United States v. Bengochea

• Decision Date: 28 March 1922
• Docket Number: 3815.
• Citation: 279 F. 537
• Parties: UNITED STATES v. BENGOCHEA et al.
• Court: U.S. Court of Appeals — Fifth Circuit

279 F. 537

UNITED STATES v. BENGOCHEA et al.

No. 3815.

United States Court of Appeals, Fifth Circuit.

March 28, 1922

William M. Gober, U.S. Atty., of Lakeland, Fla., and Damon Yerkes and Maynard Ramsey, Asst. U.S. Atty., both of Jacksonville, Fla.

Edwin R. Dickenson, of Tampa, Fla., for appellees.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

This was a libel by the United States against the schooner Reemplazo, her boats, tackle, etc. The original libel contained the following:

'That C. C. Light, inspector of customs of the district of Florida, being then and there, on the 15th day of May 1920, duly authorized by law to make such seizures, seized said schooner Reemplazo, her boats, tackle, apparel and furniture near North Anclote Key and within four leagues of the coast of the United States, said schooner, her boats tackle, apparel, and furniture, being the property of some person or persons to the said United States attorneys unknown, and brought her to Tampa, Florida, in the said Southern district of Florida, where she now is as forfeited to the United States for the following, among other, causes:

'That the said schooner, being then and there laden with merchandise and bound for the port of Tarpon Springs, or some other port within the jurisdiction of this court, arrived and cast anchor within four leagues of the coast of the United States; that said schooner laden with cargo as aforesaid, and being bound for the said port of Tarpon Springs, or some other port within the jurisdiction of this court, and having then and there arrived within four leagues of the coast of the United States, it then and there became and was the duty of the master of said schooner, upon demand by an officer of the customs, to produce the manifests in writing which such master is required to have on board such vessel; that C. C. light, inspector of customs of the state of Florida, on the said 15th day of May, 1920, made demand upon the master of said schooner to produce said manifests; that said master, upon being demanded as aforesaid to produce the manifests in writing required by law, then and there failed to produce such manifests to the said C. C. Light, inspector of customs of the state of Florida, for inspection, and did then and there fail to deliver to the said officer true copies of any such manifest, in violation of section 2811 of the Revised Statutes of the United States and other acts of Congress in such cases made and provided.'

The libel was amended by adding the following averment:

'That by reason of the premises aforesaid and the provisions of section 2814 of the Revised Statutes of the United States the master of said vessel became and is liable to a penalty of not more than $500 payable to libelant, and that under the provisions of section 3088 of the Revised Statutes said vessel shall be held for the payment of such penalties and may be seized and proceeded against summarily to recover the same.'

On the submission of the case on the pleadings and the evidence adduced, the court found as follows:

'On May 15, 1920, the schooner, a Cuban fishing smack, was boarded by the deputy collector of customs, while at anchor some six or seven miles north of Long Key, and demand for the manifest was made. During the time the master was searching for it, it was discovered by the officers that the vessel had intoxicating liquors and some Chinamen on board-- the liquors constituting her only cargo.

'After this discovery, little or no attention was paid to the question of the manifest. The next day, after the seizure of the schooner, a clearance certificate from the authorities in Havana was produced, showing that the schooner cleared for a fishing trip on May 8, 1920. After the vessel left the harbor of Havana, the liquors and Chinamen were put on board, and she sailed, intending to deliver the liquors and Chinamen to a boat or boats at sea, to be transported in said boat or boats to Tarpon Springs, or in that vicinity. To accomplish this delivery the vessel was anchored at the point where she was boarded and seized, awaiting the appearance of the parties for whom the liquors and Chinamen were intended.'

The ground on which the libel was dismissed is disclosed by the following statement in the opinion rendered:

'The importation of liquors being prohibited for any purpose by the War-Time Prohibition Act, the vessel was not loaded with merchandise as defined by section 2766, R.S. (Comp. St. Sec. 5462), and section 2811 (Comp. St. Sec. 5508) is not applicable.'

That opinion contained the following:

'It is strenuously contended by the claimants that, the seizure being made more than a marine league from the shore, there could be no cause of action based on this statute. The validity of the four-league limit has not, to my knowledge, been directly passed on by the courts, but in many cases it seems to be recognized as valid and binding upon all ships laden with merchandise bound to a port in the United States. In this case, however, it is not necessary to decide the question. The testimony in the case shows that the only cargo upon said vessel was intoxicating liquors.'

That the libel was dismissed on an untenable ground is shown by the recent ruling of this court in two cases similar to this one, except as to a feature hereinafter mentioned-- United States v. Santini, claimant, etc., and United States v. Lowe, claimant, etc., 279 F. 534, U.S. Circuit Court of Appeals, Fifth Circuit, present term.

In behalf of the appellees it is contended that the action of the court in dismissing the libel is sustainable on the ground, disclosed by the evidence and the court's finding, that the demand for the manifest and the seizure were made more than a marine league from the shore. Section 2806, R.S. (Comp. St. Sec. 5503), provides that:

'No merchandise shall be brought into the United States, from any foreign port, in any vessel unless the master has on board manifests in writing of the cargo, signed by such master.'

What the manifest must contain is prescribed by section 2807, R.S., as amended by the Act of June 3, 1892, 27 Stat. 41 (Comp. St. Sec. 5504). Section 2811, R.S. (Comp. St. Sec. 5508), provides that:

'Every master of any vessel laden with merchandise, and bound to any port of

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