CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
Two questions are involved in the merits of this case: First, whether this vessel was taxable under the tariff laws; second, whether the award of damages was justified by the law and the testimony.
1. A preliminary objection is made, however, by the appellee that the case is not properly before the court, because the mandate is not here, and because the case was in the District Court and was brought here by a writ addressed to a court which had lost jurisdiction of it before the writ had issued.
The fact that the mandate of the Circuit Court of Appeals to the District Court, affirming the decree of that court, had gone down, is immaterial. The transcript of the record is still in the Court of Appeals, and if a writ of certiorari can be issued at all after a final disposition of the case in that court, it could not be defeated by the issue of a mandate to the court below. That certiorari can issue, and, indeed, is ordinarily only issued, after a final decree in the Court of Appeals, was settled by this court in the American Construction Co. v. Jacksonville, Tampa & Key West Railway, 148 U.S. 372, 384, although it may be issued before, if this
court be of opinion that the facts of the case require an earlier interposition. The Three Friends, ante, 1.
The only question worthy of consideration in this connection is whether the writ of certiorari should not have been applied for more promptly. The decree sought to be reviewed was entered June 6, 1893; the petition for certiorari was not filed until April 16, 1894. The act does not fix the time within which application for a certiorari must be made. As the decree was entered June 6, immediately after this court had adjourned for the term, and as the application must be made to the court while in session, no fault is imputable to the Government in not making the application before the opening of the next term in October; and while we think such application should be made with reasonable promptness, as it was made during the term and within a year after the original decree, we think it was within the time. We do not think the party complaining is limited to the six months allowed by section eleven of the Court of Appeals act for suing out a writ of error from the Court of Appeals to review the judgment of the District or Circuit Court; and it would seem that he is, by analogy, entitled to the year within which, by section six, an appeal shall be taken or writ of error sued out from this court to review judgments or decrees of the Court of Appeals in cases where the losing party is entitled to such review.
2. Was The Conqueror dutiable under the tariff act of October 1, 1890? 26 Stat. 567. This act requires duties to be levied upon all "articles" imported from foreign countries and mentioned in schedules therein contained, none of which schedules mention ships or vessels eo nomine. An abstract furnished us of the corresponding clauses in all the principal tariff acts from 1789 to the present date shows that duties are laid either upon "articles," as in the present act, or upon "goods, wares and merchandise" -- words which have a similar meaning. Indeed, the words "articles" and "goods, wares and merchandise" seem to be used indiscriminately, and without any apparent purpose of distinguishing between them. While a vessel is an article of personal property, and may be
termed "goods, wares and merchandise," as distinguished from real estate, it is not within either class, as the words are ordinarily used. In all this class of cases, the meaning of the words, as used in the particular statute, must be gathered from the context and from the evident purpose of the act. Thus, in Palmer's Ship Building and Iron Co. v. Claytor, L.R. 4 Q.B. 209, it was held that a ship was not an "article" within the meaning of an act forbidding the employment of children to labor in the manufacture of articles, or parts of articles; but that an iron plate was an article of metal, even though used in shipbuilding, and the shaping of the plate was part of the manufacture.
Vessels certainly have not been treated as dutiable articles, but rather as the vehicles of such articles, and though foreign built and foreign owned, are never charged with duties when entering our ports, though every article upon them, that is not a part of the vessel or of its equipment or provisions, is subject to duty, unless expressly exempted by law. If this yacht had been brought here by a foreigner, it is not insisted that she would have been subject to duty. Indeed, she might be navigated between our ports for an unlimited time, provided only that she did not carry passengers or goods for hire. If she be dutiable at all, it must then be because she was bought by an American citizen. But why should this make her dutiable? She is not imported or taken into the country in the ordinary sense in which that term is used with reference to other articles, does not become commingled with the general mass of property, and is employed precisely as she might be legally employed by her foreign owners, or by an American citizen leasing her from such owner. Other articles are dutiable, not because they have been purchased, but because they are actually imported and become the subject of sale and commerce within the country. But if a yacht be dutiable when purchased, and only when purchased by an American citizen, we apply a test of dutiability that we apply to no other article, namely, the test of ownership.
Not only is there no mention of vessels, eo nomine, in the tariff acts, but there is no general description under which they
could be included except as manufactures of iron or wood. But it is only by straining the word far beyond its ordinary import, that we are able to apply the word "manufacture" to a seagoing, schooner-rigged, screw steamship, 182 1/2 feet long, nearly 25 feet wide, and of 372 tons burden. The term "manufacture" is as inapplicable to such a vessel as it would be to a block of brick or stone, erected in the heart of a great city. A ship is doubtless constructed of manufactured articles which, if imported separately, would be the subject of duty, but which put together in the form of a ship are taken out of the class of "manufactures," and become a vehicle for the importation of other articles. Considering the hundreds of foreign vessels which enter the ports of the United States every day, it is incredible that, if Congress had intended to include them in the tariff acts, it would not have made mention of them in terms more definite than that of "manufactures."
