Van Camp Sea Food Co. v. United States, 5772.

• Decision Date: 11 February 1936
• Docket Number: No. 5772.,5772.
• Citation: 82 F.2d 365
• Parties: VAN CAMP SEA FOOD CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

82 F.2d 365 (1936)

VAN CAMP SEA FOOD CO., Inc., v. UNITED STATES.

No. 5772.

Circuit Court of Appeals, Third Circuit.

February 11, 1936.

H. D. Montgomery, of Pittsburgh, Pa., and Breed, Abbott & Morgan, of New York City (Wm. L. Hanaway, of New York City, and H. D. Montgomery, of Pittsburgh, Pa., of counsel), for appellant.

H. Horatio S. Dumbauld, U. S. Atty., and D. Lloyd Claycomb, Asst. U. S. Atty., both of Pittsburgh, Pa.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

BUFFINGTON, Circuit Judge.

This case, a libel by the government to forfeit, is one of grave concern, in that it not alone involves the destruction of a very large quantity of food, but, what is of more importance, it involves also the future of the appellant's extensive business and is a condemnation of the fish inspection of the state of California. Where the drastic remedy of forfeiture by the government of the citizen's property was sought, the late Judge McPherson, then District Judge for the Eastern District of Pennsylvania, stated in a charge to a jury: "It is not required that there should be, for example, as in a criminal case, proof beyond reasonable doubt, and that degree of proof is not required in this case, either — proof beyond a reasonable doubt; but a higher degree of proof than a mere preponderance, a mere balance of evidence in favor of the Government, is required. It is necessary, in a case like this, that the Government should establish, by clear and satisfactory evidence, that its case has been made out."

We agree therewith, and make the adherence or departure therefrom the test of error in the present case, the facts of which are as follows:

The government, on July 20, 1933, filed a libel to forfeit 350 cartons of canned sardines, alleging "that said article of food so designated as aforesaid, as analyzed¹ by the Food and Drugs Administration, Department of Agriculture, United States of America, is shown to be adulterated in violation of section 7, Food and Drugs Act, paragraph 6th, Case of Food, in that product consists in part of decomposed animal substance." 21 U.S.C.A. § 8, Food, par. 6. The libel was sworn to at Pittsburgh by an inspector of the Food and Drugs Administration, who based his knowledge "upon documents and reports of chemists representing the Food and Drug Administration, United States Department of Agriculture, Washington, D. C." The libel stated that the sardines were shipped May 14, 1933, by the owners, from California to Pittsburgh, on the Luckenbach Line and connections. Pursuant to the libel, the carload of sardines in question was taken in possession by the government at Pittsburgh on July 20, 1933, and has been held during the two and a half intervening years. The appellant appeared, claimed the shipment, the case was tried by a jury, whose verdict was: "We * * find a verdict in favor of the United States of America. Recommend the mercy of the Court." On refusal of a new trial and entry of judgment, this appeal was taken, and error is assigned in the court's refusal, at the close of the proofs, to dismiss the libel. While this motion was based on special grounds, we have, in pursuance of our rule which provides, "The Court, at its option, however, may notice a plain error not assigned," addressed ourselves to the general question whether, in view of all the evidence, the libel should have been dismissed and whether the court below committed error in instructing the jury that "the fair preponderance of the evidence" and "the fair weight of the evidence" was sufficient to warrant a verdict for the government. In that regard we are of opinion the court erred and that the requirement is as above quoted in Judge McPherson's charge, namely, that, to warrant forfeiture, "a higher degree of proof than a mere preponderance, a mere balance of evidence in favor of the Government, is required. It is necessary, in a case like this, that the Government should establish, by clear and satisfactory evidence, that its case has been made out."

But assuming for present purposes the instructions of the court were right and that in a forfeiture case the preponderance, as in a civil case, is all that is required, did the proofs make out such a case that it could be submitted by a jury to find there was a preponderance? The answer to this question requires the critical study of the proofs, which we now try to make.

