1925 A. M. C.

It is apparent that the Captain of the Zeehond, Krans, knew of the movements of Goeyens, because the latter first went to an address at 121 West 123 St., New York City. The Coast Guard took from the possession of Krans a paper referring to Goeyens which reads in part: "In case you should have to go in any harbour, advise me by cable. Goeyens 121 West 123rd Street, New York, giving location and if any needs. You should cruise on Cholera Banks, within a radius of 3 to 4 miles. Don't let any one on board. I will come and look for you every day, up from October 22, 1923, except when the water conditions are unpractical. I will call in the day time." Leveque and Goeyens located and visited the Zeehond, going out by launch from Freeport, L. I. on December 2nd. There is much more in the record, which need not be set forth here, which clearly establishes that it was the purpose to set the cargo ashore on Long Island. On December 7th, Captain Scott of the Seminole hailed the Zeehond off Fire Island and Captain Krans of the latter replied that he was bound to Halifax. Scott took the Zeehond into New York where she was boarded by Customs Guards Lynch and McAdam. In reply to their questions, Goeyens said the Zeehond was proceeding to Montauk Point, Long Island, for water, and Krans stated that she was bound for the Port of New York.

The question to be determined is-Do these facts constitute an "attempted fraud " within the language of Section 592 of the Tariff Act of 1922. That section so far as applicable, reads as follows:

"That if any person enters or introduces or attempts to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever or is guilty of any wilful act or omission by means whereof the United States is or may be deprived of the lawful duties or any portion thereof, embraced or referred to in such invoice, declaration, affidavit, letter, paper, or statement, or affected by such act or omission, such merchandise shall be subject to forfeiture. The arrival within the territorial limits of the United States of any merchandise consigned for sale and remaining the property of the shipper or consignor, and the acceptance of a false or fraudulent invoice thereof by the consignee or the agent of the consignor, or the existence of any

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other facts constituting an attempted fraud, shall be deemed, for the purposes of this paragraph to be an attempt to enter such merchandise notwithstanding no actual entry has been made or offered.”

I have no hesitation in holding that the foregoing acts constitute an "attempted fraud," within the meaning of Section 592 supra. I do not believe that the boat was in distress when apprehended, after a careful consideration of the evidence upon which I base my opinion.

It appears that the master and members of the crew were indicted upon a charge of conspiracy, tried and acquitted. The claimant contends that the action at bar is res adjudicata by this acquittal, citing Coffey vs. U. S., 116 U. S. 436. In that case there was only one defendant in the criminal prosecution. He was the only claimant in the seizure proceeding brought by the Government and the issues were identical. In the case at bar the claimant is Krans. In the criminal prosecution Krans was but one of several defendants. Thus there was not the identity of parties which must appear in order to sucessfully maintain the defense of res adjudicata. In addition, under the criminal prosecution one law was alleged to have been violated, the National Prohibition Act; in the case now before the Court, the Government asserts a violation of the Tariff Act, thus involving different issues.

In this Circuit the recent case of Henry L. Marshall, 1923 A. M. C. 1035, 292 Fed. 486, is abundant authority for forfeiting a cargo taken under such circumstances as are here revealed.

There will be a decree of forfeiture entered with appropriate provision for a stay if a review hereof is desired.

MARJORIE E. BACHMAN.

UNITED STATES

vs.

SCHOONER MARJORIE E. BACHMAN.

District Court of the United States, District of Massachusetts, Feb. 27, 1925. INTOXICATING LIQUOR-122. Foreign Vessels-13. Treaty Between U. S. and Great Britain.

When twenty-one miles from land a Canadian schooner delivered twenty-five cases of liquor to a sea-sled which had been sent out by the United States Coast Guard and was capable of making thirty-five miles per hour. Subsequently the schooner was seized by a Revenue Cutter and was brought to Boston.

1925 A. M. C. Held: The seizure was illegal, as such a transaction was not within the purpose and intent of the treaty between the United States and Great Britain of May 22, 1924, and the vessel was not subject to forfeiture. HAROLD P. WILLIAMS, U. S. District Attorney, LAURENCE CURTIS 2D, Special Asst., for United States.

WILLIAM H. LEWIS and M. M. MCGRATH, for Schr. Marjorie E. Bachman. MORTON, D. J.:

These are three libels brought by the United States, (1) for the forfeiture of the schooner Marjorie E. Bachman, (2) for the forfeiture of her cargo of liquor, and (3) for penalties against her. The case was heard in open court. Most of the essential facts are not seriously in dispute.

