United States v. 1,250 Cases of Liquor

• Decision Date: 14 October 1922
• Citation: 286 F. 260
• Parties: UNITED STATES v. 1,250 CASES OF LIQUOR. THE HENRY L. MARSHALL.
• Court: U.S. District Court — Southern District of New York

286 F. 260

UNITED STATES v. THE HENRY L. MARSHALL.

1,250 CASES OF LIQUOR.

United States District Court, S.D. New York.

October 14, 1922

[Copyrighted Material Omitted]

William Hayward, U.S. Atty., of New York City (John Holley Clark Jr., and Francis A. McGurk, Asst. U.S. Atty., both of New York City, of counsel), for the United States.

Robert H. Elder and Charles H. Hyde, both of New York City, for claimant.

HAZEL District Judge.

The above libels in rem, three in number, filed by the United States, are to recover penalties, and for forfeiture of the sailing vessel Henry L. Marshall and her cargo of 1,250 cases of intoxicating liquor, which was taken aboard for transportation at the British Indies and brought to the United States in violation of section III, H, of the Tariff Act of 1913 (Comp. St. Sec. 5526), and sections 2806-2809 R.S. (Comp. St. Secs. 5503-5506). The libels, by consent of the parties, were tried together, and, as the evidence is applicable to all of them, a single opinion will suffice.

The libel against the cases of intoxicating liquors will be considered first. It alleges the seizure of the sailing vessel and transference of liquors without the consent of the collector of the port, into motorboats about 9 miles east of Atlantic City; that the liquors seized were brought into the Southern district of New York, where they remain; that when the vessel departed from West End Grand Bahamas to this country, immediately preceding her seizure, she had two sets of clearance papers, one stating that the vessel left for Gloucester, Mass., in ballast, the other that she was bound for Halifax, N.S., with 1,500 cases of liquor; that she had no manifest listing liquors on board, as required by sections 2806-2809, and 2814, R.S. (Comp. Ct. Secs. 5503-5506, 5511).

The libels against the vessel allege her seizure by the collector of customs on August 12, 1921, after seizure by the master of the revenue cutter Seneca outside the three-mile limit, and that at such time the vessel was within the jurisdiction of the United States and of this court. In separate counts it is alleged that at various times prior to her seizure the schooner unloaded and transferred liquors into small boats secretly at night, without special license from the collector of the port, for conveyance to the shore at Savannah, Far Rockaway, Montauk Point, and Atlantic City, liquors that had been brought by her from the British West Indies, their value exceeding $400, and on account thereof subjected her to forfeiture and seizure under sections 2872-2874, R.S. (Comp. St. Secs. 5563-5565). It is also separately alleged that the vessel, bound for the United States, on various occasions unloaded its merchandise, to wit, intoxicating liquors, within four leagues of the coast of the United States for the purpose of evading the customs laws, and not due to unavoidable necessity, which subjected her master to a penalty of $1,000 under section 2867, R.S. (Comp. St. Sec. 5555), and the vessel to seizure under section 3088, R.S. (Comp. St. Sec. 5792). It is also alleged that, when the vessel was boarded by officers off the coast of Atlantic City, her captain failed to produce a manifest and became liable under sections 2814 and 3088. A further cause of forfeiture is that unmanifested merchandise, to wit, intoxicating liquor, worth $60,000, was brought into the United States on July 31, 1921, from the British West Indies by said vessel, in violations of sections 2809 and 3088, R.S., while still other allegations are that the vessel arrived from a foreign port within the subport of Greenport and port of New York between April 1, 1921, and July 1st of the same year, without her master making personal report of the arrival within 24 hours, and failure to make written report of the arrival within 48 hours as required by sections 2774, 2775 and 3088, R.S. (Comp. St. Secs. 5470, 5471, 5792).

Paragraph H of section III of the Tariff Act of 1913 in terms makes it an offense for any person or persons to enter or introduce, or attempt to enter or introduce, into the commerce of the United States, any imported merchandise by means of any false statement or of any false or fraudulent practices or devices. Claimant's contention on this point is that the liability of the vessel and cargo must be strictly limited to merchandise to which the false or fraudulent practice directly applies, and hence the liquors illegally introduced by the small boats alone were subject to seizure under the National Prohibition Act (41 Stat. 305), while the 1,250 cases left on board the vessel were not subject to seizure in waters outside the three-mile limit from shore. Although the evidence relating to secretly unloading contraband at Savannah and other points prior to the seizure on August 1, 1921, off the coast of Atlantic City does not warrant seizure of the liquor for past offenses, yet it bears upon the prior transgressions of the master for which the vessel became liable.

The contention that the cargo or any portion thereof was not actually brought into the United States, that it did not consist of merchandise as that word is defined in the act, is not in my opinion maintainable, in view of the evidence showing a deliberate intention to violate the customs and revenue acts. According to the evidence, one Schliefer agreed at Miami, Fla., prior to the shipment of the cases of liquor in question, to purchase of one Crossland the entire cargo of liquor to be brought from West End Bahamas, delivery to be outside the three-mile limit at Atlantic City, as directed by one McCoy, who was the registered owner of the vessel prior to such shipment, and who directed the movements of the vessel from shore, and on land co-operated with Crossland (who had chartered the vessel, as McCoy stated in his letter to the master) in the sale and delivery of liquors. Two clearances were obtained at Grand Bahamas, the port of loading, as heretofore stated-- one for Gloucester in ballast; the other stating that the vessel was bound for Halifax, N.S., with 1,500 cases of liquor. The evidence not only shows that instructions as to the movements of the vessel were given the master by McCoy, but the inference is that he in fact represented the registered owner after his transfer of the vessel to him on her departure for the United States on her trip preceding her seizure. The statute under consideration is not limited merely to the vessel entering or attempting to enter merchandise into the commerce of the United States since the words 'enter or introduce' in my opinion broaden the earlier act.

The evidence shows conclusively that the master intended to introduce and did introduce the liquors into the United States by the participation of small boats which came to the vessel for transference. Such practices by concerted action were fraudulent and a violation of the statute in question. The transfers and deliveries of the liquor at night without the permission of the officials specified in section 2872 was an unlawful unloading. Even though the act of unloading began beyond the the three-mile limit, it continued until the liquor was landed. Such was the holding of Judge Morton in The Grace and Ruby (D.C.) 283 F. 475, recently decided, and I am in accord with his conclusions. The vessel here, as in The Grace and Ruby, actively assisted in the unloading, and by the use of motorboats or other craft caused the fraudulent introduction of the merchandise into the commerce of the United States.

The qualifying words of paragraph H, Sec. III, relating to deprivation of lawful duties, are not believed to be an essential element of the offense, since it comprehensively and in broad terms declares it to be an offense to 'enter or introduce' merchandise into the commerce of the United States by any false or fraudulent practice. U.S. v Cutajar (C.C.) 60 F. 744; U.S. v. Rosenthal (C.C.) 126 F. 776. Nor should the...