Herald of the times. [volume] (Newport, R.I.) 1830-1846, 1840-01-09
OPINION OF JUDGE STORY,
IN relation to rssstis Engaged in the Whale
Eishtru.

OPINION OF JUDGE STORY,
IN relation to vessels engaged in the Whale
Fishery.
From the Boston Daily Advertiser OF saturday. Jan
In the United States Circuit Court on
Saturday last, Judge STORY delivered
the following opinion in the case Fred
erick C.. Taber and others, IN error v. The
tniied Staies. This case was reported
by us at the time Of the hearing IN the
District Court. Judge DAVIS having
decided it in favor Of the United States,
il was taken to the Circuit Court upon
exceptions 10 his decision, and was ar
gued several weeks since by
CLIFFoRp, Of New Bedford, for the
% Plaintiffs in error, and by
MUS, District Attorney, for the
United States.
The points relied upon in the argu-
meni, will sufficiently appear IN the
opinion Of the Court, which, as the de-
cislon is Of great Importance 10 those
engaged in the Whale Fishery, we pub
lish entire. 1t will be seen that the
practice which has been so long pursued
acting a bond for the returns Of seamen
in vessels engaged in the Whale Fish
cries is not authorized by law and tn at
the penalties Of these bonds, which have
been palu to the Government in numer-
GUS instances, cannot he recovered.
SToaY, J. This is the case Of a writ
Of error TO n judgment of the District
Court Of Massachusetts upon bond
The case came before the District Court
upon a statement Of facts, upon which
the learned Judge pronounced an opin-
ion, that the bond was valid and obliga-
tory, and the United States were entitled
10 Judgment. The statement of facts is
ns follows:
"This is an action of debt upon Bond
"gven by the defendants to the Collector of
"the Customs for the District of New Bedford,
"which is in the case, and may be referred
"to. The defendants are the master and
"ngent Of the ship Isabella of FairhaveD. q
vessel engaged in the whale Fishery. Al
"the time of the execution Of the Bond re.
"fcrred 10, the ship Isabella was fitted for
"whang voyage, and the master, upon the
"reqnisition Of the Collector, in order to OBJ.
"tain his clearance for said voyage, made out
"nnd presented to the Collector the Descrip.
"tive List Of his crew. certified copy Of
"whch Is in the case, and may be referred to-
"The Collector, thereupon, knowing that
"sald ship was about to proceed upon a
"voyage in the whale fishery took the Bond
"npon which this action is founded. The
"ship was registered vessel, and had always
sheen employed in the whale fishery.
"'rhe said ship being furnished with the
"papers aforesaid as registered vessel. pro.
"ceedrd upon her said voyage on the % day
"Nrw Bedford on the Both Of August, 1898.
'wiih cargo of sperm oil, obtained during
"the voyage. During her absencs she was
"empoy"d exclusively in the whale fishery,
touching at such ports and places only as
"nre usual in the prosec ution Of the fisheries
"ior supplies, and during said voyage was not
"engaged in any foreign trade.
'If upon this state Of facts the Court should
"bc of opinion that the Collector was author.
"7cd by law to take the Bond aforesaid, judg.
"neni is to be entered ngainst the defendants,
"ior the amount of the penalty. If the Court
"should be Of opinion that the defendant
"were not required by law to execute said
"Dond, in order to enable said ship to pro.
"cecd upon the voyage aforesaid. judgment
"is TO be entered for the defendants. Either
"pariy may except to the decision of the
"District Judge, and may carry their case 10
the Circuit Court upon the foregoing state.
"mcnt of facts
COLBY and CLIFFORD, for defendants.
"JoHS MILLs. Dist. Atty, for the y. 8.
january %. 1899"
The act Of 1903, ch. 26, provides in
the hrst section that
Before q clearance be granted to any yes +.
"sel bound on a foreign voyage, the master
"Ihereof shall deliver to the Collector Of the
"Cust"ms, lis, containing the names, places
''of birth and residence, and description of
"the persons who compose his ships company.
"to which list the oath or affirma ton Of the
"csptln shall be annexed, &c. &c.-and the
"sald Collector shall deliver him certified
";opy thereof, DC. &c.-and the master sha II
"moreover enter into bond with sufficient
"surety in the sum Of four hundred dollars.
"that he shall deliver the aforesaid certified
"copy to the first boarding officer at the first
sport in the United States, at which he shall
"arrive on his return thereto, and then and
there produce the persons named therein,
Ito the said boarding officer. &c. &c." with
other special provisions and exceptions whlc h
1t is unnecessary to recite.
In the present case, the requisitions
Of the act have not been complied with !;
and it is insisted on behalf of the United
States, that the bond is forfeited thereby
On the other hand, it is insisted on be-
half Of the plaintiffs error, (the original
deiendsnts,) that the bond itself is
mere nullmy and not by law required to
he given by ships engaged in whaling
voyages. And the main question, there
fore. -, whether a ship engaged exclu-
siely in whaling voy age is, within the
descriptive words and sense Of the act
of 1908, rh. SO, ga vessel bound on
foreign voyage" If she is not, then
am ot opinion that no action can be main
tanned on the present bond, as it seeks
:" 'n'erce supposed Statute duty and
IL IN the nature of u penalty, and has
been exaricd by the officers Of the Co
v"rnment under n mistake, as well Of
iheIr duty ~ of law, and that the judp-
mebt ought io br reversed.
" - clear, that IL has been for n long
prr'"d the practice of the Custom house