An American registered vessel, in part transferred by parol
while at sea to an American citizen and resold to her original
owners on her return into port before her entry, does not, by that
operation, lose her privileges as an American bottom, nor become
subject to foreign duties.
In case of alienation to a foreigner the privileges of an
American bottom are
ipso facto forfeited; but in case of
alienation to a citizen, they are not forfeited until after she
ought to have been registered anew, and the oath which entitles her
to enter as an American bottom, does not require such new
register.
This was an action of debt brought originally in the District
Court of the United States for the District of Pennsylvania for the
penalty of a bond dated November 16, 1802, conditioned to pay to
the collector of the customs
"the sum of $7,720.41, or the amount of the duties to be
ascertained as due and arising on certain goods, . . . entered by
the above bounden Willings and Francis, as imported in the ship
Missouri from Canton, as per entry dated 16 November,
1802."
The pleadings, which ended in a general demurrer to the
surrejoinder, brought into view the question, whether the ship
Missouri, at the time of her arrival and entry from
Canton, was entitled to the privileges of a registered ship of the
United States, for if she was, the sum mentioned in the condition
of the bond (which had been calculated as if she had been a foreign
bottom) was too large by the sum of $702.05.
The facts upon which this question arose appear, by the record,
to be as follows:
The ship
Missouri, when she sailed from Philadelphia
for Canton, was a duly registered ship of the United States, owned
wholly by Willings & Francis, citizens of the United States.
While at sea, and while the register of the ship was on board in
possession of the master, she was in part sold by Willings and
Francis, in Philadelphia, to J. G. Koch and others, citizens of the
United States, on 12 February, 1801, but was not then registered
anew by her former name, nor was there an instrument in writing, in
the nature of a bill of sale, reciting at length the certificate of
registry. On 15 November, 1802, after the arrival of the ship at
Philadelphia, and before any report or entry, Koch and others, the
vendees, made a parol resale of their part of the ship to Willings
and Francis, whereby the whole was revested in them. Afterwards, on
the same 15 November (it being the day of her arrival), the
register
Page 8 U. S. 49
was delivered up by the master of the ship to the collector of
the port of Philadelphia, and the vessel duly reported and entered;
and T. W. Francis, one of the part owners, resident at that port,
upon the entry of the ship, offered to make oath that the register
contained the names of all the persons who were then owners of the
ship; that since the granting of the register, the ship had been in
part sold by W. and F. to Koch and others, who had resold the same
to W. and F. and that no foreigner had any share or interest in the
ship. On 22 December, 1802, W. and F. made a bill of sale to Koch
and others, reciting the register at length in due form of law,
whereupon the ship was registered anew by her former name, as the
property of Willings and Francis, and Koch and others, as joint
owners. On 7 January, 1803, Koch and others, by a bill of sale
reciting the register at length, in due form of law, resold and
reconveyed their part of the ship to Willings and Francis,
whereupon the register was delivered up, and the ship registered
anew by her former name, as the property of W. and F.
By the 14th section of the Act of Congress of 31 December, 1792,
vol. 2. 146, 147, it is enacted,
"That when any ship or vessel which shall have been registered
pursuant to this act or the act hereby in part repealed shall in
whole or in part be sold or transferred to a citizen or citizens of
the United States or shall be altered in form or burden, . . . in
every such case the said ship or vessel shall be registered anew by
her former name, according to the directions hereinbefore contained
(otherwise she shall cease to be deemed a ship or vessel of the
United States), and her former certificate of registry shall be
delivered up to the collector, to whom application for such new
registry shall be made at the time that the same shall be
made."
"And in every such case of sale or transfer there shall be some
instrument of writing, in the nature of a bill of sale, which shall
recite at length the said certificate; otherwise the said ship or
vessel shall be incapable of being so registered anew. And in every
case in which a ship or vessel is hereby required to be registered
anew, if she shall not be so registered anew, she shall not be
entitled to any of the privileges or benefits of a ship or
vessel
Page 8 U. S. 50
of the United States. And further, if her said former
certificate of registry shall not be delivered up as aforesaid,
except the same may have been lost, . . . the owner or owners of
such ship or vessel shall forfeit and pay the sum of five hundred
dollars, to be recovered with costs of suit."
