Wine and spirits saved from a wreck and landed are not liable to
forfeiture because unaccompanied with such marks and certificates
as are required by law, nor because they were removed without the
consent of the collector before the quantity and quality were
ascertained and the duties paid.
The award of arbitrators appointed under a mutual mistake of
both parties, in supposing themselves bound by law to submit the
matter in dispute to arbitration is not obligatory.
The owner of goods cannot forfeit them by an act done without
his consent or connivance or that of some person employed or
trusted by him.
One-half allowed for salvage in the Delaware Bay.
These cases were appeals from the Circuit Court for the District
of Delaware. Peisch and others, owners of the ship
Favourite and her cargo, libeled Ware and others in the
district court for the possession of certain goods, part of that
cargo, which the latter had saved from the ship, which had been
wrecked in the Delaware Bay.
The cargo consisted principally of wine, brandy, cordials, olive
oil, and silks.
On the night of 26 October, 1804, the ship
Favourite,
being at anchor in the Delaware Bay, parted both cables and was
driven on to a shoal. The crew cut away all the masts; in the
morning, she had drifted over the shoal, but the crew not being
able to keep her clear with the pumps, and having eleven and a half
feet of water in the hold, they quitted the ship about 9 o'clock
A.M. and went to Cape May for assistance. On the same morning about
10 o'clock, the ship was seen from the Town of Lewis, a small town
on the shore of the State of Delaware, but not a port of entry, by
Thomas Rodney, an inspector and surveyor of the revenue who resided
at that place. The ship was then drifting out to sea, without
masts, anchors, cables, or rudder. He collected a number of men and
boats and went on board the ship, and having towed her on to a
shoal called the Shears, they began to discharge the cargo into the
boats. Rodney, supposing himself authorized by the wreck law, as it
is called, of the State of Delaware, to take the lead in the
business of salvage,
Page 8 U. S. 348
appointed Ware to superintend the delivery of the cargo from the
ship and went on shore himself, to attend to the landing and
storage of the goods saved
On 29 October, the mate with three of the crew returned to the
ship in a shallop they had procured at Cape May with intent, as
they said, to save what they could of the cargo. They found the
ship in possession of Ware and others, who would not suffer the
mate to take anything out of the ship except his clothes and those
of the crew. The mate then left the ship. There were 48 hands and
six boats employed 16 days and 12 nights in saving the goods,
besides four flats and seven or eight hands hired occasionally to
work in the flats.
On 7 November, Peisch arrived, and on the 9th offered to pay
$4,000 for salvage, which the salvors refused, the goods saved
being supposed to be worth about $14,000, and demanded one-half for
salvage. Not being able to agree, the parties supposing themselves
bound by the law of Delaware, which requires an arbitration in such
cases, referred the rate of salvage to three men, who awarded
one-half to the salvors. On 18 November, the collector of the
district of Delaware arrived at Lewis, and on the 19th the salvors
offered themselves ready to secure the duties upon their half of
the goods saved, and requested that the amount of duties might be
ascertained at Lewis. This the collector refused, and ordered the
goods to be sent to Wilmington, a port of entry, to have the duties
ascertained, and Rodney delivered them into his possession. The
salvors then sued out a writ of replevin from the state curt of
Delaware and took the possession of the goods from the collector,
who thereupon seized them as forfeited to the United States for
breach of the revenue laws.
The first count of the libel filed by the United States claimed
the wine, brandy, and cordials as being forfeited because they were
unaccompanied with such marks and certificates as are required by
law, the duties not having been paid or secured.
Page 8 U. S. 349
The second count claims them as forfeited because they were
removed without the consent of the collector before the quantity
and quality of the wines and spirits and the duties thereon were
ascertained according to law, the duties not having been paid or
secured.
The third count claims all the goods forfeited because they were
found concealed, the duties not having been paid or secured.
On this libel by the United States, the district court decreed
that the goods were not liable to forfeiture, but were subject to
the terms of the decree of the court in the suit respecting
salvage, by Peisch and others against Ware and others, which decree
was affirmed in the circuit court, and the United States appealed
to this Court.
Page 8 U. S. 358
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
In these cases, two questions are to be decided by the
Court.
1st. Is the cargo of the
Favourite or any part of it
forfeited to the United States?
