A decree of acquittal on a proceeding
in rem without a
certificate of probable cause of seizure, and not appealed from
with effect, is conclusive, in every inquiry before any other court
that there was no justifiable cause of seizure.
The French Tonnage Duty Act of 15 May, 1820, c. 125, inflicts no
forfeiture of the vessel for the nonpayment of the tonnage duty.
The duty is collectable in the same manner as by the Collection Act
of 1799, c. 128.
The twenty-ninth section of the Collection Act of 1799, c. 128,
does not extend to the case of a vessel arriving from a foreign
port and passing through the conterminous waters of a river, which
forms the boundary between the United States and the territory of a
foreign state, for the purpose of proceeding to such territory.
The municipal laws of one nation do not extend in their
operation beyond its own territory except as regards its own
citizens.
A seizure for the breach of the municipal laws of one nation
cannot be made within the territory of another.
It seems that the right of visitation and search, for enforcing
the revenue laws of a nation may be exercised beyond the
territorial jurisdiction upon the high seas and on vessels
belonging to such nation or bound to its ports.
A municipal seizure cannot be justified or excused upon the
ground of probable cause unless under the special provisions of
some statute.
The probable profits of a voyage, either upon the cargo or
freight, do not form as item for the computation of damages, in
cases of marine torts.
Where the property is restored after a detention, demurrage is
allowed for the detention of the ship, and interest upon the value
of the cargo.
Where the vessel and cargo have been sold, the gross amount of
the sales, with interest, is allowed, and an addition of ten
percent sometimes made, where the property has been sold under
disadvantageous circumstances.
Counsel fees may be allowed, either as damages or costs, both on
the instance and prize side of the court.
Page 22 U. S. 363
MR. JUSTICE STORY delivered the opinion of the Court.
This is a libel brought by the master of the French ship
Apollon against the Collector of the District of St.
Mary's, for damages occasioned by an asserted illegal seizure of
the ship and cargo by the respondent while she was lying in Belle
River, a branch of the St. Mary's, within the acknowledged
territories of the King of Spain.
There is no dispute as to the national character of the ship. It
appears that she sailed from France, bound to Charleston, in South
Carolina, but as apprehensions were then entertained that the
proposed tonnage duty on French vessels might be passed by
Congress, an alternative destination was given to her for a Spanish
port, the object of the voyage being to land her cargo in the
United States, and to take a return cargo of cotton to France. The
cargo was partly owned by French subjects and partly by a Mr. Le
Maitre, a domiciled
Page 22 U. S. 364
merchant at Charleston, who was also the consignee. Upon her
arrival off the port of Charleston, the master ascertained that the
French tonnage duty act had passed, Act of 15 May, 1820, ch. 125,
and therefore declined entering the port. He had on board some
specie belonging to the Bank of the United States which, by the
permission of the collector, was brought on shore by the revenue
cutter. Having obtained information from the collector that Amelia
Island was not deemed an American territory, he sailed for that
place, under the direction of the consignee, and there the ship lay
for a considerable time, while the master proceeded to St.