And by the 17th section it is enacted,
"That upon the entry of every ship or vessel of the United
States from any foreign port or place, if the same shall be at the
port or place at which the owner or any of the part owners reside,
such owner or part owner shall make oath or affirmation that the
register of such ship or vessel contains the name or names of all
the persons who are then owners of the said ship or vessel; or if
any part of such ship or vessel has been sold or transferred since
the granting of such register, that such is the case and that no
foreign subject or citizen hath, to the best of his knowledge and
belief, any share, by way of trust, confidence, or otherwise, in
such ship or vessel."
"And if the owner . . . shall refuse to swear or affirm as
aforesaid, such ship or vessel shall not be entitled to the
privileges of a ship or vessel of the United States."
The judgment of the district court, upon the demurrer, was in
favor of the United States, but it was reversed upon a writ of
error in the circuit court, and the United States brought the case
up by writ of error to this Court.
Page 8 U. S. 55
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The single question in this case is whether an American
registered vessel, in part transferred by parol while at sea to an
American citizen and resold to the original owners on her return
into port before her entry, does by that operation lose her
privileges as an American bottom and become subject to foreign
duties.
This question depends on the "act concerning the registering and
recording of ships and vessels," and more particularly on the 14th
and 17th sections of that act.
In construing the 14th section, much depends on the true
legislative meaning of the word "when." The plaintiffs in error
contend that it designates the precise time when a particular act
must be performed in order to save a forfeiture; the defendants
insist that it describes the occurrence which shall render that
particular act necessary. That the term may be used and either in
law or in common parlance is frequently used in the one or the
other of these senses cannot be controverted, and of course the
context must decide in which sense it is used in the law under
consideration.
The particular act to be performed in order to save the
forfeiture of the American character and the privileges attached to
it is the obtaining a new register, and the first inquiry is
whether this new register must be obtained at the time of transfer
or at some other convenient time on the event of a transfer.
This would seem to the Court scarcely to admit of a doubt. It
has been correctly argued that the precise
Page 8 U. S. 56
time to register the vessel anew cannot be prescribed by the
word "when," because the direction does not follow that word in the
sentence so as to be limited by it with respect to time. It is not
said that when a registered vessel shall be transferred or altered,
she shall obtain a new register or cease to be an American vessel,
but the continuity of the sentence is broken by interposing the
words "in every such case," thereby clearly making the forfeiture
to depend on the failure to register on the event described, not on
the failure to register at the precise time when the event
described occurs.
This observation also applies to a subsequent part of the
section, where the forfeiture is repeated, and depends on the
failure to register, not on the failure to register at the precise
time of transfer.
But this construction, which is the fair and natural exposition
of the words themselves, is rendered still more obviously necessary
by the nature of the case and by the context.
No man will contend that the transfer or the change in a vessel
and the obtaining a new register are to be simultaneous. The one
must precede the other, and unless the transfer, or the repairs and
alterations of the hulk or rigging are in all cases to be made in
the office from which the new register is to be obtained, a
reasonable interval between these acts must be allowed. This
reasonable interval will depend on the nature of the case.
When must a new register be obtained for a vessel which has been
altered or partially transferred to a citizen while at sea? The act
answers at the time of delivering up her former certificate of
registry. And when can this former certificate be delivered up?
Certainly not till the return of the vessel, for the certificate is
a paper necessary to the vessel, and is therefore always retained
on board while at sea.
This construction is really so obvious and inevitable that the
endeavor to make it more clear would seem to be a total
misapplication of time.
Page 8 U. S. 57
The question at what time the new register is to be obtained and
at what time the vessel shall be affected by the failure to obtain
it is susceptible of rather more doubt. There is no impossibility
in obtaining a new register before entry, and the necessity of
doing so must depend upon the words of the act and upon the nature
of the case.
