THE SOPHIE RICKMERS

• Decision Date: 17 July 1930
• Citation: 45 F.2d 413
• Parties: THE SOPHIE RICKMERS. RICKMERS RHEDEREI AKTIENGESELLSCHAFT v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

45 F.2d 413 (1930)

THE SOPHIE RICKMERS RICKMERS RHEDEREI AKTIENGESELLSCHAFT v. UNITED STATES.

District Court, S. D. New York.

July 17, 1930.

Burlingham, Veeder, Fearey, Clark & Hupper, of New York City, for plaintiff.

Charles H. Tuttle, U. S. Atty., of New York City (Samuel C. Coleman, of New York City, of counsel), for the United States.

MACK, Circuit Judge.

The Sophie Rickmers, flying the German flag, and registered at Hamburg, entered the port of New York on September 27, 1921, on a voyage from Chaparra. She was owned by the plaintiff, a German corporation with its principal place of business at Hamburg. As a condition of entry, the collector of customs at the port imposed upon the vessel and collected a tonnage duty of 50 cents per ton, claiming to act under Rev. St. § 4219 as amended by the Act of Feb. 27, 1877, 19 Stat. 250 (46 U. S. Code, § 121 46 USCA § 121) and section 4225 (46 U. S. Code § 128 46 USCA § 128) set out in the margin.¹ A tax of 6 cents per ton was also imposed and collected under section 36 of the Act of August 5, 1909, 36 Stat. 111 (46 U. S. Code § 121 46 USCA § 121). The plaintiff does not contest the validity of the 6-cent tax. It filed a petition, however, under the Tucker Act (28 U. S. Code § 41(20) 28 USCA § 41 (20)), for the recovery of the duties paid under section 4219 and section 4225. It is the contention of the plaintiff that the portions of section 4219 and section 4225 which are relevant to the tax in suit have been repealed by subsequent legislation; that even if these sections are still in force, the Sophie Rickmers comes under the exemption provided by Rev. St. section 4229 and section 4230 and/or the Act of January 7, 1824 (4 Stat. 2), and that in any event, the Hanseatic Convention of 1827 and the treaty of 1828 with Prussia free it from these duties. The government moved to dismiss the petition for failure to state facts sufficient to constitute a cause of action.

While, in the light of the conclusion I have reached with regard to the treaties involved, it would be unnecessary to determine the other contentions, I deem it nevertheless proper, lest I may be found to have erred in that conclusion, to express my views thereon.

1. There has been some difference of opinion among officers of the Executive Department as to the present status of sections 4219 and 4225. The solicitor of the Department of Commerce was of the opinion that the 50-cent tax in question was abrogated by section 36 of the Payne-Aldrich Tariff Act of August 5, 1909, 36 Stat. 111; the Bureau of Navigation and the Attorney General, on the other hand, were of the contrary opinion. 33 Op. Attys. Gen. 174 (1922); 34 Op. Attys. Gen. 577 (1925).

Section 4219, as amended by Act of February 27, 1877 (19 Stat. 250), provides in its first part for a duty of 50 cents per ton on foreign vessels and 30 cents per ton on foreign vessels built in the United States. The second part of the section provides that "in addition to the tonnage-duty above imposed" a tax of 30 cents per ton should be paid on all vessels entered from any foreign port. Each part contains a proviso saving rights or privileges acquired by any foreign nation under the laws and treaties of the United States relative to the duty of tonnage on vessels.

The first part of the section is frankly discriminatory; the second part, on the other hand, embraces all vessels from foreign ports, including vessels flying our own flag. This distinction must be kept in mind in tracing the subsequent course of tonnage duty legislation.

Section 4219 was amended by section 14 of the Shipping Act of June 26, 1884 (23 Stat. 57) as set out in the margin.²

The duty imposed is stated to be "in lieu of the tax on tonnage of thirty cents per ton per annum heretofore imposed by law." Section 4219 refers to two taxes of 30 cents, the one in the first part relating to foreign vessels built in the United States, the other relating to the blanket tax imposed on all vessels from foreign ports. The amendment creates a classification which fails to differentiate between American and foreign vessels, but depends rather upon the port from which the vessel comes. In its adoption of this test, the amendment becomes obviously referable to the second part of section 4219. The discriminatory provisions of the first part of that section remain unaffected, because the amendment deals with a different subject matter. Nor are the duty and the tax inconsistent for section 4219 in terms provided for their coexistence.

