Feb i_, 1898.] 



FOREST AND STREAM, 



111 



THE CONQUEROR CASE. 



U. S. DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK. 



Frederick. W. A'andefbilt 



l 



The Steam Yaoht Conqueror ( 



AND J. SLOAT FASSBTT. 



JS ADSEERALTS. 



Elihu Root and Ssiuuel B. Clark*-, for the Libellant. 

 Edwatd Milch* 11, United States Disirict Attorney, and Henry C. 

 Piatt, Assistant Lnited States District Attorney, for the 

 Claimant and Respondent. 



Prown. J.— On September 1. 1891, the libel'ant brought the above 

 possessory action against J, Sloat Fassett, Collector at this port, to 

 recover possession of his yacht, the Conqueror, which the Collector 

 had taken and held in his custody on the claim that she was subject 

 to customs duties. The authority of the Court to proceed in the mat- 

 ter beij g denied, the Marshal), under an alias process and the explicit 

 ord«-r of the Court, look the yacbt.out of the possession of the officers 

 of customs into his exclusive custody; and thereafter on Oct, 19, 1891, 

 upon the application of Fassetr. to the Supreme Court, i*u order was 

 obtained requiring this Coin t to show cause « hy a writ of prohibition 

 should not i sue torbidiing this Cou r tfrorn further entertainirg the 

 cause. On the hearing or that order the question, both of the juris- 

 diction of this Court 2nd whether the yacht was du'iable under the 

 eustomslaws. was fully argued. The Supreme Court denied the writ 

 of prohibition on ihe ground that this Court had lawful jurisdiction, 

 both of the parties and of ihe subject matter, without considering 

 whether the yacht was liable to duty as an imported article. 



The proofs Since taken sustain the main facts stated in the libel and 

 the answer. The defendant claims no other tight to the custody of 

 the yacht than for the collection of customs duties. The proofs show 

 that Mr. Vandeibilt. a native bom citizen" of the United States and a 

 member of the Royal Mersey Yacht Cluh. of England, purchased the 

 yacht in England, on May 7, 1891, o£W. S. Hailey, the registered 



the whole intention of Congress In reference thereto, the, usual rule 

 in the construction of statutes would exclude ships a.nd vessels from 

 the purview of ordinary tariff legislation as regards imports of goods, 

 wares and merchandise, in th<3 absence of any provisions showing a 

 clear inten im to include ships and vessels and thus to impose on 

 them a double duty. Examination of all the tariff acts, including 

 that of Oct, 1, 1890, shows that in not one of tbem are ships or vessels 

 named in the schedules of import*; nor is there a single phrase under 

 which they can be classed except by a strained and unnatural con- 

 struction. By the rule of construction above referred to, therefore, 

 and without reference to tne practice of the Government for more 

 than a centurv not to treat vessels coming here in the usual course of 

 navigation as subject, to tariff duties on imports, all such vessels 

 should be held subji-c't to such duties only as are. imposed under the 

 special acts dealing with ships and vessels, and not subject to the 

 acts dealing only with duties on imported merchandise. 



While the foregoing genera! view seems to me. quite sufficient for 

 the decision of the came, the. novelty of the subject makes proper, 

 perhaps, a consideration of it more in detail. 



Duties upon the vacht are claimed to be due under the customs 

 act of Oct. 1, 3890 (86 St. at L , 66?). That act declares, in its fi st 

 paragraph, that ''there shall be levied, collected and paid upon all 

 aitieles in ported from foreign countries and mentioned in the 

 schedules herein contained, the rates of duty by the scbeclulea pre- 

 scribed." To come within the act the article must be (1) imported; 

 (2) mentioned in tbe schedules, and (3) full witbin the general scope 

 and in ten' ion of this act, rather than within those other acts that 

 provide specially for duties upon ships and vessels. Neither of tht-se 

 conditions seem to me to exist as regards such a vessel as the < jon- 

 querer. She isa sea going, schooner-tigged, sci aw steamship, 18234ft". 

 long, nearly -?5tt. wide, and i3i/&fc. deep; her measurement is about 

 873 tons gross. %W 6 tons net. tier crew consists of twenty-five men. 