2d. Are Ware and others entitled to any, and if to any, to what
salvage?
The first count in the first libel filed on the part of the
United States claims the brandies, wines, and cordials therein
mentioned in consequence of their being found in the possession of
certain persons therein named unaccompanied
Page 8 U. S. 359
with such marks and certificates as are required by law, the
duties thereon not having been paid, or secured to be paid.
The second count claims them as forfeited because they were
removed, without the consent of the collector, before the quantity
and quality of the said wines and spirits, and the duties thereon,
were ascertained according to law, the duties thereon not having
been paid or secured.
The third count claims them because they were found concealed,
the duties not having been paid or secured according to law.
The second libel claims certain other goods, which were parcel
of the cargo of the
Favourite, as forfeited by being found
unlawfully concealed, the duties thereon not having been paid or
secured.
The facts of the case are these: the ship
Favourite,
belonging to Mr. Peisch, of Philadelphia, was discovered about the
last of October adrift in the Bay of Delaware, with her masts gone
by the board and without anchors, cables, or rudder and in danger
of being carried out to sea. A company was formed to save the
vessel and cargo, and with considerable labor, in the course of
several days, the cargo was unladen and landed at Lewis, a small
town on the bay, not a port of delivery, where it was, with the
approbation of the collector, left under the care and in the
custody of a revenue officer residing at that place, who was one of
the party that had originally taken possession of the vessel, and
under whose direction the whole business had been in a great
measure conducted. On 3 November, while the salvors were unlading
the vessel and landing the cargo, an imperfect entry was made by
the owners or consignees, after which an award was made between the
owners and salvors by which the salvors were allowed one-half the
cargo. The owners were dissatisfied with this award, and refused to
acquiesce under it. The collector ordered the goods, which had been
in the custody of a revenue officer, to be carried to Wilmington
for the purpose of
Page 8 U. S. 360
ascertaining the amount of duties. The salvors objected to this,
and requested that the duties might be ascertained at Lewis,
offering at the same time to pay the duties on the moiety of the
cargo claimed by them under the award. The collector persisting in
his determination to remove the goods to Wilmington, the salvors
sued out a writ of replevin from the state court, and by force of
that writ took the goods out of the possession of the revenue
officer. This act is the foundation of the forfeiture alleged in
the libels.
The forfeiture said to be occasioned by the goods being found
without the marks and certificates required by law, depends upon
the 43d section of the act for collecting duties, and on other
sections of the same act, which are explanatory of the 43d section.
The particular clause giving the forfeiture is in these words:
"And if any casks, chests, vessels or cases, containing
distilled spirits, wines, or teas, which by the foregoing
provisions ought to be marked and accompanied with certificates,
shall be found in possession of any person, unaccompanied with such
marks and certificates, it shall be presumptive evidence that the
same are liable to forfeiture."
The law then authorizes a seizure, and subjects such distilled
spirits, &c., to forfeiture, unless it be proved at the trial
that they were imported according to law, and that the duties were
paid or secured.
The objects of this clause are those vessels only which "by the
foregoing provisions" ought to be marked and accompanied with
certificates. To determine its extent, the "foregoing provisions"
must be looked into.
This subject is first taken up in the 37th section of the act.
That section directs particular and additional entries to be made
of distilled spirits, wines and teas, which provisions are adapted
to regular importation, not to those articles when saved from a
wreck.
The entry is to be made by the importer or consignee, and
specifications are required which can only be given by the owner or
consignee, when in possession of the papers relative to the vessel
and cargo. If a vessel be
Page 8 U. S. 361
wrecked on the coast, the cargo must be lost or brought on shore
without the knowledge of the owner or consignee so as to put it in
his power to make the entry, and the salvors are not only not the
persons designated by the law to make, but they will often not
possess the information which would enable them to make it.
The act proceeds to require that this entry shall be transmitted
to the surveyor of the port where the delivery of the cargo is to
commence, to whom also every permit for unlading or landing any
part of the cargo must be previously produced, who shall record the
same and endorse thereon the word "inspected," the time when, and
his own name. Goods landed previous to these formalities are to be
forfeited.
These regulations obviously respect a regular importation, where
all these prerequisites to landing may be performed; not cases
where a landing must take place without them. To suppose them
applicable to salvage goods, would be to suppose that the
legislature designed to prohibit salvage entirely, or to forfeit
the cargoes of all vessels which might be wrecked on the coast.
