1. The Act of December 23, 1852, authorizing foreign vessels
wrecked and repaired in the United States to be registered or
enrolled, is to be taken as a part of our system of registration
and enrollment.
2. Vessels engaged in the foreign trade are registered, and
those engaged in the coasting and home trade are enrolled, and the
words "register" and "enrollment" are used to distinguish the
certificates granted to those two classes of vessels.
3. The two statutes providing generally for registry and
enrollment of vessels are the Act of December 31, 1792, applicable
exclusively to registry of vessels engaged in foreign commerce, and
the Act of July 18, 1793, applicable exclusively to vessels engaged
in domestic commerce.
4. The penalty of forfeiture of a vessel for the use of a
certificate of registry to which she is not entitled, found in the
27th section of the act of 1792, is not imported into the act of
1793, and there is no forfeiture under that act for the use of a
fraudulent enrollment.
5. But the Act of March 2, 1831, concerning vessels used on our
northern frontiers, which are necessarily engaged in both the
foreign and home traffic at the same time, makes the certificate of
enrollment equivalent to both registry and enrollment.
6. This act does, by the proviso to its 3d section, apply the
penalty of forfeiture contained in the 27th section of the act of
1792 to an enrollment having the effect of a register fraudulently
obtained.
Page 70 U. S. 567
An act of Congress of 1792 [
Footnote 1] (section 27), provides that
"If any certificate of registry
or record shall be
fraudulently or knowingly used for any ship or vessel not then
actually entitled to the benefit thereof according to the true
intent of this act, such ship or vessel shall be forfeited to the
United States."
An act of 1793, [
Footnote 2]
concerning the enrollment of vessels engaged in domestic commerce,
enacts (section 2) that
"In order for the enrollment of any vessel, she shall possess
the same qualifications, and the same requisites, in all respects,
shall be complied with as are necessary for registering ships by
the registry law, and the same duties are imposed on all officers
with the same authority in relation to enrollments, and the same
proceedings shall be had touching enrollments."
An Act of December 23, 1852, [
Footnote 3] authorizes the Secretary of the Treasury to
issue a register or enrollment for any vessel built in a foreign
country whenever such vessel may have been or shall hereafter be
wrecked in the United States and shall have been or may hereafter
be purchased and repaired by a citizen or citizens thereof,
provided that it shall be proved to the satisfaction of
the Secretary of the Treasury that the repairs put upon such vessel
shall be equal to three-fourths of the cost of said vessel when so
repaired.
Intermediate in date between the act last mentioned and the one
of 1793, just before it set forth, there is another act. This Act,
dated March 2, 1831, [
Footnote
4] provides by its third section that any vessel of the United
States navigating the waters of our northern, northeastern, and
northwestern frontiers otherwise than by sea shall be enrolled and
licensed in such form as may be prescribed by the Secretary of the
Treasury,
"which enrollment and license shall authorize any such vessel to
be employed either in the coasting or foreign trade, and no
certificate of registry shall be required for any vessel
Page 70 U. S. 568
so employed on said frontiers,
provided that such vessel
shall be in every other respect liable to the rules, regulations,
and penalties now in force relating to registered vessels on our
northern, northeastern, and northwestern frontiers."
With these four different statutes in force, Sloan and others,
wishing to give to a Canadian-built and owned vessel the advantages
of one with American papers, scuttled her and pretended that she
had been accidentally made a wreck. They then raised her and put
her in order, and falsely swearing, for the purpose of changing her
to an American vessel, that the repairs were "equal to
three-fourths of her cost when so repaired," procured American
papers for her from the Secretary of the Treasury under the Act of
December 23, 1852.
The United States now libeled her in the District Court of
Michigan, with the idea:
1. That under the three acts first above mentioned, to-wit, the
acts of 1792, 1793, and 1852 alone, she was liable to
forfeiture.
2. That if this was not so, she was certainly liable under these
acts in connection with the act of March 2, 1831.
The district court thought that the acts were not so essentially
parts of one system as that the earlier ones could be imported into
the latter, and dismissed the libel, and of this view was the
circuit court. On appeal by the United States, the matter was now
here for review.
Page 70 U. S. 570
MR. JUSTICE MILLER delivered the opinion of the Court.
The Act of December 23, 1852, authorized the Secretary of the
Treasury to issue a register or enrollment for any vessel built in
a foreign country whenever such vessel may have been or shall
hereafter be wrecked in the United States and shall have been or
may hereafter be purchased and repaired by a citizen or citizens
thereof,
provided that it shall be proved to the
satisfaction of the Secretary of the Treasury that the repairs put
upon such vessel shall be equal to three-fourths of the cost of
said vessel when so repaired.
In this act, under which the owners of the
Mohawk
procured the enrollment, and the whole of which we have just
quoted, there is nothing which inflicts such forfeiture or any
other penalty for fraud or false swearing, in procuring the action
of the Secretary.