 She came to this country in tbe ordinary course of navigation, as a 

 pleasure yacht, duly entered at the Custom House, and j resented 

 the bill of sale in conformity with t he Treasury regulations applica- 

 ble to foreign built vessels purchased by citizens of this com dry as 

 above stated. She paid no tonnage duty, because Section 4216 of the 

 Revi-ed Statutes abolished that duty upon yachts belonging to a 

 regularly organized yacht club of a foreign nation which extended 

 similar privileges to yachts of this country. 

 1. A vessel arriving in this way is not, in my judgment, an "irn- 



acts, and for the lack of env apt wwJs in those sets t# include tbem, 

 is tbe fact first above mentioned, viz.: that from the founda ion of 

 the Government the duties on shios and vessels bav-> been repulated 

 by acts independent of ihe customs laws, and under a different 

 system of legislation. From 'he flr-t. duties on imports and duties 

 on ships and ve>se]s have been always treated as separate and inde- 

 pendent subjects. The first act of tbe first Corgress was for i s o»n 

 organization. The second act was an net laying a duty on "go">ds, 

 wares, and merchandise imported" (1. St, at L., Chap. 3. p. 24). The 

 very next act. passed July 20, 1789 (1 St. at L.ihap. 3 p. 27). pro- 

 vided for duties on ships and vessels. It is enacted that the "'fo'low- 

 ing duties shall be and are bprehy toiposed on all ships or vessels 

 entered in the United. States " imposing different rates of du'yper 

 ton, viz : (1) on those built and owned here, fi cents perron; t2) on 

 those built here, but belonging wholly or in part to foreigners, SO 

 cents per ton; and (3) on all other ve sel«, i e., thos-> built abroad, SO 

 cent* ppr ton. This dis^ine ion between ships and vessels dutiable at 

 certain ratts per ton, and goods, wares and merchandise imported, 

 and dutiable at specific or ad va rolem rates, has continued to the 

 present hour, and has beeu reeoeniz -d in scores of acts. The Revised 

 Statutes. §4,219. enact that 'upon vessels enterfd in the United 

 States from any foreign port there shall be paid duties as iollows." 

 specifying various different rates per ton: Sec. 4,223 provided that 

 '■the tonnage duty imposed on all vessels engaged in foreign com- 

 merce shall be levied once a year " By the Act of June 19, 18t6 <2i 

 St. at L., p. 82. § 11). "A duty of 6 cents per ton, not toexcetd 30 cents 

 per ton per annum," was "imposed at each entry upon all vessels 

 entered irom any foreign ports, net, however, to include vessels in 

 distress:, or not engaged in trade." In the numerous statutes which 

 have regulated the changes in the rate of 'onnagedury, arid the distinc- 

 tions made between domes' ic and foreign-built vessels, tbc.se duties 

 are sometimes spoken of simply as "duties on ships and vessels," as 

 in the first act : sometimes as "duties" on the tonnage of *bips. or as 

 "tonnage duties on ships," or as a "tonnag-i tax." Th" various ex- 

 pressions all signify the same thine. All are "duties" imposed as 

 directly upon ships as the tariff dufies are imposed upon merchan- 

 dise. The two classes of subject are wholly distinct. The tmnasre 

 duty is thednty provided to be paid by ships; the tariff duty by im- 

 ported merchandise. Each class is governed by its own laws, and 

 neither is designed to pay a double tax. 

