the truth. You have a good catch here. I am loaded up to the gills with liquor," which was a most felicitous metaphor, because his liquor cargo was hidden beneath a convenient veneer of fresh fish.

Subsequently, when asked how much liquor he had on board, the captain of the Ruth Mildred, though admitting she was fully loaded, did not state the amount of his cargo. When asked where he got the liquor, he said that he had secured it in the vicinity of "Georges Banks" ?€” properly St. George's Banks ?€” which are fishing banks about one hundred miles east of Cape Cod.

In view of this admission, the Ruth Mildred was seized, and subsequently a search was made.

On board her were found 220 boxes and 170 bags of rye whisky and other alcoholic liquor, of a potable quality, containing in excess of the legal one-half of 1 per cent. of alcohol by volume.

The estimated foreign value of this liquor was $27,800 and the estimated value here was $62,400.

On April 2, 1928, a libel was filed against the Ruth Mildred to enforce penalties and forfeiture against her on the ground that she had become subject to forfeiture under section 4377 of the U. S. Revised Statutes (title 46, U. S. Code, ? 325 46 USCA ? 325), because she had violated the terms of her license, in that she had been found engaged in transporting intoxicating liquors within the territorial waters of the United States when she was licensed only to engage in the cod and mackerel fisheries.

The Ruth Mildred was duly appraised at $10,000, and was later released on the filing of a claim and answer by Nils Soderberg, her owner, and a stipulation for her full appraised value in the sum of $10,000.

III. The case of the Ruth Mildred differs from the case of the Sebastopol in two respects only: First, in the fact that it is contended that search and seizure of the Ruth Mildred was illegal, as not being founded on reasonable grounds; and, second, in that she is a vessel of the United States, and the statute invoked for her forfeiture is a statute, title 46, U. S. Code, ? 325 (46 USCA ? 325), applying to vessels registered, enrolled, or licensed in the United States requiring them to confine themselves to the trade for which they are licensed.

Whilst these cases were not tried together, they are submitted together, and a single opinion will serve for the disposal of both.

IV. Before proceeding to the main question, there are some futile contentions made by both the parties which have to be met and put aside.

These contentions and my comments thereon are as follows:

A. The claimant of the Ruth Mildred contends that there was an illegal search and seizure in that case.

I hold that the seizure of the Ruth Mildred was justified. There was not any search, legal or illegal, if one uses that word to mean an act precedent to, and resulting in, a seizure.

A search was forestalled by the confession of her captain, above noted, that the Ruth Mildred was a rum runner. Such a confession justified the seizure and made a search unnecessary just as a plea of guilty justifies a sentence and makes a trial unnecessary.

The reason for this is, of course, that, by his confession, the suspect and, by his plea of guilty, the prisoner, definitely elects not to stand on his constitutional rights, and so expressly waives them.

Surely after such a confession as was here made the most enthusiastic champion of the Bill of Rights would not seriously contend that a government officer engaged in law enforcement should at once withdraw on constitutional grounds and seek a search warrant from the nearest United States commissioner. As Judge Coleman aptly remarked in another connection where a claim of illegal search had been put forward, that "Common sense is not barred by the Fourth and Fifth Amendments." In re Kips Bay Brewing & Malting Co. (D. C.) 29 F.(2d) 836, 837.

B. The government contends, with what relevancy does not clearly appear to me, that I should take into consideration in dealing with these cases that executive clemency is often extended to innocent victims of forfeiture.

The consideration was urged in the government's brief before the Circuit Court of Appeals for the Fourth Circuit in the case of The Pilot, 43 F.(2d) 491, and was mentioned by Judge Northcott in his opinion at page 493.

My answer to this contention does not interest me, because I am dealing with rights under the law and not with possible clemencies.

C. The government also contends that, by filing stipulation for value, the claimant waived the right to contend that the libels are brought under the wrong statutes.

My answer to that contention is that, if the owner of property proceeded against in rem files a stipulation for value under the common practice here or a bond for double the amount of the libelant's claim under title 28, U. S. Code, ? 754 (28 USCA ? 754), or section 26 of title 2 of the National Prohibition Act (27 USCA ? 40), he does not waive any defense which may be available to him.

Chief Justice Waite, sitting here on Circuit, said in The Fidelity, 16 Blatchf. 569, 8 Fed. Cas. 1189, at page 1192, No. 4758:

"The stipulation filed to obtain the release of the tug is not a waiver of the question as to the original liability of the tug. The stipulation takes...