United States v. 200 WATCHES

• Decision Date: 25 April 1946
• Citation: 66 F. Supp. 228
• Parties: UNITED STATES v. 200 WATCHES. SAME v. 27 WATCHES, etc.
• Court: U.S. District Court — Southern District of New York

66 F. Supp. 228

UNITED STATES v. 200 WATCHES.

SAME v. 27 WATCHES, etc.

District Court, S. D. New York.

April 25, 1946.

John F. X. McGohey, U. S. Atty., of New York City (Thomas McCall, Asst. U. S. Atty., of New York City, of counsel), for the Government.

Dow & Symmers, of New York City (Wilbur E. Dow, Jr., of New York City, of counsel), for petitioners.

KENNEDY, District Judge.

Petitioners' property has been seized by the customs authorities and they now ask that it be restored to them. 22 U.S.C.A. § 403. The ground of the seizure was that petitioners were guilty of an attempt to export the articles seized in violation of law. 22 U.S.C.A. § 401.

Both proceedings were tried together, and the facts which I now set forth are derived from statements of counsel at the trial, and from such allegations of the petitions as are undisputed.

On October 20, 1945, S. S. Salem Maritime sailed from Los Angeles, California, bound for Yokohama, Japan. Before she sailed, her master, petitioner Robertson, purchased 200 watches which he took on board with him. Her purser, petitioner Ressler, at the same time purchased and took on board 27 watches, 24 cigar lighters, and 22 fountain pens. It is clear beyond dispute that these officers intended to sell these articles to Navy personnel stationed in the Pacific. No attempt was made by either petitioner to secure a "General United States License" permitting shipment to members of the armed forces (F.R. April 25, 1945, p. 4469), nor did either petitioner make a declaration that the articles were intended to be exported (F.R. April 25, 1945, p. 4467). In other words, it was the intention of the petitioners to take these articles out of the country for sale, and if their action constituted "exporting" there is no doubt that on October 20, 1945 they were attempting to violate the statute which the government has invoked. 22 U.S.C.A. § 401.

However, when Salem Maritime arrived at her first port of call (Honolulu) her orders were changed, and she was rerouted back to continental United States. She reached Galveston, Texas, on or about November 17, 1945, whereupon both petitioners declared the articles which are the subject of these proceedings. The customs authorities then directed that the property remain on the ship under seal. The ship proceeded to the Port of New York, and on December 4, 1945, the customs authorities here seized the property. Six days later, namely on December 10, 1945, warrants ordering the further detention of the property were issued out of this Court. 22 U.S.C.A. § 402. These petitions were then filed demanding restoration of the seized property (22 U.S.C.A. § 403) on three grounds: (1) That no "proper warrant" was issued or applied for within ten days after the seizure, (2) that the warrant actually issued does not conform to the statute, and (3) that the warrant issued does not "state the true facts of the case," by which petitioners mean that the seizure was not justified under the statute.

I admit that on its face the petition seems to be merely an attack upon the form of the warrant. But this is only a surface phase of the real question that emerges: Does the statute (22 U.S.C.A. § 401) authorize a seizure under circumstances where the owner of the property formed the intention of transporting it from continental United States in a vessel flying the flag of the United States for sale on board American men of war in the Pacific, and where this intention was frustrated, and the property returned to this continent?

The act authorizes seizure by the customs authorities (22 U.S.C.A. § 401): "Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war, or other articles, in violation of law, or whenever there shall be known or probable cause to believe that any such arms or munitions of war, or other articles, are being or are intended to be exported, or shipped from, or taken out of the United States, in violation of law, * * *." The customs authorities may seize "any articles or munitions of war about to be exported or shipped from, or taken out of the United States, in violation of law * * *." It will be observed that so far as the intention of the exporter or the status of the goods is concerned, the statute employs only verbs in the present tense. To be subject to seizure, it is necessary that the articles be "about to be exported." The probable cause spoken of on the part of the customs authorities concerns itself with articles which "are being or are intended to be exported." The attempt to export which offends the statute is one which "is made."

Two arguments are really urged in support of the petitions to restore. It is said that this was not a case of "exporting" and reliance is placed by the petitioners on cases like United States v. Hill, 2 Cir., 1929, 34 F.2d 133, where, on the basis of holdings like that in Swan & Finch Co. v. United States, 1903, 190 U.S. 143, 23 S.Ct. 702, 47 L.Ed. 984, and National Lead Co. v. United States, 1920, 252 U.S. 140, 40 S.Ct. 237, 64 L.Ed. 496, Judge A. N. Hand reaches the conclusion that "exportation" means a "severance of goods from the mass of things belonging to this country, with an intention of uniting them to the mass of things belonging to some foreign country." If the statutory language here must be strictly construed I suppose that the words "shipped from" and "took out" are all colored by the word "export," and some difficulty might be found in determining that these petitioners were actually severing the seized articles from the mass of things belonging to this country, and uniting them to the mass of things belonging to a foreign country. However, having in mind the purposes of the statute and the circumstances under which it was enacted, I believe that it should be fairly and reasonably construed to bring within its scope what the petitioners did here, even though a narrow interpretation of the word "export" might be justified under other circumstances....