THE· CARaO EX LADY ESSEX.
765
sole question presented in case is whether such a fee,. under these circumstances, should enter into the dutiable value of the importation. Section 2906 of the Revised Statutes provides that, when an ad 'Valorem duty is imposed on any imported merchandise, the collector shall cause the actual market value or wholesale price thereof at the period of the exportation to the United States in the principal markets of the country from which the sa.me has been imported to be appraised, and such appraised \'alue shall be considered the value upon which the duty shall be assessed. The machinery in question was subject to a duty ad valorem, and, if the collector is right, his justification must be found under this provision of the law. The question, therefore, which arises is whether, under this statute, the wholesale price or market value of a machine in England includes a fee paid by a purchaser from the importer in this country to the owners of patents applicable to parts of the machine for the right to use the machine in the United States. It is agreed that in the purchase by the defendant in England of the machine the royalty fee formed no part of the purchase price paid by him. It is difficult, therefore, to see how it can be held to be a part of the market value or wholesale price there, simply because the purchaser from the defendant was to pay a royalty fee for its nse in this country. Suppose a machine had been purchased in England for use in some country where there was no patent upon it, could it be held that the royahy fee exacted for its use in the conntry where it was patented should be added in estimating the market price? A royalty fee paid for the right to make and the right to sell might be considered as a part of the market value for the reason that it is a part of the cost to the maker or vendor, and therefore becomes a factor in the selling price of the article; but a fee paid for use, which in this case it is agreed did not form any part of the price paid by the defendant, cannot, it seems to me, be any part of the wholesale price or market value of' the import in the country from which it was imported, because it is a fee accruing only after manufacture and sale in thatcountry, and payable after importation into the United States. Judgment for defendant.
THE CARGO EX LADY ESSEX.
(District Court, E. D. Michigan.
July 15, 1889.) VESSEL
1.
OUSTOMS DU'rIES- UNLOADING ASHORE.
OARGO WITHOUT PERMIT -
A vessel which has been driven ashore bv stress of weather has not" arrived" within the limits of the collection district, within the meaning of Rev. St. U. S. Ii 2867, and the unlading of her cargo without authority of the customs officer does not subject it to forfeiture.
2.
SAME-FAII,URE TO GIVE NOTICE.
necessary does not authorize a forfeiture of the cargo.
The failure to give notice of the contingency which makes such unlading
766
FEDERAL REPORTER,
.vol.. 39. . ." ". .
a.
SAME-FoRFEITURE-AcT OF TRESPASSER.
A forfeiture of goods for a violation of the revenue laws will not be imposed unless the owner of such goods or'hisagent has been guilty of an infraction of such laws. The act of a mere trespasser, or of one having no interest in the goods, will not have that effect. . . . . .
(Syllabuaby the Court.)
In Admiralty. On exceptions to libel on information. . This was an information against 8,000 feet of lumber., being the cargo ,of the schooner. Lady Essex, a forfeiture of which was claimed upon two grounds: Jilrst, that the lumber had been unladen from the schooner Victor without a permit; second, that this lumber had been fraudulently .and knowingly imported. into the United States without payment of .duties, and contrary to)aw.: The information averred, in su bstance,. that the schooner Victor, laden with a large quantity of lumber, an4 bound from a Canadian to an American port, arrived within the limits of the collection district of Port Huron, and was there strandeiil; that 8,000 feet of her cargo were .sold to the master of the schooner Lady Essex, l;tvd V"ere unladen from the Victor upon the Essex .before th,e Victor had been duly authorized by the customs officers to unload, contrary to, Rev. St. § 2867; that although ,this might have been a case of unavoidable accident, necessity, or stress ()f weather, yet neither the. Ill/lster .of the Victor, nor the master of the .Essex, gave notice to collector or. any officers of customs of the unloading of such lumber, nor did .the master of the Victor comply with .any of the provisions of section 2867; that the lumber so unladen was received upon the Lady Essex with the consent and procurement of her master, although the notice and proof required had not been given; that the said lumber was subject to a duty of two dollars per thousand, yet the master of the Lady Essex, knowing that such duty had not been paid, fraudulently and knowingly assisted in importing such lumber into the United States, and concealed such lumber in the hold of his vessel, proceeding from where the Victor was stranded to Mt. Clemens, where he began to unload his cargo without reporting to the customs that he had such lumber on his vessel, although he knew the duty had not been paid; and that the same was thus imported contrary to law. The information prayed for a forfeiture of the Lady Essex and of her ·cargo. The owner of the cargo excepted to the infornwtion upon the ground that it set forth no cause of action against his property. C. P. Black, U. S. Dist. Atty. H. H. Swan, for claimant. BROWN, J. By Rev. St. § 2867, if after the arrival of any vesse1 within the limits of a collection district any part of her cargo shall be unladen without authority of a customs officer, the master in command shall be liable to a penalty of a thousand dollars, and the merchandise so unladen shall be forfeited, except in case of unavoidable accident, necessity, or stress of weather. In such case, it is made the duty of the master, or other person in command, to make proof upon oath before
TIlE CARGO EX LADY ESSEX.
