THE VINCES

• Decision Date: 13 June 1927
• Docket Number: No. 928.,928.
• Citation: 20 F.2d 164
• Parties: THE VINCES.
• Court: U.S. District Court — District of South Carolina

20 F.2d 164 (1927)

THE VINCES.

No. 928.

District Court, E. D. South Carolina.

June 13, 1927.

J. D. E. Meyer, U. S. Atty., and Louis M. Shimel, Asst. U. S. Atty., both of Charleston, S. C.

John I. Cosgrove and A. R. McGowan, both of Charleston, S. C., for respondent.

ERNEST F. COCHRAN, District Judge.

The United States filed a libel against the schooner Vinces and her cargo. The first cause of action alleges in substance that the Vinces was bound for the United States, and was observed by the United States Coast Guard cutter Mascoutin within 4 leagues of the coast (commonly referred to as the 12-mile limit); that the Mascoutin tried to stop her, but the Vinces attempted to escape, and was thereupon compelled by force to stop; and, upon her manifest being demanded, the master of the Vinces failed to produce any manifest, and there was no manifest aboard. It is also alleged that there was found aboard a cargo of intoxicating liquors and that the master claims the cargo.

The second cause of action alleges that the Vinces was fraudulently endeavoring to import into the United States, within 12 miles of the coast, and within one hour's sailing distance of the United States, certain alcoholic beverages, and that the master and crew attempted to introduce the same into the commerce of the United States by making certain false and fraudulent statements.

The third cause of action alleges that the Vinces was employed by her master in fraudulently endeavoring to import alcoholic beverages within the territorial jurisdiction of the United States, and within 12 miles of the coast of the United States, and within one hour's sailing distance thereof, and that the master and crew did fraudulently and knowingly import and facilitate transportation of foreign merchandise, to wit, intoxicating liquors, without paying any duty thereon or intending to pay the same.

The libel prays for certain penalties, which are claimed to be a lien upon the vessel, and for a forfeiture of the cargo.

The master of the Vinces filed an answer for and on behalf of the Smart Shipping Company, Limited, of Halifax, Nova Scotia, as the owner of the schooner and cargo, and set forth in substance that the Vinces was not bound for the United States, and did not come within 4 leagues of the United States, or within the jurisdiction of the court. The answer further denies any false statements, and alleges that upon demand of the officers of the Mascoutin the master delivered to them all papers in his possession covering the ship and cargo, and that, not being bound to the United States or a port thereof, it was not necessary that he should have any manifest or like paper, and that the papers delivered were sufficient and in proper form for the voyage he was then engaged on, to wit, from St. Pierre, Miquelon, to Nassau, in the Bahamas. The answer sets forth that the seizure was made beyond the 12-mile limit, and certain other defenses which will be adverted to later.

The cause came on to be heard before me, and a number of witnesses were examined on the part of the government, and considerable documentary evidence submitted. The only witness examined on the part of the claimant was the master of the Vinces. The evidence on the disputed issues of fact was largely of a technical nature, involving expert knowledge of the principles of navigation, and the location of the positions of vessels upon the high seas. In view of the nature of the evidence and importance of the case, I shall, before finding the ultimate facts, discuss the testimony as far as practicable, and state some of the details of the facts, which are either admitted or shown beyond peradventure, in order to set forth as far as practicable my reasons for my findings of the ultimate facts.

The Vinces is of British registry, and has a gross tonnage of 82.42 tons, and a registered tonnage of 58.13 tons, a length of 81 feet, a beam of 22.1 feet, and a depth of 8.5 feet, and was during the time of the transactions involved in this case under the control and direction of her master, Michael Gillam. She is a three-masted schooner, but had additional power furnished by two oil engines of 45 horse power each. Without the aid of her sails, and loaded as she was at the time of seizure, she was capable of making, under the power furnished by her engines, 8½ miles an hour. Under both sails and engines, she was capable of still greater speed.