Augustine, a distance of about eighty miles, where he entered his
ship and cargo, and paid the regular duties required by the Spanish
authorities. While at this port, he ascertained that the local
authorities had it in contemplation to establish a new port of
entry, to be called St. Joseph's, on Belle River, within the
Spanish territory, and to appoint officers of the customs to reside
there. The unquestionable object of this establishment, as
disclosed in some correspondence between the immediate agents,
which is inserted in the transcript, was to have a convenient
depot, for the purpose of carrying on an illicit trade, in fraud of
the revenue and navigation laws of the United States. Indeed it is
manifest that there could be no other object, for there was no
commercial population in the neighborhood whose wants were to be
supplied in the regular course of commerce. Of this object,
perhaps, Captain Edon was not ignorant, but he
Page 22 U. S. 365
does not appear to have participated in any of the schemes
connected with it. His own avowed object was to transship his cargo
into the United States and to receive from thence a cargo of cotton
without subjecting himself to the payment of the French tonnage
duty. Part of the cargo was sold at St. Augustine, probably to pay
duties and charges, and upon Captain Edon's return to Amelia
Island, under the advice and instructions of the Spanish officers
of the customs, he removed his vessel from Amelia Island up Belle
River, about six or eight miles, and after having lain at anchor
near St. Joseph's for eighteen days, the ship with her cargo was
there seized by the collector of St. Mary's and carried to the
latter port for adjudication. Admiralty proceedings were instituted
by the attorney for the United States in the District Court of
Georgia, to subject the ship to the payment of the tonnage duty,
and the cargo to forfeiture; but upon the hearing of the cause, the
court awarded a decree of restitution of the ship and cargo. From
this decree the government interposed an appeal, but the appeal was
finally abandoned before any hearing in the appellate court. In the
meantime, the present libel for damages was instituted, and some
difficulty arose as to the propriety of entertaining it during the
pendency of the other suit, because in that suit it was competent
for the court to award damages, if the seizure was without
reasonable cause. The objection was well founded, but it was
withdrawn from the anxious desire of the government to have the
cause speedily adjudged in the proper tribunal, upon
Page 22 U. S. 366
the substantial merits. Upon the hearing of this cause, the
district court pronounced a decree for damages from which an appeal
was taken to the circuit court, and from the decree of the circuit
court, confirming the decree of the district court, with an
addition of thirty-three and a third percent to all demurrage
allowed by the latter, the present appeal was taken, and the cause
now stands for a final decision.
The questions arising upon the record have been argued with
great zeal and ability, and embrace some considerations which
belong more properly to another department of the government. It
cannot, however, escape observation that this Court has a plain
path of duty marked out for it, and that is to administer the law
as it finds it. We cannot enter into political considerations on
points of national policy or the authority of the government to
defend its own rights against the frauds meditated by foreigners
against our revenue system, through the instrumentality and
protection of a foreign sovereignty. Whatever may be the rights of
the government, upon principles of the law of nations, to redress
wrongs of this nature, and whatever the powers of Congress to pass
suitable laws to cure any defects in the present system, our duty
lies in a more narrow compass, and we must administer the laws as
they exist, without straining them to reach public mischiefs, which
they were never designed to remedy. It may be fit and proper for
the government, in the exercise of the high discretion confided to
the executive, for great public purposes,
Page 22 U. S. 367
to act on a sudden emergency, or to prevent an irreparable
mischief, by summary measures, which are not found in the text of
the laws. Such measures are properly matters of state, and if the
responsibility is taken, under justifiable circumstances, the
legislature will doubtless apply a proper indemnity. But this Court
can only look to the questions whether the laws have been violated,
and if they were, justice demands that the injured party should
receive a suitable redress.
The first question is whether there was a justifiable cause of
seizure. This question has been already decided in the proceedings
in rem, and the decree of acquittal, not having been
appealed from with effect, is conclusive evidence in every inquiry
before every other tribunal, that there was no such cause. This
point was decided upon great consideration, in the case of
Gelston v.
Hoyt, 3 Wheat. 246, and is not believed to be
susceptible of any legal doubt. In the present case, however, as
the parties have been induced to waive objections to this libel,
for damages pending the former suit, upon the supposition, that the
same questions might be as open here as there, it may not be amiss
to examine the ground upon which the right of seizure is now
attempted to be maintained. As to any forfeiture, or supposed
forfeiture, under the Act of 1820, ch. 125, it is very clear that
it cannot be maintained. That act simply authorizes a tonnage duty
of eighteen per ton, to be collected on all French ships, which
shall be entered in the United States,
Page 22 U. S. 368
and provides for the collection of the duty, in the same manner
as tonnage duties are to be collected by the collection act of
1799, ch. 128; but this act inflicts no forfeiture for the
nonpayment of the tonnage duty, nor did the libel
in rem
even affect to proceed for any such forfeiture.