This act is, however, to be construed as a part of our system of
registry and enrollment of vessels, and as merely adding another
class which may be registered and enrolled to those enumerated in
the previous statutes. Whatever, therefore, may be found in those
statutes imposing a penalty for fraud in procuring the
enrollment of a vessel may well be held to apply to an
enrollment under the act of 1852.
We emphasize the word
enrollment because the
registry
Page 70 U. S. 571
of a vessel and the enrollment of a vessel are essentially
different things, are provided for by different statutes, and are
applicable to vessels engaged in different and distinct pursuits.
Hence, the act of 1852 says that the secretary may issue to a
vessel, such as it describes, "a register or enrollment."
The purpose of a register is to declare the nationality of a
vessel engaged in trade with foreign nations and to enable her to
assert that nationality wherever found. The purpose of an
enrollment is to evidence the national character of a vessel
engaged in the coasting trade or home traffic and to enable such
vessel to procure a coasting license. [
Footnote 5]
The distinction between these two classes of vessels is kept up
throughout the legislation on Congress on the subject, and the word
"register" is invariably used in reference to the one class, and
"enrollment" in reference to the other.
There are two statutes in force making general provisions for
the subjects of registry and enrollment of vessels. One of them is
the Act of December 31, 1792, which applies exclusively to vessels
engaged in foreign commerce and to their registry, and the other is
the Act of February 18, 1793, which relates to vessels engaged in
the coasting trade and fisheries, and to their enrollment.
The act of 1792 provides that
"If any certificate of registry or record shall be fraudulently
or knowingly used for any ship or vessel not then actually entitled
to the benefit thereof according to the true intent of this act,
such ship or vessel shall be forfeited to the United States."
This section does not refer to an enrollment, because neither
the word "registry" or "record" is usually applied to an
enrollment, and because the true intent of the act can have
reference to no other class of vessels than those engaged in
foreign commerce, which are required to take out a register.
The act of 1793, concerning the enrollment of vessels engaged in
domestic commerce enacts, by the second section, that
"In order for the enrollment of any vessel, she shall
Page 70 U. S. 572
possess the same qualifications and the same requisites in all
respects shall be complied with as are necessary for registering
ships by the registry law, and the same duties are imposed on all
officers with the same authority in relation to enrollments, and
the same proceedings shall be had touching enrollments."
From this it is argued that forfeiture shall take place under
like circumstances as is provided for in the registry law. But
there is not only nothing in the terms used which refers to
"penalties," but there is nothing which can be held to have such
reference by any fair implication. These provisions concern the
class or qualifications of vessels which may be enrolled, the
requisites to be complied with before enrollment, the duties and
authority of officers connected with the enrollment, and the
proceedings to be had in obtaining enrollment. In all these
particulars, the rules of the registry law are adopted. The act
makes sufficient provision for false affidavits and has its
penalties for them, but forfeiture of the vessel is not one of
them.
But the Act of March 2, 1831, undertakes, as its title imports,
to regulate both the foreign and coasting trade on the
northern, northeastern, and
northwestern
frontiers of the United States.
In these regions, the domestic and the foreign trade are so
blended that the same vessel is almost necessarily engaged in both
at the same time, and often during the same voyage. To meet this
kind of trade, the third section of that act says, in reference to
vessels engaged in navigating those waters, that
"they shall be enrolled and licensed in such form as may be
prescribed by the Secretary of the Treasury, which enrollment and
license shall authorize any such boat, sloop, or other vessel, to
be employed either in the coasting or foreign trade, and no
certificate of registry shall be required for vessels employed on
said frontiers,
provided that such boat, sloop or other
vessel, shall be in every other respect liable to the rules,
regulations, and penalties now in force relating to registered
vessels on our northern, northeastern, and northwestern frontiers.
"
Page 70 U. S. 573
It is the obvious policy of this act to enable a class of
vessels which are engaged in both the foreign and the coasting
trade at the same time to do so without the necessity of taking out
both a register and an enrollment. For this purpose, the act makes
the enrollment equivalent to both register and enrollment. In
giving to the enrollment the effect of a register, it very properly
subjects the vessel to all the rules, regulations, and penalties
relating to registered vessels. One of these penalties, as we have
already seen, is the forfeiture of the vessel for the fraudulent
use of a certificate of registry when she is not actually entitled
to the benefit thereof.
The statements of the libel and the evidence in the case which
supports them bring the
Mohawk within this penalty.
Decree reversed and the case remanded with instructions to
enter a decree of forfeiture and condemnation of the
vessel.
[
Footnote 1]
December 31, 1792; 1 Stat. at Large 287.
[
Footnote 2]
February 18, 1793;
id., 305.
[
Footnote 3]
10
id. 149.
[
Footnote 4]
4
id. 487.
[
Footnote 5]
Gibbons v.
Ogden, 9 Wheat. 214.