While there has been no direct adjudication upon the question of the taxability of foreign vessels under the tariff laws, it was held in United States v. A. Chain Cable, 2 Sumn. 362, that a chain cable was not taxable, which was purchased at Liverpool by the master of the ship Marathon to supply the place of a hempen cable which had become unseaworthy before the arrival of the ship at Liverpool, if the cable were purchased bona fide with the intention of using it for that ship, and not to sell as merchandise. It was said by Mr. Justice Story that the words "goods, wares and merchandise," used in the tariff act, included only such as were designed for sale, or to be applied to some use or object distinct from their bona fide appropriation to the use of the ship in which they are imported. And in The Gertrude, 2 Ware, 181; S.C. 3 Story, 68, it was held that the tackle, apparel and furniture of a foreign vessel, wrecked upon our coast, and landed and sold separately from the hull, were not goods, wares and merchandise imported into the United States within the meaning of the revenue laws. The opinion was delivered by Judge Ware, briefly affirmed on appeal to the Circuit Court by Mr. Justice Story, and the case put upon the ground that the rigging and apparel of the ship are a part of the ship, and therefore not
merchandise in any other sense of the word than that in which the ship herself is. "If," said he, "we look through the whole of the numerous acts of Congress laying duties on merchandise imported, as well as those regulating the collection of the same, we shall find they uniformly contemplate the cargo; they refer to articles having the quality of merchandise in the ordinary and most popular sense of the word. They refer also to goods intended to be introduced into the country for sale and consumption, or for the general purposes of commerce."
While neither of these cases is directly in point, each of them would probably have been differently decided, if the court had been of opinion that a foreign vessel arriving in this country and sold here, was the subject of duty.
The fact that, in a particular case, such as that of The Geneva, 20 Stat. 473, Congress may have seen fit to impose duties as a condition to the granting of an American registry to a foreign built steamboat, is fully met by a very large number of similar cases, in which no such requirement is made. In the following, taken from a single volume, 28 Stat., it appears that foreign built vessels were admitted to registry or nationalized without any such requirement: The Oneida, p. 43; The Goldsworthy, p. 216; The Astoria, p. 217; The Oceano, p. 219; The S. Oteri, p. 277; The Skudesnaes, p. 508; The Claribel and Athos, p. 625; the Empress, p. 626; The Linda and The Archer, p. 626; The James H. Hamlen, p. 643. Doubtless an examination would reveal an equally large number in other volumes. In fact the case of The Geneva seems to have been wholly exceptional. As bearing upon this, by the act of December 23, 1852, c. 4, 10 Stat. 149, reproduced in Rev. Stat. § 4136, the Secretary of the Treasury is authorized to "issue a register or enrolment for any vessel built in a foreign country, whenever such vessel shall be wrecked in the United States, and shall be purchased and repaired by a citizen of the United States, if it shall be proved to the satisfaction of the Secretary that the repairs put upon such vessel are equal to three fourths of the cost of the vessel when so repaired."
We do not undertake to say that the same rule applies to canoes, small boats, launches and other undocumented vessels,
which are not used, or are not capable of being used, as a means of transportation on water, as the word "vessel" is defined in Rev. Stat. § 3. While these vessels have a limited capacity for transportation, they are ordinarily used for purposes of pleasure, and are not considered of sufficient importance to require them to be entered at the custom house, or to be entitled to the special protection of the flag. They are treated like other similar vehicles used upon land, and there are reasons for saying that these boats, which do not ordinarily come of themselves into the country, but are imported or brought upon the decks of other vessels, are mere manufactures or other "articles," and are within the description of the tariff acts.
But the decisive objection to the taxability of vessels as imports is found in the fact that, from the foundation of the Government, vessels have been treated as sui generis, and subject to an entirely different set of laws and regulations from those applied to imported articles. By the very first act passed by Congress in 1789, subsequent to an act for administering oaths to its own members, a duty was laid upon "goods, wares and merchandise," imported into the United States, in which no mention whatever is made of ships or vessels; but by the next act, entitled "An act imposing duties on tonnage," a duty was imposed "on all ships or vessels entered in the United States" at the rate of six cents per ton upon all such as were built within the United States, and belonged to American citizens; of thirty cents per ton upon all such as should thereafter be built within the United States, belonging to subjects of foreign powers, and of fifty cents per ton upon all other ships or vessels, with a proviso that no American ship or vessel employed in the coasting trade or fisheries should pay tonnage more than once in any year. This distinction between "goods, wares and merchandise," and "ships or vessels," has been maintained ever since, although the amount of such duties has been repeatedly and sometimes radically changed. At the time of the arrival of The Conqueror, tonnage duties were imposed under the act of June 26, 1884, as amended by section eleven of the act of June 19, 1886, with a proviso that the
President of the United States might suspend the collection of them in certain specified cases. In addition thereto there was, by Rev. Stat. § 4225, a duty of fifty cents per ton, denominated "light money," levied and collected on all vessels not of the United States which might enter the ports of the United States; although, by § 4226, there was a provision that this tax should not be imposed upon any unregistered vessel "owned by citizens of the United States, and carrying a sea letter, or other regular document, issued from a custom house of the United States, proving the vessel to be American property." It would seem that, under this section and in virtue of the collector's certificate to her bill of sale, stating that her owner was an American citizen, The Conqueror would not thereafter be subject to the payment of light money. The Miranda, 1 U.S. App. 228.
There is no provision of law preventing foreign built vessels from being purchased, owned and navigated by citizens of the United States, although they are not entitled to registry, or to enrolment and license as American vessels, ...