UNITED STATES v. CHAIN CABLE, 25 F. Cas. 391

STORY, Circuit Justice. In my judgment the whole point in this cause resolves itself into this; whether the chain cable in controversy was, at the time of its arrival and importation into the United States, bona fide, a part of the equipments and appurtenances of the ship Marathon. If it was, then it is clear to me, that no forfeiture is incurred. If it was not, then the case must be treated as an attempted evasion of the revenue collection act of 1709, c. 128, and the forfeiture consequently attaches.

It appears from the evidence, that the chain cable was purchased at Liverpool, in England, to supply the place of a steam hempen cable of the ship, which had become unseaworthy; and the purchase was made, bona fide, for the use of the ship, and not to sell as merchandise; and it was used for the ship on her arrival at the home port. Now, the question of bona fides was directly put by the learned judge of the district court to the jury, and they have affirmed it by their verdict.

The only ground, then, open to controversy, is, whether the directions given by the court, and the refusal of the instructions prayed by the district attorney at the trial, were correct and justifiable in point of law. I think they were correct and justifiable.

If the chain cable was bona fide purchased, and bona fide an appurtenance of the ship, at the time of the arrival and importation thereof, it is clear, that the owner might lend it and loan it, as he should please, without any permit The provisions of the revenue laws do not require any permit to be given before the landing of any of the ship’s appurtenances or equipments.

If a new sail had been necessarily purchased abroad for the ship’s use, to supply an old sail, worn out. or lost on the voyage, it will scarcely be pretended, that it required a permit in order to be landed, or that though composed of dutiable articles, before it was made up, the sail would, upon the ship’s coming to the home port, be liable to duties.

It is possible, that evasions of the revenue laws may sometimes occur, under color of procuring new sails, or rigging, or equipments of our ships in foreign ports; and thus, the party may escape «from the payment of the proper duties on the articles thus imported, and introduced into the country. But, the defect, if any, is to be cured by legislation, and not by the courts of law.

Until congress shall declare, that the new rigging or equipments of a ship, procured abroad, are dutiable, or not to be landed without a permit, it seems to be difficult to conceive, how courts of justice can treat them as “goods, wares, or merchandise,” within the meaning of the general revenue laws. The “goods, wares, and merchandises,” within the provision of the 50th

section of the revenue collection act of 1799, c. 128, are such only as are 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.

Upon any other construction, not only every sail, rope, yard, or other appendage of the ship, purchased for the immediate use of the ship, and from an obvious necessity, in a foreign port, would be liable to the ordinary duty acts; but even the common tables, chairs, wares, and provisions, for the daily accommodation of the ship and her crew, would fall under the like predicament, and could not be landed without a permit. It is impossible, in my judgment, to contend, successfully, for such a construction of our existing revenue laws.

And yet I know not. how, upon principle, to distinguish between the case put, and the case now at the bar. Upon the whole, my opinion is, that the judgment of the district court ought to be, and hereby is affirmed.