On February 15, 1927, the Vinces cleared from the port of Halifax, Nova Scotia, with a cargo of intoxicating liquors which she had taken aboard at St. Pierre, Miquelon, ostensibly bound for Nassau, in the Bahamas. She obtained from the Canada customs collector at Halifax a clearance certificate for Nassau, with a cargo stated to consist of 1,709 packages of assorted liquors and 100 kegs of malt. The master of the Vinces testified that he had a manifest of the cargo when he left St. Pierre, but that it was the custom for such manifest to be retained by the customs officer at Halifax. Certainly, after leaving Halifax, he had no manifest for the cargo then on board, nor for the cargo on board at the time of the seizure. Under favorable weather conditions the trip from Halifax to Nassau could have been made by the Vinces in 9 or 10 days. The master testified that he had orders to deliver the cargo then on board to another vesset at a certain point on the high seas. The Vinces did not proceed to Nassau, but about 5 days out from Halifax she met the vessel referred to and delivered to that vessel this cargo, somewhere on the high seas off the coast of the United States. The master of the Vinces testified that he did not known the name of this vessel, the name of her master, nor of her owner.

On March 8 and 9, 1927, the Vinces was observed by the officers of the Coast Guard destroyer Shaw, in company with the Dorothy M. Smart, another schooner, on the high seas, in latitude 37 deg. 49½ min. north, and longitude 71 deg. 34 min., about 125 miles from land, and about 120 miles westward of the course from Halifax to Nassau. At this time and place, the officers of the Shaw testified that a large number of packages of liquor were transferred from the Dorothy M. Smart to the Vinces, and the master of the Vinces admitted that the cargo found aboard the Vinces when she was finally seized was the same cargo transferred from the Smart. The only reason the master gave for the transfer was that the Smart was not considered quite seaworthy at that time.

One of the government's witnesses, a colored fisherman named Branch, gave testimony which, in the light of subsequent events, appears significant. He testified that he now lives at Charleston, and was a fisherman, and had fished up and down the coast from Massachusetts to Florida for many years, and was thoroughly familiar with the waters of this coast. He said that he left Charleston on the morning of March 14, 1927, on a fishing trip, and about 10 o'clock in the morning, while he was southeast of the Morris Island lighthouse, near Charleston, he sighted a vessel with a very peculiar rig, which he described; that this vessel was between 8 and 9 miles from shore, and that at that point those aboard the vessel, while they might not be able to see land, could certainly see the Morris Island lighthouse. He stated that he had never in all his experience seen a vessel with just the peculiar rig of the one he saw that day, and that this rig was identical with the rig of the Vinces, which he saw afterwards in the port of Charleston. I was very much impressed with the frankness and demeanor of this witness, and his testimony tends very strongly to show that the Vinces was there at that time.

At 8 o'clock on the morning of March 14 the United States Coast Guard cutter Mascoutin left Charleston lightship with a course laid for Martin's Industry Buoy, near Savannah. Her ordinary coursing speed is about 9 miles per hour. The testimony shows she kept what is denominated a "rough" log book, in which are written in pencil the events of the day, her course, etc., and that the custom was to permit changes and erasures in this log. She also kept what is denominated a "smooth" log, written up in pen and ink by the captain from the "rough" log, and other memoranda, and his own knowledge of the transactions to be recorded. If any changes are made in the "smooth" log, the rule is that the change must be so made as to show what change is made, and initialled by the officer making it. It appears that the smooth log, so far as concerns the transactions now under consideration, was written by the captain the night of the 14th, after the return of the Mascoutin to Charleston. The Mascoutin arrived at Martin's Buoy at 12:33 p. m., but about 4½ miles to the east of the buoy, owing to the current which was setting away from the coast. She came in close to Martin's Buoy and turned for the return trip to Charleston, and set a steering course of 51 deg., which, allowing for deviation, would be 48 true. This course, without any allowance for the current, wind, and other factors, would have kept her within the 12-mile limit and at a distance of 10½ miles from shore at the time and place she first sighted the Vinces in the afternoon of that day. The tide turned about 12 o'clock, and from that time on the current was shoreward. The day was fair, but there was a slight haze.

While the Mascoutin was proceeding upon this course of 48 true, at about 3:52 p. m., she sighted the Vinces astern and to the eastward of her course. The land was not in sight of either vessel. The Vinces was headed northwest, straight to the American shore, in the direction of the mouth of North Edisto river. The Vinces proceeded on this course and crossed the line of the course of the Mascoutin astern, and after crossing continued for about three-quarters of a mile before turning. At about 4 o'clock p. m., the Mascoutin turned eastward and southward to intercept the Vinces. The Mascoutin...