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166 U.S. 110 (1897)
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U.S. Supreme Court
The Conqueror, 166 U.S. 110 (1897)
Argued January 6-7, 1897
Decided March 8, 1897
166 U.S. 110
So long as the transcript of the record in the circuit court is in the circuit court of appeals, the fact that a mandate from it has gone down to the circuit court, affirming its decree, does not affect the right of this Court to issue a writ of certiorari to the court of appeals, to bring the record here.
An application for a writ of certiorari to bring here for review a record and judgment entered after the final adjournment of this Court, made at the next term and within a year after the original decree, is made within time.
A foreign built vessel, purchased by a citizen of the United States, and brought into the waters thereof, is not taxable under the tariff laws of the United States.
Rev.Stat. § 970, which provides that,
"when, in any prosecution commenced on account of the seizure of any vessel, goods, wares or merchandise, made by any collector or other officer, under any act of Congress authorizing such seizure, judgment is rendered for the claimant, but it appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution: provided that the vessel, goods, wares or merchandise be, after judgment, forthwith returned to such claimant or his agent,"
only affords the collector immunity against a judgment for damages in cases where proceedings against the vessel were instituted upon information filed by the United States, for a fine or forfeiture incurred by the vessel itself.
A collector of customs who seizes a foreign built vessel purchased by a citizen of the United States and brought by him into their waters, and holds the same on the claim that it is taxable for duties under the tariff laws, is not protected against a judgment for damages by a certificate of probable cause.
Demurrage is a proper element of damages, but it can only be allowed when profits have either actually been lost, or may be reasonably supposed to have been lost, and their amount is proven with reasonable certainty.
The best evidence of damage suffered by detention is the sum for which vessels of the same size and class can be chartered in the market, but
in the absence of such market value, the value of her use to her owner in the business in which she was engaged at the time of the collision is a proper basis for estimating damages for detention, and the books of the owner showing her earnings about the time of her collision are competent evidence of her probable earnings during the time of her detention.
Testimony as to value may be properly received from witnesses who are duly qualified as experts, but the jury, even if such testimony be uncontradicted, may exercise their independent judgment, and there is no rule of law which requires them to surrender their judgment, or to give a controlling influence to the opinions of scientific witnesses.
The testimony in this case falls far short of establishing such a case of loss of profits as entitles the claimant to recover the large sum awarded to him for the detention of his yacht.
Whether the other charges were proper or not was a matter for the courts below to determine in the exercise of their best judgment, and, as the commissioner found that they were proper, and as both the district court and the court of appeals affirmed his action in that regard, this Court is not disposed to disturb their finding, although the amount seems large.
This was a libel by Frederick W. Vanderbilt to recover possession of the steam yacht Conqueror, of which he was the owner, and which was alleged to be illegally detained by J. Sloat Fassett, then collector of customs for the district of New York.
The material facts of the case are as follows: in May, 1891, Vanderbilt, who is a native-born American citizen, purchased of one Bailey, or Kingston-upon-Hull, England, the yacht Conqueror, a foreign-built vessel, for the sum of 15,500, or about $75,000. The bill of sale was certified by the United States consul at Liverpool, and the yacht was delivered to Vanderbilt at Hull. The vessel was designed for pleasure only, and has never been put to any other use. After a cruise to Norway, Mr. Vanderbilt returned with her to England, and in June was elected a member of the Royal Mersey Yacht Club of Liverpool, thereby, it seems, obtaining the right to fly the blue ensign of her majesty's fleet. He never did, however, fly a British flag, but always carried the ensign of the New York Yacht Club, and her enrollment in the Liverpool Yacht Club seems to have been with the intent of claiming a special privilege of exemption from tonnage tax, under Rev.St.
§ 4216, accorded to yachts belonging to foreign yacht clubs.
Shortly after this the yacht crossed the ocean, and arrived at New York about July, 6, 1891, where she was duly entered as a vessel with the collector of the port, and paid the light money levied upon her by the collector as a vessel, pursuant to Rev.Stat. § 4225. She also received from the deputy collector a certificate to her bill of sale, describing her, stating that she had been sold by Bailey to Vanderbilt, and that the latter was a citizen of the United States. This entitled her to protection as an American vessel, but did not authorize her to engage in commerce. After cruising for some time about the coast, on August 27, 1891, in obedience to instructions from the Treasury Department founded upon an opinion of the Solicitor of the Treasury that the yacht should be regarded as a dutiable importation, the collector took forcible possession of her and held her until dispossessed by the marshal under authority of the district court. On October 1st, Mr. Fassett went out of office, and was succeeded by Francis Hendricks, to whom the possession passed.
Meanwhile, on September 1, Mr. Vanderbilt filed his present libel for possession of the yacht, alleging his citizenship, the fact that the vessel was designed, intended, and constructed as a pleasure yacht only, its purchase by the libelant, as well as other facts hereinbefore set forth, and prayed for process against the vessel and for a decree awarding him possession and condemning Fassett in damages and costs. Process having been issued against the yacht, the execution thereof by the marshal was restricted by the customs officials, and it was not until an alias and pluries process had been issued that the marshal succeeded in obtaining exclusive and undisputed control of her. Fassett then applied to this Court for a writ of prohibition, which was denied. In re Fassett, 142 U. S. 479.
Answers having been filed by Mr. Fassett, as late collector and personally, and by Mr. Hendricks, as collector, praying for the dismissal of the libel and for a decree of restitution of the yacht to the collector, the cause came on for a hearing in
the district court, and resulted in a decree of restitution, 49 F. 99, a reference to a commissioner for an assessment of damages, and a subsequent decree for damages in the sum of $15,000 as demurrage for detention of the yacht from August 27th to February 3d and for other items sufficient to make up a total decree of $21,742.34.
Upon appeal to the circuit court of appeals, this decree was affirmed without an opinion, whereupon appellant applied for and was granted the present writ of certiorari.