United States v. Picou, 7023.
| Decision Date | 26 June 1934 |
| Docket Number | No. 7023.,7023. |
| Citation | 71 F.2d 854 |
| Parties | UNITED STATES v. PICOU. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alex C. Birch, U. S. Atty., and J. E. Meredith, Asst. U. S. Atty., both of Mobile, Ala., for the United States.
Palmer Pillans and Robt. T. Ervin, Jr., both of Mobile, Ala., for appellee.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
The United States filed a libel of information, in two counts, for the condemnation and forfeiture of the motorboat Sterling. The libel is inartificially drawn but sufficiently alleges the following facts: The Sterling was granted a license by the United States for the coasting trade, on May 31, 1932. Under the command of her owner, Wilce Picou, she proceeded from an unknown point in the United States and on November 18, 1932, was discovered by the Coast Guard at a point on the high seas about 19 miles off the Louisiana coast, alongside of a foreign vessel, the Leon Juin, and was seized. It was the intent and purpose of the Sterling to transfer intoxicating liquor from the other vessel and illegally import it into the United States. The first count charges violation of Rev. St. § 4377 (46 USCA § 325) by engaging in a trade other than that for which she was licensed and the second count charges violation of Rev. St. § 4337 (46 USCA § 278) by engaging in a foreign voyage without surrendering her license and without being registered. The libel was dismissed on exceptions. This appeal followed.
Revised Statutes § 4377 (46 USCA § 325), so far as necessary to quote, provides:
"Whenever any licensed vessel * * * is employed in any other trade than that for which she is licensed, * * * such vessel with her tackle, apparel, and furniture, and the cargo, found on board her, shall be forfeited."
We may put aside as unimportant the charge that the Sterling had engaged in a foreign voyage without surrendering her license. As applied to the facts alleged, on this point the authorities are in conflict. It would serve no good purpose to discuss them since if she was engaged in a trade other than that for which she was licensed, she would be subject to forfeiture.
Transporting intoxicating liquor from a vessel on the high seas, to be illegally imported into the United States, would constitute a violation of a coastwise license. The Rosalie M. (D. C.) 4 F.(2d) 815, affirmed (C. C. A.) 12 F.(2d) 970; U. S. v. The Ruth Mildred, 286 U. S. 67, 52 S. Ct. 473, 76 L. Ed. 981. However, it is argued that the libel does not charge that the Sterling had engaged in a trade other than that for which she was licensed but merely alleges an intent to do so. If this were true, the point would be well taken but the libel does not charge merely intent. It charges the overt act of engaging in a voyage, with an unlawful intent.
As used in the navigation acts, the term "trade" is synonymous with "business." The trade or business of a vessel licensed for the coastwise trade is the transportation of freight and passengers for hire between ports of the United States. In order to ply her trade, she must engage in a voyage. Whether the intent at its inception fixes the character of an uncompleted voyage is the question presented for decision. Much light is shed upon it by the following authorities.
Rev. St. § 4377 (46 USCA § 325) is derived from the Act of February 18, 1793 (1 Stat. 316). In the case of The Active, 7 Cranch 100, 3 L. Ed. 282, it appears that The Active was licensed for the fishing trade. She left her dock and was seized before she had gotten out of the harbor. It was held that sailing laden with goods, with the intent to carry them to another place, without a license therefor, was a violation of the act of 1793, and she was subject to forfeiture. In the case of The Eliza, Fed. Cas. No. 4,346, it was held by Mr. Justice Story, on circuit, construing the same act, that a fishing vessel by taking on board...
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