The consideration of this act may then be at once dismissed. But
the 29th section of the collection act of 1799 is supposed to
contain a direct authority for the seizure. That section
provides
"That if any ship or vessel, which shall have arrived within the
limits of any district of the United States from any foreign port
or place shall depart or attempt to depart from the same, unless to
proceed on her way to some interior district to which she may be
bound, before report or entry shall have been made by the master,
&c., with the collector of some district of the United States,
the master, &c., shall forfeit and pay the sum of $400, and it
shall be lawful for any collector, &c., to arrest and bring
back or cause to be arrested and brought back such ship or vessel
to such port of the United States to which it may be most
conveniently done."
It is observable that no forfeiture is here inflicted upon the
vessel or cargo, but the penalty is personal upon the master. There
was no pretense, then, to institute proceedings in the district
court
in rem for the forfeiture, and the delay occasioned
by such proceedings was clearly unjustifiable; in fact, the
original libel did not proceed for any forfeiture except against
the cargo. But it is said that the arrest and bringing into port
was justifiable because
Page 22 U. S. 369
the ship had entered the District of St. Mary's and had departed
therefrom without making any report or entry. The District of St.
Mary's, by law, comprehends "all the waters, shores, harbors,
rivers, creeks, bays, and inlets from the south point of Jekyl
Island, exclusive, to St. Mary's River, inclusive." St. Mary's
River formed, at this period, the boundary between the United
States and the Spanish territory, the boundary line, by the treaty
of 1795, running through the middle thereof, in its whole course to
the Atlantic ocean. The only access from the ocean to the Spanish
waters running into the St. Mary's as well as to the adjacent
Spanish territories was through this river. So that upon the
general principles of the law of nations, the waters of the whole
river must be considered as common to both nations for all purposes
of navigation as a common highway, necessary for the advantageous
use of its own territorial rights and possessions.
There is no doubt that the
Apollon did not enter the
St. Mary's for the purpose of going into any American port for
trade or intercourse. Her avowed destination was for the Spanish
waters and Spanish territories, and she never anchored in the St.
Mary's except upon the Spanish side of the river. Her proceeding up
Belle River was still more decisive of this intention. Under such
circumstances the question arises whether a mere transit through
the waters of the St. Mary's for the purpose of proceeding to the
Spanish territory is to be deemed an arrival within the limits of
the United States from a foreign port within the sense of the 29th
section
Page 22 U. S. 370
of the act already referred to. We are decidedly of opinion that
it cannot be so considered. The laws of no nation can justly extend
beyond its own territories except so far as regards its own
citizens. They can have no force to control the sovereignty or
rights of any other nation within its own jurisdiction. And however
general and comprehensive the phrases used in our municipal laws
may be, they must always be restricted in construction to places
and persons, upon whom the legislature has authority and
jurisdiction. In the present case, Spain had an equal authority
with the United States over the River St. Mary's. The attempt to
compel an entry of vessels destined through those waters to Spanish
territories would be an usurpation of exclusive jurisdiction over
all the navigation of the river. If our government had a right to
compel the entry at our custom house of a French ship in her
transit, the same right existed to compel the entry of a Spanish
ship. Such a pretension was never asserted, and it would be an
unjust interpretation of our laws to give them a meaning so much at
variance with the independence and sovereignty of foreign
nations.
The true exposition of the 29th section is that it means to
compel an entry of all vessels coming into our waters being bound
to our ports, and the very exception of vessels bound to some
interior district demonstrates the sense of the legislature by
indicating the entire stress laid upon the destination of the
vessel. But even supposing for a moment that our laws had required
an entry of the
Apollon in her transit, does it follow
Page 22 U. S. 371
that the power to arrest her was meant to be given, after she
had passed into the exclusive territory of a foreign nation? We
think not. It would be monstrous to suppose that our revenue
officers were authorized to enter into foreign ports and
territories for the purpose of seizing vessels which had offended
against our laws. It cannot be presumed that Congress would
voluntarily justify such a clear violation of the laws of nations.