It is obvious that on her arrival in port, the
Missouri
was an American vessel, and her cargo, when imported into the
United States, was liable to the duties imposed on American, not on
foreign bottoms. This is the clear consequence of establishing that
a new register was not required before the arrival of the
vessel.
If, then, the cargo when imported was liable only to the duties
on goods imported in an American bottom, it would certainly require
plain words to charge them, on any subsequent failure, with higher
duties.
If the words of the section be examined, they are, as has been
stated at the bar, prospective, not retrospective. They operate on
future, not on past transactions. "The vessel shall be registered
anew (otherwise she shall cease to be deemed a ship or vessel of
the United States.)" That is, she shall cease after the lapse of
the time when she ought to have been registered anew. But before
that time had elapsed, she had as an American vessel actually
imported a cargo whose liability to duties had commenced.
So in the subsequent clause:
"And in every case in which a ship or vessel is hereby required
to be registered anew, if she shall not be so registered anew, she
shall not be entitled to any of the privileges or benefits of a
ship or vessel of the United States."
That is, her future earnings shall not be attended with the
advantages annexed to American bottoms.
This construction derives some corroboration from the 17th
section. This section provides for the oath which is to be taken by
an owner on the entry of an American vessel. "That upon the entry
of every ship," &c.
Page 8 U. S. 58
If upon the entry the owner shall refuse to take this oath, the
vessel loses the privileges of an American bottom. If he takes it
and the oath discloses no fact which has already forfeited those
privileges, she retains them. It is observable that in order to
retain them, she is not required to take out a new register if an
alienation has been made, and this strengthens the idea that if
such an alienation be not in itself a forfeiture, a new register
cannot be requisite so far as respects the voyage already
concluded.
In the case of alienation to a foreigner, the privileges of an
American bottom are
ipso facto forfeited; but in the case
of an alienation to a citizen they are not forfeited until after
she ought to have been registered anew, and the oath which entitles
her to enter as an American bottom does not require such new
register.
But it has been argued that the omission to execute a bill of
sale in writing at the time of sale is in itself a forfeiture of
the American character.
The words of the act are "And in every such case of sale or
transfer," &c.
These words attach to the omission the penalty which the law
annexes to it, and no other can be inflicted. This is not that the
vessel shall lose her American character, but that she shall be
incapable of being registered anew. The bill of sale therefore can
only be required when the new register is to be obtained, and if it
be then produced, the new register cannot be refused.
An opinion has already been indicated that in the case of a
transfer or alienation at sea, a new register is not necessary to
protect from alien duties the vessel which arrives and the cargo
which was actually imported while the old register was in full
force. But it is the opinion of the Court that in the case under
consideration, no new register was requisite.
The new register must be in everything but its date a precise
copy of the old one. The oath to be administered on the entry could
be truly and fairly taken. The
Page 8 U. S. 59
names of all the persons who were at the time owners of the
vessel were in the old register. The intermediate alienation and
repurchase of part of the vessel had worked no forfeiture, and had
created no necessity for a new register. The parties to whom the
alienation had been made, not having property in the vessel at the
time of entry, could not have taken the oath prescribed by law,
which is in the present tense and refers to the actual state of the
property at the time of entry; nor could a new register have issued
to them in order to be delivered up for the purpose of making out
another register for the original owners, who had become the
present owners, without departing from the truth of the case,
because the register also speaks in the present tense, and must
recite the names of those who are the real owners at its date. Any
new register which could have issued must have been, except in
date, a duplicate of the old one, and must have been perfectly
useless. Suppose the ship had been altered in a foreign port, but
before her arrival and entry had resumed the form and dimensions
mentioned in her old register, would it be pretended that a new
register was necessary? What would such new register be but a copy
of the old one? It is believed that in such a case it would not be
suspected that any forfeiture of the old register, or any necessity
for a new one, was produced, and between the two cases there
appears to be no difference made by the letter or the spirit of the
act.
The Court is therefore unanimously of opinion that the sentence
of the circuit court be affirmed.
Judgment affirmed.
