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they were concealed, the duties not having been paid or secured.

The removal of the wines and spirits without marks and certificates, is clearly within the letter of the law. The power to remit or mitigate the forfeiture, can only be exercised by the secretary of the treasury.

*It is not necessary that Peisch and others should have been privy to the removal. It is wholly unimportant who removes the goods. The United States look only to the thing itself. The proceeding is in rem. If the unlawful act be done even by a stranger, the goods are forfeited. The revenue laws are to be construed strictly according to their letter. 4 Dall. 28. Priestman v. United States.

There is no difference between a careless and a fraudulent omission of duty. Peters's Rep. 448.

The offer to pay the duties was illusory; the collector could not receive them.

Salvage goods are liable to duties, if intended for importation into this country. The case of Shepherd v. Gosnold, Vaughan, 166. was of wreck on shore, not of floating wreck; and the goods saved were not intended for importation. 6 Bac. Abr. 280, 281. (Gwill. ed.) 1 Peters, 45. 47. 62. In the case of The Blaireau, in this court, (ante, vol. 2. p. 240.) there was no question as to the duties; the goods were not intended for importation.(a)

If, then, the goods are forfeited to the United States by the unlawful acts of the salvors, the court below ought to have decreed restitution in value, and given damages to the libellants. 3 Rob. 108. The Der Mohr. Their libel, although it avers an offer to pay salvage, does not preclude them from averring that no salvage is due, nor from claiming damages. The libel contains a prayer for general relief, and the court will pass such a decree as their case, upon proof, deserves, without regard to the specific relief prayed. 3 Dall. 86. 333. 3 Rob. 108. (American ed.)

(a) JOHNSON, J. Do the opposite counsel seriously contend this point?

Van Dyke, for the appellees. We do not think the question importanţ to this case, but we have strong authorities in support of our side of it.








* 352

*But even if the goods are not liable to forfeiture for the improper conduct of the salvors, yet they are not entitled to salvage. By the 52d section of the act before recited, (vol. 4. p. 362.) it is made the duty of the collector, in case of an incomplete entry, to cause the goods to be stored. An incomplete entry of these goods was made, and the revenue officer, Rodney, did no more than his duty in securing the goods. The other persons acted only as his servants or agents. He was paid his daily allowance for his trouble, by the collector. The appellees never had such possession of the goods as entitled them to retain them for salvage. The possession was in the United States, who held a prior lien on them for the duties. Rodney first took possession of them as an officer of the revenue, and held them for the United States, not for the salvors. They never had a rightful possession. The only possession they ever had was under void writs of replevin from the state court, which had no jurisdiction.

The possession upon which the writs of replevin were founded, was at most a possession under a lien for salvage, which is a matter exclusively of admiralty jurisdiction. The writs of replevin being void, they were trespassers in taking possession under them. A tortious act cannot be the foundation of right. They forfeited all right to salvage by resisting the mate and crew; and by the embezzlement of part of the goods saved.

The award does not preclude the libellants from averring that no salvage is due. The arbitration was entered into by mistake. It was supposed by Peisch that he was bound to enter into the reference, by the 7th section of the act of assembly of Delaware, of February 2, 1786. (Delaware Laws, vol. 2. p. 831.) But that law was repealed by the constitution of the United States, which transfers all the admiralty jurisdiction to the courts of the United States exclusively; and by the act of congress, (the judiciary act of 1789,) which provides for the exclusive exercise of that jurisdiction by the district courts.

*Since this act of congress, the state officers have had no right to meddle with property within the admiralty jurisdiction. The question of salvage is exclusively of

admiralty jurisdiction, and belongs to the district court; and every provision of the act of assembly of Delaware upon that subject is entirely repealed. Peisch's assent, therefore, to the arbitration, being founded in a mistake of his rights, was a void act; and the award can derive no validity from his assent. If it derives no validity from his assent it is a mere nullity, for it is the judgment of an incompetent tribunal. The arbitrators could derive no authority from the law of Delaware.

A court which has exclusive jurisdiction of the principal subject, has also jurisdiction of the incidents. The common law courts of the state had no jurisdiction in any shape whatever. 1 Peters, 93. Brevoor v. Ship Fair American. 3 T. R. 343. Smart v. Wolfe.

But even if the act of assembly were in force, the award is not made in conformity with its provisions.

In the first place, no authority can be exercised under that law but by a sheriff, or a justice of peace, or an officer of the customs, and then, only, upon application by the master or owner of the ship. But here, so far from being requested by any person interested in the ship, the salvors drove away the mate and the crew; and, secondly, the persons claiming salvage under that law must have been summoned as salvors.

The salvors have resorted to an incompetent tribunal; they ought to have libelled in the district court, which has exclusive cognisance of the case.

