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OPINIONS

OP

HON. JOHN NELSON, OF MARYLAND

APPOINTED JULY 1, 1843.

OBLIGATIONS OF SHIP-MASTERS TO BRING HOME DESTITUTE SEAMEN.

The act of 1803, requiring masters and commanders of vessels belonging to citizens of the

United States, and bound to some port of the same, to take, at the request of the consul, destitute seamen on board, and to transport them to the port of the United States to which such vessels may be bound, is limited to such vessels as shall be bound from the port where the request is made, direct to some port of the United States. To require all American vessels in foreign ports, whether bound directly to some port of the

United States or not, to receive destitute seamen, would be in many cases very oppressive upon masters and owners.

ATTORNEY GENERAL'S OFFICE,

July 10, 1843. SIR: I have carefully examined and considered the provisions of the act of the 28th of February, 1803, and the letter of the United States consul åt Valparaiso, respecting the refusal of Captain Theodore Perry, master of the brig “Philip Hone,” to receive on board of said brig two destitute American seamen to be conveyed to the United States, transmitted to me on the 8th instant, upon which you desire my opinion-whether, first, it is the intention of the law that masters of 'vessels should be required to transport destitute American seamen, as provided by said act, only when such vessels are bound direct to some port of the United States ? and, secondly, whether, under circumstances such as those attending the refusal of Captain Perry, they are not under an obligation to comply with the consul's request?

The 4th section of the act of 1803 was designed to supply the 7th section of the act of 1792, ch. 94, to provide a compensation to masters who should be required to perform the duties it imposes, which the act of 1792 did not afford, and to fortify the sanction by which it was to be enforced, by an increase of the penalty demanded for its violation. The only other act of Congress relating to the subject is that of 1811, ch. 95, which provides for the allowance by the Comptroller in certain cases of additional compensation.

I do not find that these provisions have been at any time the subject of judicial examination; the answers to your inquiries must, therefore, be sought in the terms of the laws referred to. These I think susceptible of but one interpretation. The language of the act of 1803, borrowed from that of 1792, is, that all masters and commanders of vessels belong. ing to citizens of the United States, and bound to some port of the same, are required and enjoined to take such mariners or seamen on board of their ships or vessels at the request of the said consuls,&c., and to trans.

But the pro

port them to the port of the United States to which such ships or vessels may be bound, &c. The act does not impose the duty of transportation upon every American vessel found in a foreign port. For obvious reasons, such a requirement might, under many circumstances, operate the most oppressive inconvenience upon masters and owners. vision is limited in its application to such vessels found in a foreign port as shall belong to citizens of the United States, and as shall be bound to some port thereof. Bound whence? From the port at which such vessel may be found—not from a port to which she may be first bound—and thence to some port of the United States. Such a construction would apply the provisions of the act to every vessel belonging to citizens of the United States wherever bound, if destined ultimately to return home.

I am of opinion, therefore, that the act of 1803 does not require that masters of vessels should transport destitute American seamen, except in cases in which such vessels are bound direct to some port of the United States.

The second inquiry, as to the particular case of Captain Perry and the extent of his obligations, it is not easy satisfactorily to answer, because of the defect in the information upon which it is suggested. The circumstances connected with his refusal are so generally stated, as to render it difficult to determine whether the voyage to Coquimbo was merely colorable or contemplated in good faith, and whether it was an intermedia e port at which the vessel was to touch or call, or a port of bona fide destination. It is quite clear that in the one case the duty of the master would have been to transport the seamen; in the other, if my answer to your first question be right, the law imposed on him no such obligation.

Under all the circumstances of the case, I would respectfully suggest that the transaction offers an occasion which may be advantageously embraced by an appeal to the judicial department of the government to settle ihe construction of a law, upon the rigid enforcement of which many and tmportant interests depend. I have the honor to be, sir, your obedient servant,

JOHN NELSON, Hon. A. P UPSHUR,

Secretary of State.

ACCEPTANCE OF POST OFFICE BONDS.

It is not material whether bonds taken under the provisions of the 37th section of the act of

the 20 July, 1836, are accepted in the mode suggested by the Auditor in his communication of the 10th of May, or in that which, for greater convenience, has been adopted by the

Postmaster General; no form being prescribed by the act. For the security of the sureties bound in the previous obligation, the date of the acceptance

should be endorsed on the bond; yet the parties to the new bond are bound by the acceplance in fact of their bond by the Postmaster General, and this acceptance may be shown

as any other fact is required to be. Opinions of the court governing the question may be found in 12 Wheaton's Reports, page 64.

ATTORNEY GENERAL'S OFFICE,

July 12, 1843. SIR: I do not think it is at all material, whether bonds taken under the provisions of the 37th section of the act of the 20 July, 1836, are accepted

in the mode suggested by the Auditor in his communication of the 10th of May, or in that which, for greater convenience, you have adopted. The act itself prescribes no form; nor does it even require that the acceptance should be evidenced by writing. The date of the acceptance is to be endorsed on the bond for the security of those bound as sureties in the previous obligation. But as against the parties to the new bond they are bound by the acceptance, in fact, of the security by the Postmaster General. This acceptance may be shown in various modes, precisely as any other fact may be proved.