The arrest of the offending vessel must therefore be restrained to
places where our jurisdiction is complete, to our own waters, or to
the ocean, the common highway of all nations. It is said that there
is a revenue jurisdiction which is distinct from the ordinary
maritime jurisdiction over waters within the range of a common shot
from our shores. And the provisions in the collection act of 1799
which authorize a visitation of vessels within four leagues of our
coasts are referred to in proof of the assertion. But where is that
right of visitation to be exercised? In a foreign territory, in the
exclusive jurisdiction of another sovereign? Certainly not, for the
very terms of the act confine it to the ocean, where all nations
have a common right and exercise a common sovereignty. And over
what vessels is this right of visitation to be exercised? By the
very words of the act, over our own vessels and over foreign
vessels bound to our ports, and over no others. To have gone beyond
this would have been an usurpation of exclusive sovereignty on the
ocean, and an exercise of an universal right of search, a right
which has never yet been acknowledged by
Page 22 U. S. 372
other nations, and would be resisted by none with more
pertinacity than by the American. Assuming, then, the distinction
to be founded in law, it is inapplicable to a case where the
visitation and arrest have been in a foreign territory. It appears
to us, then, that the
Apollon was not bound to make entry
at our custom house, and that the arrest was, under the
circumstances, wholly without justification under our laws.
The next question which has been argued at the bar is whether
there was is this case probable cause of seizure. The most that can
with correctness be argued on this point is that there was probable
cause to arrest the vessel under the 29th section of the collection
act, but neither that section nor any other law authorized a
seizure as for a forfeiture in this case, much less a prosecution
in rem to enforce a forfeiture, and so indeed the original
libel
in rem considered the case. But before adverting to
the facts urged in support of the suggestion of probable cause, it
may not be improper to consider how far the existence of probable
cause can be inquired into or constitutes matter of defense in a
suit like the present. Some obscurity arose at the argument from
not distinguishing between the effect of probable cause in cases of
capture
jure belli and the effect in cases of municipal
seizures. In respect to the former, no principle is better settled
in the law of prize than the rule that probable cause will not
merely excuse, but even in some cases justify a capture. If there
be probable cause, the captors are entitled as of right to an
exemption from damages, and if
Page 22 U. S. 373
the case be of strong and vehement suspicion, or requires
further proof to entitle the claimant to restitution, the law of
prize proceeds yet further and gives the captors their costs and
expenses in proceeding to adjudication. But the case is far
different in respect to municipal seizures. Probable cause has
never been supposed to excuse any seizure except where some statute
creates and defines the exemption from damages. The party who
seizes seizes at his peril; if condemnation follows, he is
justified; if an acquittal, then he must refund in damages for the
marine tort unless he can shelter himself behind the protection of
some statute. The very act under which the present seizure is
sought to be justified contains an express provision on the subject
and shows the clear opinion of the legislature. It declares in the
89th section
"That when any prosecution shall be commenced on account of the
seizure of any ship or vessel, goods, &c., and judgment shall
be given for the claimant, &c., if it shall appear to the court
before whom such prosecution shall be tried that there was a
reasonable cause of seizure, the said court shall cause a proper
certificate, or entry, to be made thereof, and in such case the
claimant, &c., shall not be entitled to costs, nor shall the
person who made the seizure, or the prosecutor, be liable to
action, suit, or judgment on account of such seizure or
prosecution."
By a subsequent act, Act of 24 February, 1807, ch. 74, the like
provision is extended to all seizures "under any act of Congress
authorizing such seizures." It is apparent from
Page 22 U. S. 374
the very language of this clause that unless the certificate be
obtained in the manner prescribed by the law, the seizing officer
is liable to a suit for damages. And it was adjudged by this Court
in the case of
Gelston v.