2. But if any salvage was due, the amount decreed is exorbitant. The amount offered was a very liberal compensation for their time, risk and labour. There was no danger. The vessel was all the time within the bay; and they had pilot boats constantly alongside. The cargo was in its nature so bouyant, that the ship could not sink.

*In the case in 19 Viner, 275. only one tenth was given for salvage on the coast. In The Blaireau (ante, vol. 2. p. 240.) only one third was given; and that was a case of great risk and merit. 1 Peters, 10. 37. Mo!loy, b. 5. c. 10.

Broom and Van Dyke, contra.

There are only two questions in this case.

1. Whether the goods are forfeited to the United States; and,









2. Whether the salvage allowed is too high?

1. The inspector had no authority to unlade the ship. No entry had been made, and no permit granted. He could only unlade in the character of a salvor. When the goods were landed, he had a right to direct where they should be deposited until the duties were ascertained, and paid or secured, but his right extended no further. The lien of the salvors was not inconsistent with that of the United States. As to every thing beyond the security of the revenue, the officer was a trustee for the salvors and the owners. He held as much for them as he did for the United States, until he undertook to hold adversely.


The state courts had a right to issue the writs of replevin. Replevin, in Delaware, is a substitute for troIt is the writ by which they try the question of property; and trover will certainly lie against a revenue officer for an illegal seizure. Esp. N. P. 583. Rob. 178. 4 Rob. 160. 188. Burr. 2657.


It is not denied that salvage is a question of admiralty jurisdiction, and that the court of admiralty has also cognisance of incidents; but not exclusive cognisance. It was never so contended in England. The court of admiralty had a hard struggle to get even a concurrent cognisance of incidental questions.

Salvage goods are not liable to duties, nor, if they are, can the goods be forfeited by any act of the salvors. *Such was never the intent of the act of congress. All statutes must have a reasonable construction. Vin. tit. Statute, 519. 1 Bl. Com. 91.

By the revenue laws, goods are liable to forfeiture by landing at any other than a port of delivery, or without permit, or in the night, yet it will not be contended that these provisions apply to goods wrecked and driven on shore. But they are certainly within the letter of the act.

In Courtney v. Bower, cited in 1 Lord Raym. 388. and 501. it is not stated that the goods were intended to be imported, and such is not the ground of decision in Shepherd v. Gosnold, Vaugh. 159. But the true ground of decision is, that the goods were not imported as merchandise, but were driven in by stress of weather; that it was not a voluntary importation. 6 Gwillim's Bac. Abr. 280. Although the words of the Bri

tish navigation act, 12 Car. II. c. 18. are, "imported as merchandise," yet those statutes which use only the word "imported," have received the same construction. Reeve's Law of Shipping, 203. 2 Wils. 257.

The act of congress means a voluntary importation. It is in many respects similar to the British statute.

There is no importation until bulk is broken. Until then there is no forfeiture of the goods, although the vessel depart with them. There is only a penalty of 400 dollars on the master. Collection Law, s. 29. 31, 32, 33. 36. 45. Hallet & Bowne v. Jenks, (ante, vol. 3. p. 219.) The stature of 5 Geo. I. makes stranded goods liable to duty; hence it may be inferred that they would not have been so liable but for the statute. Bac. Abr. tit. Smuggling, 274. Hard. 360. Hargrave's Law Tracts, 215, 225. Reeve, 24. 66. 85. 207, 208. 212. &c. 1 Plowd. 1. Reneger v. Fagossa. Cro. Eliz. 538. Coll. Jurid. 72. 75. 79. Reeve, 200. Reeve, 200. Loft, 200. 1 Hawk. c. 17. s. 83. Raym. 377. The king has no remedy for his subsidy, unless the goods be landed. There must be fraud or negligence. salvors forfeited the goods. If they are trespassers, as *is contended, no act of theirs could forfeit them. must be an act done by the owners, or with their privity, or by some person acting under their authority.

No act of the






In the case of The Blaireau, Judge Winchester decided that salvage goods were not liable to duties; and the decision on that point was not questioned on the appeal.(a)

(a) The counsel for the appellees were permitted in this court to read the following letter from Judge Winchester to Judge Bedford, stating the grounds of that decision.

Shaware, Baltimore County, March 9, 1808.

Dear Sir, It seems that the full statement of the arguments and opinion made by me in the case of duties on wreck and salvage goods, has been lost or mislaid. I can, therefore, only furnish you with the state of the case, the points and authorities.

The ship La Blaireau, on a voyage from the West Indies to France, and wholly owned by foreign subjects, was run down at night by a Spanish ship of war, and abandoned by the crew, who were taken off by the Spanish vessel. The next morning The Blaireau was discovered by the British ship Firm, taken up as a wreck, and salvage; and conducted to the port of Baltimore.

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