A case of forfeiture under the twenty-seventh section of the
registry of Vessels Act of December 31, 1792, c. 146, for the
fraudulent use of a register, by a vessel not actually entitled to
the benefit of it.
Where the
onus probandi is thrown on the claimant, in
an instance or revenue cause, by a
prima facie case, made
out on the part of the prosecutor, and the claimant fails to
explain the difficulties of, the case, by the production of papers
and other evidence, which must be in his possession, or under his
control, condemnation follows from the defects of testimony on the
part of the claimant.
MR. JUSTICE STORY delivered the opinion of the Court.
This is a libel for an asserted forfeiture founded on a
violation of the 27th section of the Act of 31 December, 1792, c.
146, concerning the registering and recording of ships and vessels.
The libel charges, that the certificate of registry or record of
the schooner, made to one John C. King, as owner, was fraudulently
or knowingly used for the said schooner, on a
Page 21 U. S. 408
voyage at and from Baltimore to Cayenne, and at and before her
subsequent arrival at New Orleans, she not being entitled to the
benefit thereof. The claim put in a denial to the allegation of
forfeiture, and upon a hearing in the District Court of Louisiana,
a decree of condemnation was pronounced, upon which an appeal has
been taken to this Court.
The facts of the case are these. The vessel sailed from
Baltimore about the first of August, 1820, under the command of a
Captain James Smith, having on board a Mr. Desmoland, who was owner
of a part of the cargo, and being bound on a voyage to Cayenne. A
letter of instructions was delivered to the master by the
ostensible owner, John C. King, which, among other things, after
stating the voyage, and ordering a delivery of the cargo agreeably
to the bill of lading, contained the following directions:
"Mr. Joseph Desmoland, who goes out in the vessel, will provide
you with everything necessary for that purpose. You will, as soon
as you are required by this gentleman, deliver to him the schooner
Luminary, with her boats, &c., having care to retain
in your possession the register, and every other paper. Mr.
Desmoland will discharge the crew agreeably to the laws of the
United States, and this also you will be careful to see executed,
and bring your proof thereof. As to yourself, Mr. Desmoland is to
pay you according to agreement, that is to say, your wages due, and
two months extra, $60 per month. The remainder of the crew to
receive the like pay -- that is to say, two months'
Page 21 U. S. 409
extra wages. . . . You will, also, during the whole voyage,
abide by and follow the instructions of Mr. J. Desmoland."
It is difficult to read this letter and not at once perceive
that the voyage of the vessel was to end at Cayenne, and that her
master and crew were to be discharged, the register separated from
the vessel, and all the usual proceedings had which are
contemplated by our laws, where a vessel is transferred or sold in
foreign port. The vessel was thenceforth to be under the sole
government and direction of Mr. Desmoland, and all authority and
control of the former owner was to cease. The question naturally
arises how this could happen? If the vessel was transferred to Mr.
Desmoland at Baltimore, it admits of an easy explanation. If she
was to be sold by him at Cayenne for the account of the former
owner as his agent, it would seem more consonant to the ordinary
course of business, that the instructions should have been
conditional, and should have stated the expectation of sale, and
have provided for the event of an unsuccessful attempt of this
nature. Mr. Desmoland would have been referred to as an agent, for
there could be no reason to conceal that agency. At all events, the
true nature of the case lies within the privity of King and
Desmoland, and they have the full means to explain the transaction
if it be innocent. There must exist in the possession of Mr.
Desmoland the documents under which he derived title from King,
whatever that title may be, and his silence, after the most ample
opportunity for explanation and for the production
Page 21 U. S. 410
of these papers affords a strong presumption that if produced,
they would not aid his cause or prove his innocence.
The schooner arrived at Cayenne, and from thence she was
dispatched to New Orleans by Mr. Desmoland under the command of the
same master, with the same register, and was entered at New Orleans
as an American vessel. Mr. L'Amoureaux came on board her at
Cayenne, and the laconic instructions given by Mr. Desmoland to the
master, for the voyage, were in these words:
"I hereby desire Captain James Smith, on his arrival at New
Orleans, to deliver the schooner
Luminary, with all her
tackle, &c., to Francois L'Amoureaux, who goes in the said
vessel. Cayenne, 1 October, 1820."
