The Portland daily press., 1870-07-28

AiC uldslSI Oulu luS NOA
tanned just and true account OF all the
goods on board the schooner. He also pre-
sented at the same time the certificate OF
Charles Il. Mcdonnell as importer certhyihS
under oath that he landed at Port MulSfa'e;
Nova Scotia, for transhipment to the pol, Or
Deer Isle in the United States, one huhaieu
barrels of mackerel and that the same were
caught in said American vessel by American
fishermen and shipped TO the SAID port OF
Beer Isle by the said schooner
Amended TO the document is the certificate
Of Vincent j. Wallace, dated October Is.
1866. that the same was signed and declared
before him as controller OF the customs Ac-
companying the certificate there was also the
sworn statement of two persons representing
themselves as merchants at that port, in
which they declare that the statements of
Mcdonnell in his certificate are just and true
and worthy of full faith and credit. Warren,
the Deputy Collector at Deer Isle teStries
NAT the master of the schooner came to his
Office October 22d, 1866, and filed with him
&he aforementioned certificates and entered
his vessel, that he "made the entry of the
100 barrels of mackerel before me-" that he
gave bin no written permit but thinks that
he gave him verbal one and that the master
asked him ii 1t was all right and that he told
nm yes, go ahead and land your mackerel."
On cross examination the witness stated that
ne ala II ot Inspect the cargo nor send any one
to inspect 1t and that he had no knowledge of
the matter except what he derived from the
report OF the master and from the papers he
nied with him at the time. Beyond doubt
the evidence shows that due report was made
OF the arrival OF the schooner at the port OF
Deer Isle and that she brought as cargo 10U
barrels of mackcrel but the vessel was
never boarded by an officer of the customs,
nor was her cargo ever inspected in
any way or to any extent. Informed
as the Deputy Collector was, that the macker-
ell were American caught and that they had
been transshipped from an American vessel, he
gave the matter no attention except to say to
the master, in answer to his inquiry, that it
was all right and thathe might land the goods
Viewed in the light OF these facts, as the case
must be, several questions arise, which must
be separately answered. /. Whether the goods
were or were not dutiable, because il they
were dutiable it has already been determined
that they could not be lawfully unladen or de-
llvered without written permit. 2. If the
mackerel were not dutiable, whether a verbal
permit was or was not sufficient to save the
goods and the vessel from forfeiture.
3.-Whether the verbal assent OF the depu-
ty collector to the landing and delivery of the
mackerel constitutes q defence to the charge
of forfeiture. Influenced by the representa-
tons OF the master that the mackerel were
American caught, and believing that q written
permit was not necessary for the unlading
and delivery OF goods not dutiable, the
deputy collector admitted the goods to entry
duty free, and consented, in the words before
mentioned, that they might be unladen and
delivered without being inspected, and with
out any written permit. They were supposed
to have been caught by the crew of the Olivia
Marla an American vessel, and to have been
the property OF her master, Chas. r. Mcdonnell,
but the District Court found that they were
British mackerel, the property of one John
Moore, resident OF Port Mulgrave, and that
the same were exported from that port and
that the mackerel were subject to duty under
the revenue laws OF the United States. Ex-
amined in detail as the testimony was by the
District Judge as appears by his opinion, it
does NOS seem to be necessary to reproduce
the statements of the respective witnesses
Suthce 1t to say that no doubt is entertained
that the weight of the testimony, as then ex-
hibited, fully justified the conclusion formed
by the District Judge. Some conflict of state
ment existed in the testimony, but the careful
analysis OF 1t made by the District Judge
showed conclusively that the mackerel were
British caught and that the representations of
the master were incorrect. Much additional
testimony has been furnished since the ap-
peal, and it must be admitted that the new
testimony intensilies the conflict, but TEL
court here is OF the opinion that the macke;rel
were British caught and that they were, ex
ported from Port Mulgrave as the property of
John Moore. 2. Concede the fact to
be otherwise still the court is of the
opinion that the mackerel even under the
circumstances assumed by the appellants could
not be lawfully unladen and delivered with
out written permit. Unavoidable accident,
necessity, or stress Of weather. are not set
up in this case, nor is there any evil
dence exhibited to support any such
defence. Authorities founded upon The ex-
ceptions in the twenty-sevenih section
OF the collection act, have no application in
this case, as the unlading and delivery Of the |
goods were voluntary and Intentional and
Without any unavoidable accident, necessity. l
or stress of weather. l Statute az Large 64S. !
U. ,. V. Hayward Gall 4S5, peich v. Ware
Gran. 35S. Forfeiture of property, it is said 1
IS not incurred under the revenue laws unless j
Inc acls OF the mastec CT owaer ATTENDED
with fraud. misconduct Or negligence, and i,
Is insisted that the owne. is not to suffer for
the fraud, miscond'.ct, or negligence of the
revenue oIncer a. p. which he did not partici-
p pOMeo FRAU is not imputed to the deputy
collector but it is clear that he was guilty OF
neg .gence and omission of duty so culpable
as to amount to misconduct, ard it is clear to
a demonstration that the master voluntarily
participated in that misconduct 651 Chest oil
Tea Paine 400. Only 100 barrels of mackerel
were placed on the manifest and the master
voluntarily broke bulk and landed the cargo
before the same had been inspected and with
out any written permit. Examined il view
OF these suggestions, it IS apparent that the
case before the court depends upon the geneT-
al question whether goods not dutiable may
be lawfully unladen and delivered without
written permit, aud that it does not fall within
any Of the exceptions contained in the col
lection act, or any such as are recognized as
valid by the decisions of the Federal Courts.
Igl ORANGE of the law furnishes no excuse nor
c ) it constitute any valid defense that the
deputy collector was as unintormed in that
behalf as the master. U. S. o. Lyman l Ma
son 504. Unquestionably the permit required
by the fiftieth section Of the collection act
is the permit, the form of which is given in
the preceding section of the same act, and
nothing can be more comprehensive or ex-
plicit than is the language OF that requirement
in which it IS provided that no goods brought
in any ship or vessel shall be unladen or de-
livered from such ship or vessel at any time
within the United States without a permit
from the collector and naval officer if any,
for such unlading CT delivery. Had Congress
intended that goods not dutiable should be
unladen and delivered without such permit
as that described in the forty-nnth section
OF the collection act it must be presumed
that some evidence of such an inten-
ton would be found in some part
Of the act, but nothing of the kind
appears. Free goods are by that
form to be included in the permit, as well as
such as are dutiable. Reference is made by
the appellants to sections forty five, forty.six
and torty-seven, as affording such evidence,
but il is quite clear that they afford no sup
"ort to the proposition. Merchandise free of
and enrcaauired to be placed On The manifest
and written permit rs that subject to duty,
hVery OF such is jast as essentflipg, and de-
against smuggling AID protect the public in
ierest as where the importation is subiec. to
Ill. Innocence of intention will not. anv
more than ignorance of the law, afford de-.
fence to the master or owner of a vessel far =
violation of the prohibition contained in the
hitleth section CT the collection act. They
are forbidden to unlade or deliver imporfed
goods brought into the United States without
sne required permit, and the proyi-
sion IS that ii they do and the goods
50 unladen and delivered amount to
Jour hundred dollars, the vessel, tackle. an
pare, and furniture, shall be subject to seiz
ure and forfeiture
Decree affirmed with costs.