Howland v. Greenway
63 U.S. 491 (1859)

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U.S. Supreme Court

Howland v. Greenway, 63 U.S. 22 How. 491 491 (1859)

Howland v. Greenway

63 U.S. (22 How.) 491

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

The regulations at the port of Rio Janeiro require the master of a foreign vessel, upon her arrival at the port, to deliver to the proper officer, upon his visit to the vessel, his passport, manifest, and list of passengers. He is also required, at the end of the manifest, to make such declarations or statement for his security by adding any packages that may be omitted or exceeded in the manifest, giving his reason for such omissions; no excuse will afterwards be admitted for any omissions or error.

The regulations further declare that when it is proved that the vessel brought more goods than are specified or contained in the manifest, and not declared by the master, such goods will be seized and divided among the seizors, the master also paying into the national treasury a fine of one-half their value, besides the customary duties thereon.

Page 63 U. S. 492

Where the master of a vessel omitted to enter a part of the cargo upon his manifest, and in consequence thereof the boxes were seized and confiscated, the vessel and her owners were responsible to the consignees upon a libel filed in the district court of New York, where the contract of affreightment was made.

A delivery into the custom house under the order of the officers, and the payment of duties by the consignees, did not discharge the contract of the owners. The delivery contemplated by the contract was a transfer of the property into the power and possession of the consignees.

The evidence upon the amount of damages is not such as to justify this Court in reversing the decree of the court below.

This was a libel filed in the district court, sitting in admiralty, against the barque Griffin and her owners, by Greenway and Dickson, on a contract of affreightment. The circumstances are stated in the opinion of the court.

The district court passed the following decree:

"This cause having been heard on the exceptions to the commissioner's report, and argued by the advocate for the respective parties:"

"On reading the report of George F. Betts, Esq., United States commissioner, to whom the above matters were referred, by which there is reported due the libellant, on the bill of lading referred to in the libel, the sum of sixty-nine hundred and eleven dollars and fifty-two cents, on motion of Messrs. Weeks & De Forrest, proctors for the libellants, it is ordered that the report be in all things confirmed, and that the libellants recover in this action against the barque Griffin, her tackle &c., the amount reported due, with interest thereon from the date of the report, together with their costs to be taxed, and that the said barque, her tackle &c., be condemned therefor. And on like motion it is further ordered, that out of the proceeds of the stipulations of the claimants for cost and value, when paid into the registry of this Court, the clerk of this Court pay to the libellants or their proctor the amount reported due, together with their taxed costs. And on like motion of Messrs. Weeks & De Forrest, proctors for the libellants, it is further ordered, that unless an appeal be taken to

Page 63 U. S. 493

this decree, with the time limited and prescribed by the rules and practice of this Court, that on payment into the registry of the court of the amount of the stipulations for costs and value, that the clerk distribute the proceeds in satisfaction of this decree."

This decree was affirmed by the circuit court, and the owners of the barque appealed to this Court.

Page 63 U. S. 499

MR. JUSTICE CAMPBELL delivered the opinion of the Court.

This was a libel, in the District Court of the United States for the Southern District of New York, against the barque Griffin and her owners, on a contract of affreightment by the appellees. The libel stated, that in November, 1852, at New York, there was shipped on that barque, of which the appellants are owners, one hundred and thirty-two boxes of chairs and furniture, to be delivered at the ship's tackles at the port of Rio de Janeiro, to the appellees, according to the terms of a bill of lading. That the regulations of the port of Rio de

Page 63 U. S. 500

Janeiro require the owner or master of a vessel arriving there to submit to the officers of the customs a manifest of the cargo on board, and that cargo not mentioned in the manifest cannot be passed through the custom house, but is liable to seizure and confiscation for that omission.

That the master of the barque omitted to enter the said consignment on the manifest rendered by him on his arrival, and in consequence the boxes were seized and confiscated, and so were lost to the consignees. The libellees answer that the goods referred to in the libel were discharged in accordance to the bill of lading, under the laws and regulations of the port, and under the order of the proper government officers, and went into the custom house under the direction of the libellants, they paying the duties thereon.

That after the delivery at the ship's tackles of the said shipment, the consignees became responsible for their safety, and that they were not confiscated or forfeited to the government, nor abandoned by the consignees to the owners of the ship. Upon the pleadings and proofs, a decree was rendered against the libellees in the district court, which was affirmed in the circuit court, on appeal.

It appears from the testimony that it is the duty of a master of a foreign vessel, upon her arrival at the port of Rio de Janeiro, to deliver to the proper officer, Guarda Mor, upon his visit to the vessel, his passport, manifest, and list of passengers. He is required, "at the end of the manifest," to make such

"declarations or statement for his security by adding any packages that may be omitted or exceeded in his manifest, giving his reason for such omissions; no excuse will afterwards be admitted for any omissions or error."