Hoyt, 3 Wheat. 246, that the denial of such
certificate was conclusive evidence that there was no probable
cause of seizure. No certificate was given upon the original libel
instituted against the
Apollon and cargo, and restitution
having been decreed without it, it follows of course that probable
cause can in point of law form no excuse against damages in this
ease. It is true that if vindictive damages were sought, the
circumstances of suspicion might properly go in mitigation, but
where, as in the present case, compensation only is sought, the
inquiry into the existence of such probable cause can have no legal
operation upon the merits of the controversy.
But how stands the fact as to the existence of probable cause?
It has been very justly observed at the bar that the court is bound
to take notice of public facts and geographical positions, and that
this remote part of the country has been infested at different
periods by smugglers is matter of general notoriety, and may be
gathered from the public documents of the government. But the
question whether the
Apollon designed to engage in this
unlawful traffic must be decided by the evidence in this record,
and not by mere general suspicions drawn from other sources. It is
somewhat remarkable that no act or attempt of smuggling is charged
upon her by any testimony
Page 22 U. S. 375
in the record. Her avowed intention was to send her cargo into
the United States, but in what manner? It was perfectly lawful to
transship the cargo, in American or other foreign vessels, to our
ports; no law was violated thereby, and no evasion of the French
tonnage duty accomplished, for the expense of the transshipment
must have been supposed by Congress to be, in ordinary cases, a
full equivalent to the increased duty. It has been very justly
observed at the bar that the act of Congress was not intended to
operate as a nonintercourse or nonimportation law, but merely as an
additional and onerous tax upon French navigation, in retaliation
of the restrictions of France upon our navigation. The policy of
the act was therefore as completely effected by compelling French
ships to perform circuitous voyages, and thus to incur the
disadvantages of transshipments, as by payment of the tonnage duty.
Now it is principally from the declarations and admissions of Capt.
Edon himself that the designs of his voyage are known, and if we
take part of his testimony, we ought in fairness to call in aid
every explanation that he gives on the subject. He utterly
disclaims any intention of fraud, and his declarations on this
point have not been discredited. But admit that he had an intention
of illegal trade, how could that intention, not carried into effect
within our jurisdiction, afford probable cause of seizure in a
foreign territory? It was not matter of doubt that Belle River was
within the limits of Florida, and how can there be probable cause
of seizure under our laws when
Page 22 U. S. 376
the vessel is in a place exempt from our jurisdiction? It is
unnecessary to pursue this subject further, as in point of law
probable cause, if it existed, would not, under the circumstances
of this case, constitute a valid defense.
The remaining question is as to the damages. The district court
allowed the following items of damage:
1. Demurrage of the ship for 175 days, at $30 per day. This
item, upon the appeal, was enhanced by the court, as has been
already stated, to $40 per day.
2. The difference between the amount of the sales of the cargo
(which was sold under a perishable monition), being $3,523.10, with
ten percent thereon, and the net proceeds of the sales, which had
been restored to the claimants, that difference being $1,215.99,
together with six percent interest thereon.
3. The allowance of $250 to the libellant for traveling expenses
to Washington.
4. The allowance to the second captain of $100 for his traveling
expenses to Savannah on the business of the ship.
5. The allowance of $500 as necessary counsel fees.
The principal arguments against this decree have been directed
to the allowance of demurrage as a just measure of compensation.
The attorney general contends that it ought to be disallowed as far
too high a compensation; the counsel for the libellant as an
allowance unreasonably low. This Court on various occasions has
expressed its decided opinion that the probable profits of a
voyage, either upon the ship or cargo, cannot furnish
Page 22 U. S. 377
any just basis for the computation of damages in cases of marine
tort. The basis has accordingly been in every instance rejected.
Where the vessel and cargo are lost or destroyed, the just measure
has been deemed to be their actual value, together with interest
upon the amount from the time of the trespass. Where there has been
a partial injury only, that loss being ascertained, a similar rule
has been applied. Where the property has been restored after
detention, demurrage during the period has been generally allowed
for the vessel, and interest upon the value of the cargo. Where the
vessel and cargo have been sold, the gross amount of the sales,
together with interest, has been adopted as a fair recompense, and
the addition of ten percent has been sometimes made where the
property was sold under disadvantageous circumstances or had not
arrived at the country of its destination. Such, it is believed,
have been the rules most generally adopted in practice in cases
which did not call for aggravated or vindictive damages. And it may
be truly said that if these rules do not furnish a complete
indemnification in all cases, they have so much certainty in their
application and such a tendency to suppress expensive litigation
that they are entitled to some commendation upon principles of
public policy.