The 38th section requires that all distilled spirits, wines, and
teas shall be landed under the inspection of the surveyor, or other
officer acting as inspector of the revenue for the port, and
therefore can relate only to cases of regular importation at the
port of delivery, where the revenue officer may superintend the
landing. He is directed to attend at all reasonable times, not at
all places.
The 39th section prescribes the duty of the officer of
inspection of the port where the spirits, &c., may be landed.
He is to ascertain the duties and mark the casks.
The 40th section directs the surveyor, or chief officer of
inspection of the port or district in which the said spirits,
wines, or teas shall be landed, to give the proprietor, importer,
or consignee a general certificate; and the 41st section directs
him to give a particular certificate
Page 8 U. S. 362
for each vessel, which certificate passes with the vessel to the
purchaser.
These sections are connected with those which precede them, and
relate to regular importations, where the spirits, &c., are
landed under a permit at a port of delivery, and there is a
proprietor, importer or consignee, or an agent to whom the
certificates may be granted; not to spirits, &c., which may,
from the nature of things, lawfully get into the possession of
individuals without the knowledge of a revenue officer.
The 42d section only directs that blank certificates shall be
provided.
These are the sections which precede that which is supposed to
give the forfeiture claimed under this count of the libel.
The first part of the 43d section directs the proprietor,
importer, or consignee, who may receive the said certificates, to
deliver them with the vessels to the purchaser, and then comes the
clause which subjects to forfeiture all vessels containing spirits,
&c., which may be found unmarked and not accompanied by
certificates, which by the foregoing provisions ought to be marked
and accompanied by certificates.
In the foregoing provisions the legislature, in the opinion of
this Court, did not intend to comprehend wrecked goods, or goods
found under circumstances like those in the
Favourite,
where the vessel was deserted by her crew, and where it might be
necessary, for the preservation of the goods, to take them to the
nearest accessible part of the coast. Either these spirits and
wines would have been liable to forfeiture if brought to land under
the most pressing circumstances, where inevitable loss must attend
any delay, if a revenue officer should not be present to take
possession of them, or the single circumstance of their being found
unmarked and unaccompanied with certificates, is not in itself
sufficient to forfeit them. The opinion of the Court that it was
not the intention of the legislature to subject goods under such
circumstances to forfeiture is not formed exclusively
Page 8 U. S. 363
on the extreme severity of such a regulation. It is formed also
on what is deemed a fair construction of the language of the
several sections of the law, which seems not adapted to cases like
the present.
The second count in the libel claims the goods as forfeited
because they were, without the consent of the proper officer,
removed from the place where they were deposited, before the amount
of duties was ascertained, the duties at that time not being paid
or secured.
Neither this count, nor the first, supposes any forfeiture to
have been incurred by the landing of the goods, or the unlading of
the vessel. The spirits and wines are presumed to have been legally
brought on shore, and it is the removal only which gives title to
the United States. The Court therefore is to inquire whether these
goods were under such circumstances that a removal, such as has
taken place in this case, will produce a forfeiture. This depends
on the 51st section of the law, in expounding which, it becomes
proper to notice the 50th also. This section prohibits the unlading
of any vessel, or the landing of any goods, without a permit
granted by the proper officers, and subjects the master or other
person having the command of such vessel, and all those who shall
be concerned in unlading, removing, or storing such goods, to heavy
penalties, and the goods themselves to forfeiture.
It was well observed that the application of this section to
cases where the goods must perish, if not immediately brought on
shore, and to cases in which a permit cannot regularly be granted,
would be not only to prohibit, but to punish every attempt to save
a cargo about to be lost on the coast. This construction of the law
could only be made where the words would admit of no other. But it
is unquestionably a correct legal principle, that a forfeiture can
only be applied to those cases in which the means that are
prescribed for the prevention of a forfeiture may be employed. The
means prescribed to save the forfeiture given in the 50th section
cannot be employed where a vessel is deserted by her crew, or
cannot be brought into port. The permit cannot be obtained, nor can
those steps which must precede the attainment
Page 8 U. S. 364
of a permit be taken. Upon just legal construction, then, the
landing of these goods without a permit did not subject them to the
forfeiture of the 50th section. This act is not within the law. The
50th section is calculated for cases in which the general
requisites of the law can be complied with, not for salvage goods,
in cases where those general requisites cannot be complied
with.