The receipt of the instrument, its endorsement, its being filed among the archives of the department, or its record, &c., may be invoked as evidence of its acceptance by the officer authorized to require it. The more obvious and ordinary mode of evidencing this fact, it is true, is by the signature of the officer authorized to act; but it is by no means indispensable. The abbreviation employed by you, however, is, in legal contemplation, your signature, if used for that purpose; and if in any case it should become material to establish it by evidence, the same testimony would avail as would suffice to verify your name written out at length. The principles governing the question you will find very clearly stated in the opinion of the court in the case of the Bank of the United States against Dandridge, 12 Wheat. Reports, page 64. I return you, herewith, the papers accompanying your communication, and am, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. C. A. WICKLIFFE,

Postmaster General.

EMPLOYMENT OF FOREIGN VESSELS IN THE COASTING TRADE.

Foreign vessels, owned wholly by citizens of the United States, may be lawfully engaged in

the coasting trade; but the cargoes must consist of domestic goods, other than distilled

spirits. And such trade is legitimate in vessels owned wholly by citizens of the United States, whether

they have been registered, enrolled, licensed, or recorded, or not. The terms upon which they may be employed, however, are different where they have been

registered, &c., from those of vessels which are not; but, subject to these terms, the right to

trade is as clear in the one case as the other. But subjects of foreign powers are, by the act of 1817, incompetent to import any goods,

wares, or merchandise from one port of the United States to another, in any vessel of which he may be the owner, in whole or in part; yet citizens of the United States are untouched by the act, and left to the enjoyment of the privileges conferred by the acts of 1792 and

1193. The only liability incurred by foreign-built vessels wholly owned by citizens, employed in

trade from port to port in the United States, is that of paying the tonnage duties chargeable upon foreign vessels. There can be no distinction made between the towing of vessels carrying merchandise and the carrying of the same.

ATTORNEY GENERAL'S OFFICE,

July 20, 1843. Sir: I have read and considered the letter of William F. Haille, the collector of the district of Champlain, and the opinion of the Solicitor of the Treasury thereon, transmitted to me with your communication of the 12th instant, upon which you propose for my examination the ques. tions following: “ 1st. Can a foreign-built vessel, purchased and owned

wholly by citizens of the United States be lawfully engaged in trading or carrying merchandise, either foreign or domestic, or passengers, from district to district or port to port in the United States--such vessel being prohibited by law from the privilege of enrolment and license to carry on the coasting trade? 2d. What liabilities attach to such vessel so em ployed ? 3d. Can there be a legal distinction drawn between the tow. ing of vessels carrying merchandise, or passengers, and carrying the same, or trading, within the meaning and intent of the 6th section of the enrolling and licensing act of the 18th of February, 1793 ?":

Upon the first question, I am of opinion that a foreign-built vessel, purchased and owned wholly by citizens of the United States, may be law. fully engaged in trading or carrying merchandise or passengers from districi to district, or from port to port, in the United States, with the quali. fications that the merchandise so carried shall consist of domestic goods, and shall not embrace distilled spirits. There is nothing in the acts of Congress referred to by the Solicitor of the Treasury, or in any other act, in that of 1792, ch. 45, or that of 1793, ch. 52, or that of 1817, ch. 204—to interdict such trade; on the contrary, all their provisions legitimate it. To justify the employment, by citizens of the United States, of vessels wholly owned by them, in the coasting trade, it is not indispensa. bly necessary that they should be either registered, enrolled, licensed, or recorded.

The terms upon which they may be employed are essentially different in cases in which they are so registered, enrolled, &c., from those in which they are not; but, subject to these terms, the right to trade is as clear under the laws of the United States in the one class of cases as the other.

A foreign-built vessel, purchased and owned wholly by citizens of the United States, cannot be enrolled, licensed, or recorded; but, subject 10 that disability, it may be rightfully employed, precisely in the same manner as domestic-built vessels owned by citizens, and which from any cause may not be registered, enrolled, licensed, or recorded.

The act of 1817, (ch. 204, sec. 4,) referred to by the Solicitor in his opinion, does not, as I think, apply to the subject under consideration. It relates exclusively to vessels belonging wholly or in part to a subject of any foreign power, without reference to the inquiry whether they be American or foregn-built vessels. A subject of any foreign power, under this provision, is incompetent to import any goods, wares, or merchandise from one port of the United States to another port of the United States in any vessel of which he may be the owner in whole or in part; but, a citizen of the United States, the bona fide owner of any vessel, wheresoever built, is untouched by it, and left to the enjoyment of the privileges conferred by the acts of 1792 and 1793.

These privileges, so far as regards unlicensed and unenrolled vessels employed in the coasting trade, are limited, by the 6th section of the act of 1793, 10 the trade in domestic goods, other than distilled spirits.

Upon the second question, I ain of opinion that the only liability in. curred by a foreign built vessel, wholly owned by citizens of the United States, employed in the trade, within authorized limits, from district to district or from port to port in the United Sates, is that of paying the tonnage duties chargeable upon foreign vessels. ' A trade in foreign merchandise or in distilled spirits, inhibited by the terms of the 6th section

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