The claimants in this case are engaged in the catching, curing, canning, and sale of sardines. Its business is carried on at Terminal Island, on the coast of California. It employs six vessels which catch fish in the open waters of the Pacific during the night, bring them in the morning to the shore plant, and on the same day takes place the process of removing the entrails, cutting off the heads and tails, cooking the fish in brine and tomato sauce at high temperature, packing and sealing them in oil and such sauce, and subjecting them meanwhile to continuous inspection by the department of fisheries of the state of California. Each individual fish is examined and packed in the final box by a girl, who throws aside any unfit fish. In this way, the fresh fish, which are never subjected to the sun's rays, are caught and packed in sardine boxes within not to exceed twenty-four hours. By a code of marking enforced by the state of California, every box of sardines has embossed on it a seal or stamp which shows the date such box was sealed, so that the time of catch, the ship making it, and the proofs of the inspectors and ship captains, as well as the delivery thereof to the plant and the subsequent treatment and packing of the fish, can be fixed with certainty. Without entering into details, the claimant proved all these facts, dates, operations, etc., with absolute certainty, and there is no proof to the contrary.

The proofs show that no other fish than those caught by claimant's fishing boats were used in the cartons here in question. They also show claimant's boats were cleaned and the bilge water pumped out after each catch.

The proof of all of the captains, except one, is that their fish were caught after midnight and were delivered at the canning factory at from seven to nine hours after being caught. And, in the case of the remaining boat, the catch was made "during the night preceding and the delivery was at 8 A. M." The testimony of these captains is reinforced by the contemporaneous reports made to the California state fishery inspectors. The proof as to the treatment of the fish is as follows:

"The first boat comes to the dock, and they are taken into nets with a ring around them and lifts them out of the hull of that boat, and are poured into a shoot that goes into a cup or bucket with hoist that hoists them up beyond the second story into the boxes. The boxes automatically weigh five hundred pounds, and as soon as five hundred pounds are reached they are tripped. They are flumed into the water trough and flumed into receiving tanks. The tanks are close to our cutting machines, and they are flumed from the receiving tanks into the cutting machines where the heads and tails are cut off. From that they are flumed into a washer and scaler. It is a revolving net screen that has water pumped on all the time, and which screens and takes off the scales. From that they are flumed to the brining tanks. They are tanks we put them in and salt them down for a period of not less than one hour. From the brining tanks they are flumed to the dryers. The dryers are drop dryers, having ten drops. They are elevated to the top, and are in the screens No. 1. The fish put in that first goes through and drops down to No. 2, down to No. 3, down to No. 4, and down to No. 10. That takes an hour, and the temperature there is 110 degrees. From that they are conveyed by pairs to the packing tables, and the girls on each side of the table pack the sardines by hand, and place them on a conveyor. The conveyor takes them to the closing machine, but in transit they go through a machine that puts the tomato sauce, or whatever sauce we are using, in them. After they go to the closing machine they are sealed, and from there they go to a washing machine that washes off the tomato sauce or anything that might be on the cans. After the washing machines they go to the retorts where they are retorted according to the state laws of California Board of Health requirements. After the retorting process is through they go to the packing room ready for packing and shipping."

The further proof is that the brine is made up of two-thirds salt and one-third water; that it is used on but one batch of fish; that its purpose is to clean the fish and draw the blood out of them; and that the process lasts from one to four hours. The drying process takes an hour; the temperature is 100°; and it takes the moisture out of the fish. The fish are cooked ninety minutes at a temperature of 240°.

The chief inspector of the California state fishery department testified as to the character of state inspection and the steps taken by code and changing of inspectors so as to insure proper food product:

"The cannery has to have a license from the Department before it can operate. The product has to meet the requirements of the State law before it can be shipped. It has to be processed — that is, sterilized at a certain prescribed temperature for a certain length of time, and a record or graph kept of that on a recording thermometer, and that is all checked every day. The equipment on the thermometer consists of record thermometer, mercury thermometer, and record gauge, all to check each other, are checked to see that they remain in proper working order. The inspector who checks the records checks each chart against each batch or each retort load, and places a blue check mark on there. That is further checked against the production record, which shows the history of that batch. I am talking about processing now. Each can must bear an...