But it is now said that demurrage always arises
ex
contractu, and therefore cannot furnish any rule of
compensation in cases of tort. The practice in courts of admiralty
has certainly been otherwise, and the very cases cited at the
bar
Page 22 U. S. 378
show that no distinction has been taken as to its application
between cases of contract and cases of tort. In truth, demurrage is
merely an allowance or compensation for the delay or detention of a
vessel. It is often a matter of contract, but not necessarily so.
The very circumstance that in ordinary commercial voyages a
particular sum is deemed by the parties a fair compensation for
delays is the very reason why it is and ought to be adopted as a
measure of compensation in cases
ex delicto. What fairer
rule can be adopted than that which founds itself upon mercantile
usage as to indemnity, and fixes a recompense upon the deliberate
consideration of all the circumstances attending the usual earnings
and expenditures in common voyages? It appears to us that an
allowance by way of demurrage is the true measure of damages in all
cases of mere detention, for that allowance has reference to the
ship's expenses, wear and tear, and common employment. Every other
mode of adjusting compensation would be merely speculative and
liable to the greatest uncertainties. In respect to the quantity of
the allowance in the present case, there is a diversity of evidence
on the record. Two of the witnesses examined upon the appeal speak
of $30 and one of $40 as a reasonable demurrage. The circuit court,
upon this new testimony, allowed the latter, and as it is perfectly
clear that every judge in his own circuit must have better means of
weighing the testimony of credible witnesses, from a more exact
acquaintance with their experience and extent of business, than we
can
Page 22 U. S. 379
possibly derive from the bare inspection of the records, and as
we perceive no reason to be dissatisfied with his judgment, we
think that the decree on this point ought to be confirmed.
The second item is perfectly correct except as to the allowance
of the ten percent. The cargo was sold at the market, though not at
the port, of its destination, and from the appraisement it appears
to have sold for a higher price than it was valued at. The ground
of the allowance of the ten percent then fails, for that is given
for supposed losses upon a forced sale, or a falling market.
The third item, though small, does not appear to us proper to be
allowed upon principle. It was no necessary expense in the
prosecution of the suit, and, as it has been objected to, it must
be struck out. The fourth item is not open to the same objection,
and therefore may well stand.
The fifth item, allowing $500 as counsel fees, is in our opinion
unexceptionable. It is the common course of the admiralty to allow
expenses of this nature either in the shape of damages or as part
of the costs. The practice is very familiar on the prize side of
the court; it is not less the law of the court in instance causes,
it resting in sound discretion to allow or refuse the claim.
Upon the whole, the decree of the circuit court is to be
reformed in these not very important particulars; in all other
respects, it is affirmed, and interest is to be allowed at the rate
of six percent upon the amount of the decree thus reformed
Page 22 U. S. 380
from the time of the appeal from the circuit court until it
shall be carried into effect in the same court pursuant to the
mandate of this Court.
DECREE. This cause came on to be heard, &c., on
consideration whereof, it is ORDERED and DECREED by the Court that
the decree of the circuit court awarding the sum of $8,695.37
damages to the libellant, with his costs of suit, be in part
reversed, to-wit, for the sum of $602.31, and be affirmed in all
other respects, and that the libellant do recover of the
respondent, the said amount of damages decreed in the said circuit
court, deducting the said sum of $602.31, to-wit, the sum of
$8,093.06, together with interest at the rate of six percent per
annum on the same sum from the date of the decree in the circuit
court to the period of carrying this decree into effect in the
circuit court, pursuant to the mandate of this Court.