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.