 The reason for tbe distinction is obvious. Vessels are destined to 



STEAM i p ACHT "CONQUEROR.*' 



owner of the yacht, by a bill of sale in the usual form; that after 

 cruising id the waters of Great Britain »nd Norway, the yacht was 

 navigated bv her master to Halifax, and thence to the United States, 

 arriving at ihe port of New York on or about July 6. 1891 ; that on ar- 

 rival ber« the yacht, was entered at the Custom House, tbe bill of 

 sale, previously certified by the American Consul at Liverpool, being 

 presented to the Collee or for record and certification, and that the 

 Collector's certinca e was endorsed thereon in accordance with Arti- 

 cles 93 to 97 of the Treasury Regulations of 1884. entitling the yacht 

 to the protection and fiag of the United States, but not entitling her 

 to ens-age in commerce (Re v. St.. §2407t; that the Collector claimed 

 that the yacht was subject to customs duties as an impoit^d article, 

 and that such duties net being paid, he. on August 27, 1S91. by his 

 deputies, took: possession of and held her for ihe payment mi such 

 duties, un'il she was arrested by the Marshall as above stated. 



Tue libel being filed to recover possession of a vessel alleged to be 

 wrongfully detained, it is immaterial whether at tbe moment of the 

 filing of the libel, or of the issuing of the original process, the yacht 

 was witbin the territorial limits of this jurisdiction, or in the waters 

 of tl'-e adjoining district, for she presently came within the territor- 

 ial jmi-tliction of the. Court and was there lawfully and regularly 

 arrested under the process. The process was not void merely because 

 when issued the yacht was across tbe boundary line of this district, 

 Toe Supreme Court having all the facts upon the record before it, 

 has expressly affirmed the jurisdiction of the Court over both the 

 vessel and the parties, and its authority to proceed with tbe cause. 

 Tbe only remaining question as whether the yacht is subject to eus 

 toms duties. If she is not, the seizure anrt possession by the Collec- 

 tor were illegal, and it is the duly of the Court to give the libellant 

 judgment, and' a writ of possession. 



The history of legislation in this country iu reference to ships and 

 vessel^, as shown by scores of acts in the United States Statutes at 

 Large, leaves no doubt ^as it seems to me, 'hat from the beginning 

 •chips and vessels have bem treated as a subject sui generis, and that 

 the acts of Congress in regard to them form a complete system by 

 itself, wholly outside of ordinary tariff legislation as respects im- 

 ported goods, wares and merchandise. Duties on vessels have always 

 been imposed, but never in those acts, or in the same sections of acts, 

 that deal with customs duties on goods war»s and merchandise. 

 They have always been imposed either by independent acts, or by 

 independent sections in the same act, and by different methods from 

 iho-e applicable to merchandise. vii., duties computed hy tonnage. 