At New Orleans, Mr. L'Amoureaux claimed the vessel as his own,
and desiring to procure for her a new register as an American
vessel, he induced the master to execute a bill of sale to him of
the schooner for the sum of $1,000, as agent of King, the former
owner. The master, whose testimony is marked by the most studied
attempts at evasion, admits that he had no authority from King to
execute this bill of sale, that he never received any consideration
for it, and that he gave it simply because Mr. Desmoland had given
him the instructions above stated. He concludes, and the conclusion
seems irresistible, if Mr. L'Amoureaux ever obtained title to the
property, and she is not now the concealed property of Mr.
Desmoland, that he purchased her at Cayenne. Mr. L'Amoureaux now
claims her from the court as his own property, and as no
Page 21 U. S. 411
other origin is shown to his title, if he have any, it must be
referred to a purchase while at that port. In what manner the
purchase was made, and how the contract of sale was executed, are
not disclosed. Yet the materiality of a full disclosure cannot be
denied. If Mr. Desmoland sold in the name, and as agent of King,
the bill of sale would show it, and Mr. L'Amoureaux would possess
it among his muniments of title. If he sold as owner, then he must
have become so before the schooner departed from Baltimore, and of
course the vessel was sailing, during the whole voyage, under a
register which she was not entitled to use and under circumstances
which the law prohibited. Why then has Mr. L'Amoureaux kept from
the eyes of the court his title deeds? If they would not prove the
justice of the suspicions which the uncommon circumstances of the
case necessarily excite, it seems incredible that they should be
suppressed. The suppression, therefore, justifies the Court in
saying that the United States have made out a
prima facie
case, and that the burden of proof to rebut it rests on the
claimant.
But it has been asked what motive could Mr. Desmoland, or Mr.
L'Amoureaux, have for this disguise? If no adequate motive could be
assigned, it would make it more difficult to account for the
extraordinary posture of the case. But as human motives are often
inscrutable, the inadequacy of any apparent cause ought not to
outweigh very strong circumstantial evidence of a transfer. For if
the facts are such that they cannot be accounted for rationally
except upon the supposition of a
Page 21 U. S. 412
sale, there would be equal difficulties in rejecting the
inference of that fact. But Mr. Desmoland may have had many motives
to conceal the purchase. We do not know his national character or
his private situation. He might have been embarrassed. His national
character might have exposed him to capture or detention by ships
of war. He might have wished to reserve the benefit of selling
higher by selling abroad to an American citizen, who could thus
reinvest her with the American character. But if Mr. Desmoland were
a Frenchman, and meant to carry on a trade with New Orleans, and to
preserve the apparent American ownership through the
instrumentality of Mr. L'Amoureaux (and this is not an unnatural
presumption), then he had an adequate motive for the disguise. The
Act of 15 May, 1820, ch. 126, had imposed a very high tonnage duty
on French vessels entering the ports of the United States, and as
this act was meant as a countervailing measure, to press heavily on
French shipping, it was an important object to evade the payment of
that duty by sailing under the American flag. New, Mr. L'Amoureaux
has not shown any title from Mr. Desmoland, and if he be the
confidential agent of the latter, the whole proceeding is just what
we should expect with a view to this object. The apparent residence
of Mr. Desmoland at Cayenne, fortifies this presumption. There
would be no absurdity, though there would be illegality, in such
conduct. The parties cannot complain that the court, in a case left
so bare of
Page 21 U. S. 413
all reasonable explanation, construe their silence into
presumptive guilt.
MR. JUSTICE JOHNSON dissented.
It is not pretended that the evidence in this case makes out any
specific offense against this vessel. A number of circumstances are
collected into one view, which, as the Court does not understand,
they consider as sanctioning an inference of guilt, and making out
a cause of forfeiture. After giving to these circumstances the
utmost weight that can be required, they can be made to amount to
no more than the groundwork of a conclusion, that the vessel had
been sold to Desmoland at Baltimore or L'Amoureaux at Cayenne, and
had afterwards sailed under her original American register.
Argumenti gratia, I will concede either fact, and yet I
maintain that this vessel cannot be condemned either under the
libel in its present form or under the facts thus assumed.
It will be observed that there is no evidence whatever in the
record relative to the national character of these individuals, or,
if any, it goes to show that L'Amoureaux was an American citizen.
Now it is certain that they must come within the description of
citizens or aliens. But if citizens, the offense of owning a vessel
and not changing her register is no cause of forfeiture; the 14th
section of this act expressly imposes a pecuniary penalty for this
offense. In order, then, to maintain this forfeiture, it became
indispensable that these individuals, or at least one of them,
Page 21 U. S. 414
should have been made out in evidence to be an alien. No such
fact is proved, and this alone is fatal to the purposes of this
libel. Both facts, that of being an alien and that of using the
American register, must concur in order to make out the
offense.