761
the customs officer of such accident, necessity, or distress; aud by section 2868, if any merchandise so unladen shall be put or received into any other vessel, except in the case of such accident, necessity, or dist.ress, to be so notified and proved, the master of any such vessel, in which the merchandise shall be so put and received, sha:! be liable to a penalty, and tile vessel in which they shall be so put shall be forfeited. It is clear that there was no arrival of the Victor within the meaning of section 2867, since "a vessel is not considered to arrive so as to be regarded as importing her cargo unless she arrives within a port, and with an intent to enter her cargo." Harrison v. Vose, 9 How. 381. It is not enough that she comes within the limits of the district. U. S. v. Vowell, 5 Cranch, 372. So it is clear that goods taken and unloaded from a foreign vessel wrecked upon the coast are not to a for3 Story, 68; feiture because landed without a permit. The Peisch v. Ware, 4 Cranch, 347; The Concord, 9 Cranch, 387; }vlerritt v. Merchandise, 30 Fed. Rep. 195. The stranding of the Victor made a clear case of unavoidable accident, necessity, or stress of weather, within the meaning of this section, and the only irregularity in the proceeding was the failure to give notice to the customs authorities of such contingency. No forfeiture, however, is imposed for the failure to give such notice, though it would seem from the following section that the vessel receiving such lumber from the stranded vessel incurs the penalty of forfeiture, and the master of such vessel a penalty of treble the value of the merchandise. 'Vhile it is possible that section 2867 might be constrned by inference to work a forfeiture of the cargo where no notice has been given of accidf:nt, necessity, or distress, stm although the statute may not be subject to the strict construction of a penal one, a forfeiture ought not to be imposed unless the language will bear no other reasonable consL·uotion. Sixty P.ipes of Brandy, 10 Wheat. 421; U. S. v. Carr, 8 How. 1; U. S. v. Coils of Cordage, Baldw. 502. So far as a forfeiture is claimed by reason of the goods having been smuggled into the United States at Mount Clemens, or, in the language of the statute, having been knowingly and willfully imported into the United States, contrary to law, the case depends upon different considerations. The authorities are direct to the proposition that the forfeiture of goods for violation of the revenue laws will not be imposed unless the owner of such goods, or his agent, has been guilty of an infraction of sueh laws. Peisch v. Ware, 4 Cranch, 347, 364; The Waterloo, Blatchf. &H. 120; 651 Chests of Tea v. U. S., 1 Paine, 507; U. S. v. Bags of Kainit, 37 Fed. Rep. 326. It is clear that if goods be stolen from the owner, or if a person has obtained possession of them fraudulently, or without authority, no act. of his can forfeit them as against the true owner. Section 16 of the act of 1874 declares in express terms, that, in of this description, it is the duty of the judge to submit to the jury, as a separate and distinct proposition, wheother the alleged actH were done with an actual intention to defraud the United States; or if such issues be tried by the court with-
768
vol. 39.
out a jury it shall be the duty of the court to pass upon and decide such proposition as a distinct and separate finding of fact. This language must apply to the owner of the goods, or his authorized agents, and not to a mere trespasser. . It is claimed in this case that the master of the Victor had no authority to sell this lumber to the master. of the Lady Essex, without communicating with its owner. And in this connection, counsel relied upon the case of Cargo of the Bridgewater, 11 Chi. Leg, N, 327, and upon Navigation Co. v. Morse, L, R. 4 P. C, 222, If it should turn out that this lu'nber not belong to the master of the Victor, and that he made sale of it without commun; eating with the owner, and without his knowledge or consent, it would follow that the purchaser took no title; and I see no escape from the conclusion that he could do no act with respect to the lum ber to the prejudice of its real owner. But the question in this case is not what are the facts, but whether the information avers a cause of forfeiture. In setting forth a delivery and sale of the lumber to the master of the Lady Essex, I think I am bound to presume that the sale took place under such circumstances as to constitute it a lcgal sale, and that the master of the Victor should be presumed to . have had authority to make such sale. It results, then, that this defense should be set up by answel', and made the subject of proof upon {he hearing. The demurrer is therefore sustained as to the first ground of forfeiture, and overruled as to the second.
UNITED STATES V. LEHMAN.
(District Court, E. D, Missouri, E. D. September 5, 1889.) 1, INDICTMENT-FoRM AND SUFFICIENCY.
An indictment which states facts constituting an offense under a certain statute and concludes with the averment that the acts alleged to have been committed were "contrary to thc form of the statutes.," is not objl!ctionable because it also alleges that defendant thereby a. <;ertam named crime, while the statute does not declare the offense it prohibIts to be that crime, as the allegation is surplusage.
PERJURy-NATURALIZATION PROCEiEDINGS.
Rev. St. U. S. § 5424, which makes it an offense for any person applying to become a citizen or appearing as a witness for such person, to "falsely make. forge, or any oath," etc.. applies to written oaths, not to false swearing in open court, in a naturalization proceeding by a Wltne.ss for the applicall1t, as the latter offense is punishable exculsively tinder sectIOn 5395. U. S. § 5425, making anyone guilty of a felony who "obtains. accepts or receives any certificate of citizembip. known to such person to have been 'procured by applies to the ac<;ept.ance such a obtaioAd. by fraud practIced on, the court which issued the th,ereo.f. and not simply to the acceptance of a fraudulent certificate outstandlDg III the hands of third persons.
3.