 Protection to American industries also, and the development of 

 American commerce and of the American marine, so sedulously 

 studied from the first, have been proy ded for in ways altogether 

 peculiar to ships and vessels alone; n&t merely by exacting higher 

 duties on foreign built vessels than upon domestic ones, but higher 

 duties also upon the cargoes brougnt in foreign bottoms (stil! the 

 law- except where exempted hy special treaty stipulation,)! and, 

 finally, by excluding foreign vessels, altogether from American regis- 

 try, so that no foreign bm It ship can become a vessel of the United 

 State 1 , except by a special act of Congress, or take part in the coast- 

 ing or internal trade of the country. Not a decade his passed since 

 tbe. foundation of the Government, during w r hich one or more, often 

 several, changes have not been made in the regulation of the duties 

 to be paid hy foreign and domestic vessels, and id the discriminations 

 affecting the vessels of particular countries. These acts are much 

 more numerous than the 'ariff acts, ami show the constant presence 

 of tbe subject iu the mind, of Congress, 



In view of such a body of legislation evidently forming a system by 

 itself, and covering tbe subject of duties to be paid to the Govern- 

 ment by foreign or domestic vessels coming to this country iu tho 



sual course of navigation, aiid presumptively , therefore, erabodyin g 



ported" article within the meaning of the Tariff law. The word 

 ••imported" has in general the same meaning in the tar 'ft laws that 

 ils etymology shows (in. porta, to bear, to carry) To import is to 

 bear or carry into. An imp rted article is an article brought or ear- 

 lied into this country from abroad. This yacht was not borne or 

 carried into this country. Vessels are the means or instruments of 

 importation. Tney are not ordinarily themselves imported. The 

 definition of a vessel in Section 3 of tbe Revised Statu'es is "evfry 

 description of water craft * * * capable of being used as a mean's 

 of transportation on water." A vessel arriving iu the o-dmarv 

 course of navigation is no more imported, in the ordinary sense of 

 that word, than she is transported. Occasionally small c raft are 

 carried from one country to another on board of larger vpssels. 

 When thus transported irom one country to another they a e im- 

 ported, and so far may be subject to duties as imports. The present 

 is no such case. 



2. Ships and vessels are not "mentioned" by name in any of the 

 schedules or paragraphs prescribing duties. Tbe only paragraphs 

 under which it is claimed they might be brought are paragraph 215, 

 as "manufactures of iron or steel * * * whether partly or wholly 

 manufactured ;" paragrapb 230, as "manufactures of wood;" para- 

 graph 137, as "beams, posts, building forms, etc., together with all 

 pi bf.r si ructural shapes of iron cr steel, whether plain or runcbed, or 

 fitted for use;" paragraph 153, "anchors or parts thereof, of iron or 

 steel, wrought iron for ships, forgings of iron or steel for vessels or 

 parts thereof ;" and Section 4 of the Act, as "er'ieles manufactured in 

 whole or in part, not provided for in this act " Paragraphs 117 and 

 153 plainly enough refer to the articles in their separate fo nts; not 

 when found built into, or forming a part of. such a construc- 

 tion as a vessel, which must be treated as a unit. Para- 

 graphs 315 and 210 and Sec! ion 4 relate only to articles "man ufac- 

 tueed;" the first imposes a duty of for'y-five percent, ad 

 valorem; the second thirty-five per Cfnt., and the third 

 tventy por cent, ad valorem. The mere etymology of tbe 

 word -manufactured." that is, something made by hano, might ad •" 

 mit of its application to a ship. And in toe case of a vessel, though 

 completed, brought into port on board of another vessel as merchan 

 dise. and not properly falling within the provisions or the intention 

 of the special acts impo-mg duties on ships and vessels I am not pre- 

 pared to say that the description of it as a "manufactured" article 

 under «ome of those dragnet clauses, though it miv be difficult to 

 say which, might not be sufficient to render it chargeable with duties 

 as an import •'mentioned" m the tariff act, as in the case of the 

 Madge, Treas. Deo.. 4.960. March 17, 1682. But in the ordinary use of 

 language, a vessel is no more "manufactured" than a house, or a 

 cathedral. Ships are "built," or ••constructed;" and those who build 

 them are known as "ship builders." not as ship manufacturers. 



Considering the fact that hundreds of objects are specifically 

 named in tbe tariff acts, many of them of but slight consequence in 

 comparison witb ships and ves-el«; and considering the promiuence 

 of ships and vessels as the chief means of all importation, that they 

 are so often presented to the attention of Congress, and that there is 

 not a tariff act but contains some allusion to them, it is not credible 

 that if it hid neen the intent of Coueress to make ships and vessels 

 coming to tbis country in the usual course ot navigation subject 

 either to soeeifie or qd valorem, duties, they would not have been 

 Tu» n ioned eo nomine in some of the' tariff schedules, and not left to 

 be eorered by such remote and far-fetched clauses as manufactures 

 of iron or wood, or ••manufactures not otherwise provided for." The 

 absence of apt words affords a strong presumption that vessels com- 

 ing here in the usual way are not included. 



3. The controlling fact, however, which accounts at once for the 

 absence of ships and vessels from tbe erpress provisions of the tariff 



come ard eo continually; merchandise to ba consumed on shore. 