2. But had the fact been established in evidence that one of
these individuals was an alien, or even both of them, still I
maintain that this condemnation ought to be reversed.
This libel, it will be observed, is preferred expressly under
the provisions of the 27th section of the registering act. By that
section it is enacted that
"If any certificate of registry or record shall be fraudulently
and knowingly used for any ship or vessel, not then actually
entitled to the benefit thereof, according to the true intent and
meaning of this act, such ship or vessel shall be forfeited to the
United States with her tackle, apparel, and furniture."
The offense, as laid in the libel is
"That at and after the departure of this vessel on a voyage on
which, on or before 1 August last, she sailed from the port of
Baltimore to Cayenne, and at and before her subsequent arrival at
New Orleans from Cayenne aforesaid, which was, &c., a certain
certificate of registry or record thereof, made and delivered in
pursuance of an act of Congress, entitled, an act, &c., to a
certain John C. King, of the City of Baltimore aforesaid, mariner,
as the owner thereof, was fraudulently or knowingly used for the
said vessel, she not then being, to-wit, &c., actually
entitled
Page 21 U. S. 415
to the benefit thereof according to the true intent of the said
act."
To the decree of forfeiture founded upon this libel I entertain
two objections, either of which is fatal. In the first place, the
forfeiture made out in evidence is not one comprised within this
27th section. If Desmoland and L'Amoureaux were American citizens,
it has already been shown that no forfeiture attaches, but whether
they be citizens or aliens, there exist in this act express
provisions, by distinct sections, that embrace their cases. The
14th section relates to the case of an American citizen, and the
16th section to that of an alien or foreigner who shall cover his
interest by an existing register, after a transfer of property in
the vessel.
I cannot imagine upon what principle this libel can be
maintained under the provisions of the 27th section when the
evidence brings the vessel directly within the 14th or 16th
section, if it brings her within the penalties of the law at all.
If the answer be that although the case of this vessel be
specifically legislated upon in distinct sections, yet the 27th
will cover the same ground, and she may be libeled under either; my
answer is that the conclusion of law is directly the reverse. I ask
no other evidence to show that this case was not intended to be
comprised within the 27th section, than the fact that in another
section of the same act, the case is specifically provided for. And
such is unquestionably the truth. The 27th section was not intended
to embrace the two offenses specifically provided for in the 14th
and 16th sections.
Page 21 U. S. 416
These two sections create two substantive offenses, one or the
other, or both of which, has been committed in this case, or no
offense has been committed. Those offenses can arise only upon the
event of a sale by the owner of a ship; but the registers of
vessels that have been condemned, or captured, or wrecked, or
otherwise destroyed, may be fraudulently used to cover other
vessels of corresponding built; and these, and various other
unidentified offenses, are those against which the 27th section was
intended to operate.
And this leads me to my second objection to sustaining the
condemnation under the allegations in this libel.
The allegations are too vague and general, and I would as soon
sustain an indictment for piracy or murder without any specific
allegations as a libel in which the offense is not set forth with
such convenient certainty as to put the claimant on his defense. It
is true that the same technical niceties are not necessary in a
libel, as the wary precision of the common law requires in
indictments; and the rule as usually laid down is generally
correct,
viz., that the offense may be laid in the words
of the act. But it is obvious that this rule can only apply to
those laws which create a substantive offense, not those which
generalize, and create offenses by classes. In the case before us,
the offense created by either the 14th or 16th section of this law,
may well be laid in the words of the law, each describes but one
offense, and that must invariably be the same. Not so with the 27th
section; under it, especially after the present
Page 21 U. S. 417
decision, a variety of offenses may be comprised,
distinguishable both into classes and individuals. There cannot be
a more striking illustration of these remarks than that which this
case presents; had the libel counted upon the 14th or 16th section,
instead of the 27th, the claimant might perhaps have been prepared
to meet those specific charges in a manner which would have
explained those supposed ambiguities which have now proved fatal to
him.
These observations have been made under the admission, that the
evidence in the cause countenanced the conclusion, that a sale of
this vessel had taken place before she left Baltimore. If she was
not sold until she reached Cayenne, and was then sold, deliverable
in New Orleans, there has been no offense committed. And even if
sold to L'Amoureaux, an American Citizen, it was no cause of
forfeiture. And this, I think, the evidence fully establishes.