That,

"when it is proved that the vessel brought more goods than are specified or contained in the manifest, and not declared by the master, such goods will be seized, and divided among the seizors, the master also paying into the national Treasury a fine of one-half their value, besides the customary duties thereon."

It further appears, that the Griffin reached the port of Rio de Janeiro in January, 1853, and that her master rendered her passport, manifest, and list of passengers,

Page 63 U. S. 501

and was required to make any statement or declaration in addition, and informed that no other opportunity would be afforded to him. The master answered, that he had no addition to make or declaration to record. The goods were discharged according to the custom of the port, under the direction and orders of the revenue officers, into the custom house, and while there, and before the entry had been completed, they were seized and confiscated under the regulation before stated. In a petition by the master to the Brazilian government for a remission of the forfeiture and penalty he had insured, he says:

"That on the last voyage of the vessel a seizure was made of one hundred and thirty-two packages of furniture, more or less, on the ground that they were not entered in the manifest, and, although the petitioner acknowledges that the custom house officers have acted according to the instructions of the department, still there are reasons of equity which render this seizure contrary to law."

These reasons were, that the Brazilian consul at New York was a novice in his office, and had failed to give him accurate information, and had approved of a manifest full of mistakes; and that the master had acted in good faith, and was obviously free from any suspicion of a design to defraud the revenue. This petition was referred to the director general of the revenue, who returned for answer:

"That taking into consideration the quantity of the packages seized, 130 cases, and the quality of the goods therein contained, furniture, and more particularly the circumstances which occurred before the seizure thereof, the packages having been landed, and the duties paid, there is no plausible reason to ascribe to fraud or bad faith the omissions of the said packages in the manifest of the vessel in which they were imported. but, on the other hand, the circumstance of the proof of fraud, or even of its presumption, is not essential in order to render the seizure a legal one in the present hypothesis. It is expressed in the case before mentioned, in the articles 155, 156, of the general regulations of the 22d June, 1836, that the simple fact of finding either more or less packages is punishable with the penalties therein decreed; and the seizure to which the petition

Page 63 U. S. 502

refers having been made and adjudged in conformity with the provisions of the said article 155, I am of opinion that the decision of the custom house ought to be confirmed."

The decree was entered accordingly. The testimony shows that the packages were sold by the inspector of the customs as forfeited, and that the consignees sustained a total loss. There is no testimony to show that they contributed to produce this result. It was the duty of the master of the barque to acquaint himself with the laws of the country with which he was trading, and to conform his conduct to those laws. He cannot defend himself under asserted ignorance, or erroneous information on the subject. It is the habit of every nation to construe and apply their revenue and navigation laws with exactness, and without much consideration for the hardship of individual cases. The magnitude and variety of the interests depending upon their efficient administration compel to this, and every shipmaster engaged in a foreign trade must take notice of them.

The Vixen, 1 Dod. 145; The Adams, Edwards 310. In the case before us, the master was informed of his duties upon his arrival at the port of destination by the officers of the customs, and his embarrassment and loss can be attributed to nothing but his inattention. The question arises, whether the appellants are responsible for the miscarriage of their master and agent. Their contract is an absolute one to deliver the cargo safely, the perils of the sea only excepted. Under such a contract, nothing will excuse them for a nonperformance, except they have been prevented by someone of those perils, the act of the libellants, or the law of their country. No exception of a private nature, which is not contained in the contract itself, can be engrafted upon it by implication as an excuse for its nonperformance. Atkinson v. Ritchie, 10 East. 533. In Spencer v. Chadwick, 10 Q.B. 516, the defendants pleaded,

"that the ship, in the course of her voyage to London, called at Cadiz; and while there, the goods were lawfully taken out of the ship by the officers of the customs on a charge of being contraband under the laws of Spain, without default on the part of the officers of the ship. The

Page 63 U. S. 503

court affirm the rule, that when a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract."

It was for the libellees to furnish the evidence to discharge themselves for the failure to perform their contract.

They insist that the delivery of the cargo into the custom house under the order of the officers, and the payment of duties by the consignees, was a right delivery, and that the consignees are responsible for their safety afterward. We do not concur in this opinion. The delivery contemplated by the contract was a transfer of the property into the power and possession of the consignees. The surrender of possession by the master must be attended with no fact to impair the title or affect the peaceful enjoyment of the property. The failure to enter the property on the manifest was a cause of confiscation from the event, and rendered nugatory every effort subsequently to discharge the liability of the ship and owners.

The appellants complain that the proof does not support the decree in respect of the damage assessed. One witness testifies to the market value of the packages in Rio de Janeiro, and another approximates their cost in New York, and upon this testimony the assessment was made. It was competent to the appellants to introduce testimony in the circuit court, or in this Court, upon that subject, but none has been submitted.

We should not be justified in concluding the decree to be erroneous under the circumstances.

Decree affirmed.

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