 Merchandise, theref- 're, pays .duty on itsvslue but once, and once 

 for all. If vessels were dutiable, under th« same law on their whole 

 value at every entry into port, they would be speedily taxe 1 out of 

 existence, and navigation would become insupportable, "Vessels, 

 therefore, are taxable at a much lower rate, but payable at every 

 en'ry, or yearly. 



There is nothing in the act or 1890 so far as regards the qiestiou 

 under consideration, that in any way distinguishes it fr-un nrior 

 tariff acts. The words "articles imported." used in the act of 1899, 

 have been used in several previous acts; an 1 those words ha^e no 

 more ei tended meaning than the word '•merchandise" in th« earlier 

 acts, since the word merchandise includss -'chattels of every descrip- 

 tion capable of being imported." (R°v. St.. § 27t>fi ) 



The revenue act of July 14. 1882 (St at L , p. 543), well illustrates 

 the. above views. That act in its first fourteen sections imposed 

 duties on imported merchandise, etc. It provided also (do., p. 557) 

 for duties on manufactures in substantially the same terms as para- 

 graph 215 aud Section 1 of the act of 1890. The next sec ion imposed 

 duties on ships anu vessels f s follow-: 



"Section 15. Be it further enae'ed. that upon all sbip=, vessels or 

 steamers which shall be entered in anv custom house m the United 

 States from anyforeiam port or place, whether shios or vessels of 

 the United State's or b* longing wholly or in pirt to subjects of foreign 

 powers, there shali be imposed a tax or tonnage duty of 10 cents per 

 ton * * * in addition to any tonnage duty now imposel by law." 

 Here are ti e two classes of subjects, viz., "imported merchandise" 

 as one group, and "shios and vessels" as the other hronght side by 

 side in the sameact. Th* different duties aud the different modes of 

 imposing them on the two classes are clearly discriminated. ISTo one 

 would seriously contend that vessels liable to a tonnage duty under 

 Se-'tioti 15 of that act could be liable as an imported article to an ad- 

 di ional duty utider such general words in the prior sections as 

 "manufactures of iron." or "manufactures not otherwise provided 

 for." The manifest intent of Congress to provide indepen lently in 

 Section IS for the duties to be paid by ships and vessels, excludes the 

 prior sections from any application to whitever is cohered b the 

 latter. Similar provisions in the act of 1&90 cannot receive any dif- 

 ferent construction 



In the case of the United States v. A Chain Cable, 3 Sumner. 862. 

 where a chain cable had been bought in Liverpool by the toaster of 

 an American vessel to replace an old one worn out, and was landed 

 in Boston without a permit, and claimed to have become thereby for- 

 feited, Mr. Justice Story held that the article, though brought: in on 

 bouri the ship and so imported, was nevertheless to be treited as a 

 part of the ship and not as goods, wares or merchandise within the 

 meaning of tbe general revenue laws. So in the Gertrude, 3 Story, 

 6% Mr. Justice Story, affirming the decision of Ware, J , held thxt 

 the "tackle, apparel and furniture of a foreign vessel wrecked upon 

 our shores did not come withiu the meaning of the roeenue laws as 

 imported merchandise." 



But for the acts of Juu6 29. 1870 (Rev. St. Sec. 4316), and of June 19, 

 1886 (21 St. at L , p. 82. See. llj. there can be no question that this 

 yacht would lwve been required t~» pay tonnag-e duties like all other 

 Vessels comiug from a foreigu port. She is plainly within the special 

 statutes relating to duties on ships and vessels, and was, therefore, 

 not within the s-ope of the e°ne al tariff upon imported merchandise. 



By the acts of IS70 aud 1886 above referred to, Congress has ex 

 entpted such yacht*; not engaged in trade, from the payment of ton- 

 nage duties. The effect of this was not In any degree to extend the 

 scope of the tat iff act concerning imports, so as to make it applicable 

 where it was not applicable bafore. The plain intent of Congress 

 was to relieve such yachts from the prior burden of tonnage duty; 



