The Portland daily press., 1869-05-07
Terms $500 per anmasns, IN adranee.

ton Such has been the construction of tbe
same words in the Sd sec. of the act of 9th of
Jan'y., 1928, C. s, by the Supreme Court of
the United States. Such has been the urL
form construction in the District and Cifcuit
Courts of this Circuit in cases where
words of similar import have been drawn
into controversy, and shall therefore con-
tent myself with a bare expression of my
opinion on this point, without entering into
the reasons which cogently press itupon me-"
The ocean is the great common highway of
all nations, and is foreign to none; no nation
has any sole and exclusive jurisdiction over
II, and a vessel pursuing her voyage upon the
nigh seas, cannot be said to have been with
IN or subject to any foreign Jurisdiction. The
course and terminus of the voyage, the port
from which she sails and TO which she re-
turns, describes and controls the description
and character Of the voyage which she has
pursued.
Does 1t in any manner change the LEGAL
effect that in the present case this vessel ip
the course of her fishing voyage touched At
Port Mulgrave, N. s., for wood and water?
Does the fact that for this purpose and for
this alone she went within foreign jurisdic-
tion with this salt in her hold, not as cargo,
but as part of her necessary outfit, constitute
that port foreign port or place from which
the salt has been brought, so as TO incur LA
bility to a ;penalty, ii landed without a per-
nit? In my view, her touching at Port Null
grave, in the manner and for the purpose she
did, is entirely immaterial, and cannot affect
the question. 1t was strictly a port Of call
for the very necessaries of life,-wood and
water; and not for purposes OF trade and
commerce. This salt in any legal sense can
not be said to have been brought from Port
Mulgrave; it was never owned there, II was
not bought there, or there taken on board,
and for the purposes of commerce, was never
in reality within the jurisdiction of Nova
Scotia. Its connection with the vessel COM
menced when it was taken ON board at Port
land, and it accompanied and remained with
her, until it was actually used for curing the
iish on her return. The voyage. so far as this
article is in question began and terminated
at Portland; that was the place from whence
IL was IN part taken, and the only place from
which it was taken on the voyage, as / con-
slider.
The fact that this salt was on board the
vessel, whilst she was thus casually and
from necessity in provincial port, cannot, as
ithink, justify construction that it was
within the meaning OF this section, brought
from foreign port, any more than it would,
in case the vessel, whilst running through
the Straits of Canso, had been by the wind
or tide set so near the shore, as for a time to
be sailing in the waters of Cape Breton or
Nova Scotia. Could it with any reason be
urged in such case that permit was requi-
site because the vessel, with the salt on
board had thus sailed in provincial waters. OF
had ever been compelled to anchor for time
within short distance of the shore? No
one, think, would insist that a permit was
requisite in such case, and yet the fact
would be that the vessel and salt had been
within foreign jurisdiction.
suppose that invariably fishing vessels in
me Bay OF Chaleur, are obliged to touch for
wood and water at Isome place ON the shores
OF the Bay, or in that vicinity yet believe
that this is the first case in which the govern
ment has thought fit to contend before the
courts, that hereby such vessels had been TO
foreign place, so as to require permit for
landing anything then on board, or her car
60 which had been caught on the voyage, be-
cause in my view, II permit was necessary
for landing the salt, for the reason that It
was brought from Port Mulgrave; for a like
reason, similar permit was required for the
fish, which were then and there on board;
for the salt and fish were there at the same
time, in the vessel at Port Mulgrave, arriving
at and departing from there together.
In common parlance, this vessel would not
be described as having come froR Port Null
grave. She was from fishing cruise, per-
formed on the ocean, beginning and termi-
mating on Portland. Her touching at Port
Mulgrave, it must be remembered, was not
for the purposes of trade; the salt was not
taken there for any such object; but she was
in that port only for the moment, and for the
very:necessaries Of life. It Ewould never be
said that vessel from Cuba, with a cargo of
sugars, touching at Holmes Hole for orders
only had drought her cargo of sugars from
Holmes Hole, but all would admit that they
were brought from Cuba; and SO also Port
Mulgrave could never be understood or de-
scribed as the place from which this vessel
brought this salt, which was on board both
when she passed within and without the ju-
risdiction of Nova Scotia. II she had gone
there for the purposes of trade, with cargo
on board to dispose of; had there entered at
the Custom House and endeavored to sell her
cargo; and for want of market had been
obliged to return, with her outward cargo, it
might be Claimed that such cargo was
brought from such foreign port; but the rea-
son tails entirely when the vessel does not
make the port for trade but from necessity,
neither entering nor clearing at the Custom
House, remaining only long enough to re-
lieve such necessity, and having no cargo on
board in the usual and ordinary acceptation
OF the word.
III. Great doubts are entertained whether
what was.done with the salt after the arrival
at Portland, constituted an unloading or de-
livery within the fair construction of the 28th
section. In literal sense, it was unladen
from the vessel, and therefore itsmay be with
in the very letter of the act, and vet, not
within the spirit of the section OF the policy
of the law.
The salt having been required for the cur
ing of the fish, which were taken on this voy-
age, l think was not subject to duty. The
language of the act of 1886 being, "And upon
proof that said salt has been used in curing
fish, the duties on the same shall be remitted.0
such proof in the present case appears 10 have
been furnished in the manner required by the
regulations of the Secretary of the Treasury.
If this quantity of salt had been all used
in curing the fish, before the vessel arrived in
port, no doubt could be entertained that the
duties upon ii should have been remitted 50
likewise If after her arrival, when moored
alongside the wharf, the fish had been culled
and packed on the vessels deck, and the salt
thus used in the packing, the duties should
have been remitted, although the next mo-
ment the barrels of mackerel with the salt
yet dry in them, had been rolled ashore, and
in such condition that it could have been
removed in its dry state from the barrels of
fish if ii were desirable so to do. In such a
condition Of things 1t would still remain salt
when landed, although scattered through the
fish in the process of packing. If permit
was not requisite when landed in the barrels
with the mackerel, what real difference is
there, which the law should seize hold OF and
thereby subject a party to a penalty,
when one portion of the crew take on shore
the fish in a half cured state, and the balance
of the crew accompany them with the salt
for the purpose of completing the cure and
which is absolutely requisite, and Is then and
there used for that purpose and no other. 1t
was manifestly the spirit and purpose of The
act Of 1865, to authorize the remission OF the
duties on all salt necessarily required and
used in curing the fare of fish. And the law
certainly should not be so construed as to
subject party to apenalty for doing an act
on the wharf which would in all respects
have been entirely legal and justifable If It
had taken place yards distance on the yes
sells deck. The only consequence resulting
from such narrow construction would be, to
require all vessels, hereafter, to pack out on
deck instead of upon the wharf, which, on
account of the narrow space would be great
inconvenience, without profit or ADVANTAGE to
any one.
Nv impression is quite strong that Con-
eress never contemplated any such distinction
and that it should make no difference in fine
result, whether the salt and mackerel were
mixed indiscriminately together, or whether
they were entirely separate, when taken from
the vessel, it it appears that all the salt was
used in curing the fish. The principal thing
which is landed within the spirit of the act,
is the fish; the salt is merely secondary and
auxiliary, and not an independent landing, so
as to subject those concerned to penalty.
As Judge Story remarks in the case OF
"chain cable' Sumner, 365-'The goods,
wares and merchandise, within the provisions
of the 50th Sec of the act OF 1799, are such