THE W. TALBOT DODGE

• Decision Date: 12 January 1926
• Citation: 15 F.2d 459
• Parties: THE W. TALBOT DODGE. UNITED STATES v. 789 PACKAGES OF WHISKY et al.
• Court: U.S. District Court — Southern District of New York

15 F.2d 459 (1926)

THE W. TALBOT DODGE UNITED STATES v. 789 PACKAGES OF WHISKY et al.

District Court, S. D. New York.

January 12, 1926.

Emory R. Buckner, U. S. Atty., of New York City (Francis A. McGurk, of New York City, of counsel), for libelant.

William H. Lewis, of Boston, Mass., for claimant.

THACHER, District Judge.

The W. Talbot Dodge is a fishing schooner 45½ feet in length, with a net tonnage of 20 tons. She was built in Noank, Conn., in 1895, and on April 25, 1921, she was licensed and enrolled as a fishing vessel in the coasting trade for one year. Just before the expiration of the year, on April 12, 1922, at about 11:30 p. m., she was observed from a police launch coming up through the Narrows, in the harbor of New York. With the aid of a searchlight, those on board the police launch observed that she had no fishing gear on deck. She was kept under observation without inquiry until she had passed up the East River and was about under the Williamsburg Bridge. The master of the schooner was then asked by one of the police on board the launch what he had on board, to which he responded, "Liquor; about 400-odd cases of Scotch, and 25 barrels of Rye;" that he was on his way to St. Pierre, Canada, under British registry, with sealed hatches, having come from Nassau, Bahama, and expected to stop at Twenty-Fourth street for supplies. When the schooner reached Twenty-Fourth street she anchored. The men on the police launch went ashore and notified their superiors, who communicated with the customs authorities. When the customs officers boarded the schooner, the master produced a clearance under seal of the Comptroller of Customs at Nassau, N. P., showing that the schooner had cleared at Nassau for St. Pierre, Miquelon, for orders, with a cargo of 2 barrels of gin and one barrel of whisky stowed on deck, and 22 barrels of whisky and 405 cases of whisky stowed in the hold. The clearance paper bears an indorsement in ink, "With hatches sealed by Customs Department, Nassau, Bahamas." The master again stated that he was going to St. Pierre; that he had come into port for provisions. He inquired the way to the custom house, and was directed how to get there. On the morning of the following day he appeared at the custom house, and was examined by a representative of the collector and by an assistant United States attorney. Stenographic notes of his examination were taken, and were offered and received in evidence.

On behalf of the claimant it is insisted that his admissions made at that time are incompetent and should be disregarded, citing Packet Co. v. Clough, 87 U. S. (20 Wall.) 528, 22 L. Ed. 406, where in an action at law, and under well-known common-law rules, the admissions of the master of a vessel regarding the happening of an accident thereon, made two days after the event, were excluded. The admiralty rules are different, and the admissions of the master, made after the event, are admissible to charge the ship or her owners. The Potomac, 75 U. S. (8 Wall.) 590, 19 L. Ed. 511; The Enterprise, 2 Curt. 329, Fed. Cas. No. 4,497; The Lisbonense, 53 F. 293, 3 C. C. A. 539; The S. S. Wilhelm, 59 F. 169, 8 C. C. A. 72; The Fanwood (D. C.) 61 F. 523; The Severn (D. C.) 113 F. 578; Frederick Leyland & Co. v. Hornblower, 256 F. 289, 296, 167 C. C. A. 461. The rule of these decisions is a general rule of evidence in admiralty. It arises from the peculiar relation of the master to the ship, and from the fact that admiralty courts are not bound by common-law rules requiring the exclusion of evidence in the trial of issues before a jury.

There is more reason for receiving the statements of the master to the port authorities regarding the business of his ship than there is for receiving his explanations of a collision after the occurrence. Indeed, the instant case is stronger than the cited cases, because the circumstances of the schooner's arrival were such as to demand explanation, and the master, in the performance of his duty, was undoubtedly called upon to explain to the authorities of the port his reasons for coming to anchor in the East River at Twenty-Fourth street, when on a voyage from Nassau to St. Pierre. He himself undertook to make this explanation, inquiring of the officers who came aboard how he could get to the custom house, where he voluntarily went the next day. In a court of admiralty, his statements then made should not be excluded from the consideration of the court, in its endeavor to arrive at the truth. He was available as a witness, could have been called to explain or qualify his admissions, and the claimant could have contradicted what he had said, or shown its falsity by the testimony of others, if in fact it was not true.

Giving due weight to unavoidable inferences from admitted circumstances, the following facts appear from Hadley's admissions, and the record of proceedings in the Supreme Court of the Bahama Islands: Hadley, the master, had previously brought into the port of New York and landed at the foot of West Thirtieth street a large quantity of intoxicating liquors for one Fay, whose business he described as "the bootlegging business." In this business Fay had used the schooner W. Talbot Dodge, libeled in this proceeding. Hadley, in partnership with one Edward Manchester, arranged to purchase the Dodge, which was then lying at Norfolk. Their plan was to take the schooner to Nassau, and bring back to New York a cargo of intoxicating liquors, which Fay agreed to dispose of for a consideration to be paid to him of $5,000. This $5,000 was to be paid to Fay for "protection," and in this connection Fay told Hadley, "I want $5,000, and leave it to me, and I will get rid of it for you," referring, of course, to the cargo of liquor which was to be brought into New York. Hadley and Manchester, having purchased the ship from Fay, engaged a crew and dispatched her from Norfolk to Nassau. They then proceeded to Nassau themselves, where they also met Fay, to arrange for the purchase of the cargo, and incidentally for the transfer of the ship to British registry.

This transfer, it appears, they accomplished in the following manner: One Allan Harcourt Kelly, the present claimant herein, was procured to file a libel against the ship shortly after her arrival at Nassau, alleging a claim of $1,200 for necessaries supplied to the ship, and for money payable to the plaintiff, for money lent and advanced by the plaintiff, and for money paid at the request of the defendant. Manchester immediately appeared as owner, consented to a decree, and requested an early sale. Upon the sale Kelly was the purchaser, and, being a British subject, he promptly procured registry of the ship under British law. This entire proceeding was collusive and fraudulent, in the sense that there was no claim or lien against the ship as alleged in the libel. The court was...