This conclusion is strengthened by a consideration of the language employed by Congress. The duties imposed by the Act of 1884 were "in lieu of the tax on tonnage." The first part of section 4219 imposed certain duties. The last paragraph of the section reads: "In addition to the tonnage duty above imposed, there shall be paid a tax, at the rate of thirty cents per ton." The amendment of 1884, therefore, seems to be a substitution for that portion of section 4219 designated as "tax."

Section 14 of the Act of 1884 was amended by section 11 of the Shipping Act of June 19, 1886 (24 Stat. 81). That amendment extended the nearby region from the ports of which a lower duty was charged. The reciprocity provision was extended as follows:

"Provided, That the President of the United States shall suspend the collection of so much of the duty herein imposed, on vessels entered from any foreign port, as may be in excess of the tonnage and light-house dues, or other equivalent tax or taxes, imposed in said port on American vessels by the Government of the foreign country in which such port is situated, and shall, upon the passage of this act, and from time to time thereafter as often as it may become necessary by reason of changes in the laws of the foreign countries above mentioned, indicate by proclamation the ports to which such suspension shall apply, and the rate or rates of tonnage-duty, if any, to be collected under such suspension."

This went beyond the reciprocity provision in the Act of 1884 which applied only to vessels entered from nearby countries.

Another change, and this is the one relied on by plaintiff, was effected by section 36 of the Payne-Aldrich Tariff Act of August 5, 1909 (36 Stat. 111) (46 U. S. Code § 121 46 USCA § 121 and note). That section provides as follows:

"Sec. 36. That a tonnage duty of two cents per ton, not to exceed in the aggregate ten cents per ton in any one year, is hereby imposed at each entry on all vessels which shall be entered in any port of the United States from any foreign port or place in North America, Central America, the West India Islands, the Bahama Islands, the Bermuda Islands, or the coast of South America bordering on the Caribbean Sea, or Newfoundland, and a duty of six cents per ton, not to exceed thirty cents per ton per annum, is hereby imposed at each entry on all vessels which shall be entered in any port, * * * not, however, to include vessels in distress or not engaged in trade. * * *

"Section forty-two hundred and thirty-two of the Revised Statutes, and sections eleven and twelve of chapter four hundred and twenty-one of the laws of eighteen hundred and eighty-six, approved June 19, 1886, and so much of section forty-two hundred and nineteen of the Revised Statutes as conflicts with this section, are hereby repealed."

The motive for the inclusion of section 36 of the Payne-Aldrich Tariff Act seems to have been a desire to abolish reciprocity. It was found that the then existing provisions for reciprocity reduced the revenue without affording a commensurate gain to American shipping abroad, because our merchant marine was small in comparison with the commercial fleets of the other maritime countries. See 44 Cong. Rec., 61st Cong., 1st Sess., pp. 4158-4161. Two reasons, therefore, lead to the conclusion that section 36 of the Act of 1909 did not supersede the first part of section 4219 of the Revised Statutes. First, it adopts with some changes the geographical distinction between nearby ports and others, announced in the Acts of 1884 and 1886, and applied to all vessels irrespective of nationality of ownership. Second, its elimination of reciprocity makes it complementary to rather than inconsistent with the discriminatory provisions of section 4219 and section 4225.

It is argued that the absence of the words "in lieu" in the 1909 Act distinguishes it from the Acts of 1884 and 1886, and indicates a complete substitution for the 30 and 50 cent tonnage duties of section 4219. The comparison of subject-matter hereinabove discussed disposes, in my judgment, of that contention. The Act of 1886 had already superseded the last part of section 4219 as amended by the Act of 1884. The specific repeal of section 11 of the Act of 1886 provided for in section 36 of the Act of 1909 indicates sufficiently the type of tax sought to be affected. To have restated it in terms of a tax "in lieu" of the 30-cent tax of the last paragraph of section 4219 would have been supererogation. I am therefore of the opinion that the first two paragraphs of section 4219 and of section 4225, which concededly stands or falls with it, are in full force.

2. In addition to the Treaties of 1824 and 1828, hereinafter considered, plaintiff urges in support of the petition sections 4229 and 4230 of the Revised Statutes (46 USCA ch. 5 note). These sections were derived from sections 2-4 of the Act of May 24, 1828 (4 Stat. 308, c. 111), and provided that no higher rate of duties should be imposed on "vessels of Prussia" than were payable on vessels of the United States. The section was to continue in force "during the time that the equality for which it provides shall, in all respects, be reciprocated in the ports of Prussia and her dominions; and if at any time hereafter the equality shall not be reciprocated in the ports of Prussia and her dominions, the President may issue his proclamation, declaring that fact, and thereupon the section...