There is one fact in the cause, which must put down the idea of
her having been sold before she left Baltimore. She took in a cargo
at that place, and Desmoland was one of the shippers. Smith, whose
testimony I see no just ground for impeaching, expressly swears,
that the freight of this outward voyage was paid at Baltimore, to
King, the American owner. Why he should receive, and Desmoland pay,
the freight of this voyage, after she became the property of the
latter, it is difficult to discover. Nor is it less difficult to
imagine what purpose it would have answered for her to retain her
original character on a voyage to Cayenne,
Page 21 U. S. 418
upon the supposition that she had become the property of a
Frenchman. Nothing but heavy duties and alien disabilities could
have resulted from it. So far from having a motive to retain the
original American character, his interests would have dictated
exactly the reverse. If a contract of sale did take place in
Baltimore, the vessel deliverable in Cayenne, this was no offense
against the registering act; the American citizen was entitled to
use the American character to facilitate the sale or enhance the
price of his vessel by a contract to deliver her at a particular
port.
But it has been argued that by assuming the fact of the sale to
Desmoland at Baltimore, all the evidence in the cause may be
explained with consistency.
I have already stated some facts from which I infer directly the
reverse; facts which appear to me altogether inconsistent with the
idea of a sale at Baltimore. But let it be admitted that such a
consequence would follow from this hypothesis, and it is still
necessary to go further. No innocent solution of these supposed
difficulties ought to be practicable before the inference of guilt
can fasten upon this vessel. Yet the most rational and simple
solution of every difficulty will be found in another hypothesis,
altogether innocent and probable. Let it be supposed that Desmoland
was the agent of King, for the sale of this vessel at Cayenne, and
every fact in the case will be fully reconciled with the idea of
King's interest having still remained in him. It was, of course,
that on a sale taking place at Cayenne, the captain
Page 21 U. S. 419
should deliver her up to Desmoland's order. That she was then to
put off her American character is proved by the instructions to
Smith to bring back the register, and as the captain and his crew
would then be left to find their way home from a distant country,
they were to receive two months extra wages.
I see nothing in all this but consistency and fairness.
Everything shows that she was not to continue trading under her
American character, and yet the prosecution of such an intent, and
of such an intent alone, would have comported with the fraud now
imputed to her, to-wit, that of evading the newly imposed tonnage
duty on French vessels.
With regard to the supposed transfer to L'Amoureaux, at Cayenne,
I consider him as acknowledged in the record to be an American
citizen, and I have already shown that an actual sale to him at
Cayenne would not subject the vessel to forfeiture for making the
voyage to New Orleans under her original register. It was
impossible that he could take out a new register at Cayenne, and
the apprehension of incurring some penalty or forfeiture, would
naturally suggest the measure, which Smith supposes was adopted, or
purchasing under a stipulation to deliver the vessel at New
Orleans. In the choice between guilt and innocence, it is the
construction which he has a right to expect a court of justice will
give of his conduct.
Nor can I perceive how any unfavorable inference can be drawn
from the circumstance of
Page 21 U. S. 420
Smith's signing the bill of sale at New Orleans. It is obvious
that King expected to sell the vessel in Cayenne, and to separate
her thus from the American marine. There was therefore no order
taken for effecting that formal transfer which was necessary under
our laws for the purpose of perpetuating her American character. I
see no reason why we should not rather suppose these men ignorant
than fraudulent. They were imposing upon no one, and if the
collector could be induced to issue a new register upon Smith's
bill of sale, it was all that L'Amoureaux stood in need of, since
King's letter to Smith and Desmoland's order to deliver the vessel
were sufficient muniments of title against all the rights of King.
I see nothing but fairness in the transaction, and the necessities
of L'Amoureaux's business may have well rendered it inconvenient to
wait until King could transmit a regular power of attorney from
Baltimore.
It is asked why did not Desmoland and others come forward with
evidence to explain all these transactions? I confess it appears to
me that the record supplies the answer. They could not have had a
serious apprehension of the fate they have met with. It is enough
for them to prove themselves innocent, after evidence of fraud has
been produced against them. Thinking, as I clearly do, that upon
the evidence before the court they were entitled to a decree in
their favor, I cannot perceive that any further explanation of
their conduct ought to have been required.
There was no sufficient allegation in the libel;
Page 21 U. S. 421
no evidence of a sale to Desmoland; none of his alien character,
if there had been a sale to him; the sale to L'Amoureaux did not
subject her to forfeiture, and not a fact had been made out in
evidence, which was not even more reconcilable with a state of
innocence than a state of guilt.
I confess I think it a hard case.
Decree affirmed with costs.