The 51st section relates to the removal of goods from the wharf
or place on which they may have been landed in conformity with the
directions of the 50th section. It presupposes a permit, and that
they were landed under the inspection of a revenue officer, in the
manner prescribed by the 38th section.
It presupposes a case in which the gauging and marking may be
done, and the other means prescribed for the ascertainment of the
duties and security of the revenue may be taken, at the place of
landing; not a case in which a landing must be made without a
permit, often in the absence of a revenue officer, and where the
goods could not be permitted without extreme peril to remain at the
place of landing until these measures should be taken.
The Court is also of opinion that the removal for which the act
punishes the owner with a forfeiture of the goods must be made with
his consent or connivance, or with that of some person employed or
trusted by him. If, by private theft or open robbery, without any
fault on his part, his property should be invaded, while in the
custody of the officer of the revenue, the law cannot be understood
to punish him with the forfeiture of that property. In the 52d
section, therefore, to which the revenue officers seem to have
intended to conform, so far as the case would admit, which directs
them in the case of an incomplete entry to store the goods at the
risk and expense of the owner or consignee, no forfeiture is
annexed to their removal, unless the penalties of the 51st section,
or of the 43d section, be applied to the 52d.
The Court is of opinion that those penalties cannot be so
applied in this case, not only because, from the whole
Page 8 U. S. 365
tenor of the law, its provisions appear not to be adapted to
goods saved from a vessel under the circumstances in which the
Favourite was found, but because also the law is not
understood to forfeit the property of owners or consignees, on
account of the misconduct of mere strangers, over whom such owners
or consignees could have no control.
It has been urged, on the part of the United States, that
although the property of the owner should not be forfeited, yet
that moiety which is claimed by the salvors has justly incurred the
penalties of the law. But if the award rendered in this case be not
binding, the salvors could have only a general claim for salvage,
such as a court might allow, and if it be binding, still they
acquired no title to any specific property. Their claim was in the
nature of a general lien, and any irregular proceeding on their
part would rather furnish motives for diminishing their salvage, if
that be not absolutely fixed by the award, than ground of
forfeiture. The irregularity, too, if any, which has been committed
by them, being merely an attempt to assert, in a course of law, a
title they supposed themselves to possess, and with no view to
defraud the revenue, this Court would not be inclined to put a
strained construction on the act of Congress in order to create a
forfeiture.
The third count in the first libel, and the second libel, claim
a forfeiture on the allegation that the goods were concealed. The
fact does not support this allegation. There was no concealment in
the case.
Taking all the circumstances into consideration, it is the
unanimous opinion of the Court that no forfeiture has been incurred
and that the libels filed on the part of the United States was
properly dismissed.
The next question to be considered is to what amount of salvage
are the salvors entitled? That their claim is good for something is
the opinion of all the judges; but on the amount to be allowed, the
same unanimity does not prevail.
Page 8 U. S. 366
For the quantum of salvage to be allowed, no positive rules are
fixed. It depends on the merit of the salvors, in estimating which,
a variety of considerations have their influence.
In the case before the Court, the opinion of the majority is
that the sentence of the circuit court ought to be affirmed. This
opinion, however, is made up on different grounds. Two of the
judges are of opinion that the award was fairly entered into, and
although both parties might be mistaken with respect to the
obligation created by the law of Delaware, yet there is no reason
to suppose any imposition on either part; nor is there any other
ground on which the award can be impeached or set aside. Two other
judges, who do not think the award obligatory, view it as the
opinion of fair and intelligent men, on the spot, of the real merit
of the salvors, and connecting it with the testimony in the cause,
are in favor of the salvage which has been awarded, and which has
been allowed by the sentences of the district and circuit courts.
Three judges are of opinion that the award is of no validity, and
ought to have no influence. They think the conduct of the salvors,
in taking the goods out of the possession of the revenue officer,
though by legal process, is improper, and that the salvage allowed
is too great.
They acquiesce, however, cheerfully, in the opinion of the
majority of the Court, and express their dissent from that opinion,
solely for the purpose of preventing this sentence from having more
than its due influence on future cases of salvage.
The sentence of the circuit court is affirmed without
costs.