The Bachman is a Canadian schooner, having a Canadian registry and crew. She was chartered to one Green on a time charter to carry liquor to the high seas adjoining the coast of this country with the expectation that it would there be discharged into small boats not connected with the schooner and smuggled ashore. The charter provides that the movements of the schooner should be under the general direction of Green. The Bachman secured a cargo of liquor from a vessel at sea and at St. Pierre Miquelon. She then proceeded to this coast and anchored near the Stellwagen Bank, 21.2 miles from the nearest land. Communications passed between the schooner and Green, who was in Gloucester or Boston; and liquor was delivered over her side to small boats which he sent or caused to be sent to her. This had been going on for ten days or two weeks before the seizure.

The seizure was made by the Revenue Cutter Tampa at 7.40 a. m. on October 24, 1924, at the location above stated under the following circumstances: The United States Coast Guard brought around from New London, Connecticut, a very fast sea-sled capable of making thirty-five to forty miles an hour. A disguised crew was placed on this boat and it was sent to the Bachman to make a purchase of liquor. When the sea-sled came alongside the Bachman and asked to purchase liquor, an inquiry was made as to her speed. The government agent in charge replied that the speed was only fifteen miles, which he knew was false. The Bachman thereupon sold and delivered overside to the sea-sled twenty-five cases of liquor. Under the conditions then existing the sea-sled was capable of making the distance to land within an hour. After receiving the liquor she did not proceed to

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land, but went to the Cutter Tampa, which was on the high seas nearer Boston. Most of the liquor was thrown overboard as soon as the Bachman was out of sight. The rest remained on the sea-sled until she was towed into Boston by the Tampa two or three days later. This is the only purchase relied upon by the United States as making the vessel subject to forfeiture; it was conceived and carried out from start to finish by officers of the United States. There is nothing to suggest that the Bachman had ever before dealt with boats capable of making the distance to shore within an hour or that those in charge of her had any intention of dealing with such boats. The officers on the sea-sled had no intention of taking the liquor which they bought ashore in her; they meant to go, as they did go, to the Tampa which was not within territorial limits of the United States. Nor did the officers intend to introduce the liquor into this country in any unlawful way. The men on the Bachman by whom the sale was made supposed that the liquor was to be smuggled into this country by a boat not able to make the distance to land within one hour.

After the seizure a prize crew was put on the schooner; her own crew were taken off and sent on board the Tampa; she was left at anchor where she lay for two or three days in charge of the prize crew; and she was then towed into Boston by the Cutter Tampa. The evidence satisfies me that during this interval there was gross misconduct on the part of the prize crew. Many articles belonging to the Bachman's crew which had been left on board were stolen; a number of cases of wines and liquors were opened and drunk or thrown away; a large amount of the Bachman's food supply was used up. There is testimony from several witnesses, persons who were arrested when they came to the Bachman for liquor, that most or all of the prize crew were drunk. These stories are no doubt exaggerated, but the details with which some of them are told leaves no doubt that there is a considerable substratum of truth in them. It was the duty of the officers, having seized the vessel, to send her with her crew on board promptly to the nearest port. Instead, this vessel, with her master and crew removed and her open hold full of liquor, was held at anchor for two days during which she was freely visited by the officers and men of the Coast Guard Service.

After the Bachman had been brought into the port of Boston, her crew were again placed on board her and were kept prisoners there. The following day counsel for them and for the vessel endeavored to

1925 A. M. C.

see them but was not permitted to do so. The master and crew were taken to the custom house and put through an examination by an assistant United States attorney, in the absence of their counsel and in the presence of half a dozen officials, several of them officers of the Coast Guard force. They were then, still in custody, taken to the United States commissioner's office and there arraigned on criminal charges against them. A transcript of the statements of the master, Ritcey, on this examination was offered in evidence on the hearing of this case; and I excluded it as having been coercively and improperly obtained.

Two questions are presented: (1) whether the schooner was rightfully seized; and (2) whether she has committed any offence against the laws of the United States warranting her condemnation and forfeiture.

As to (1); There is no statute of the United States authorizing seizure of foreign vessels more than twelve miles from our coasts. The government's right to seize the Bachman is rested, as it must be, solely upon the provisions of the treaty between this country and Great Britain, proclaimed May 22, 1924. The claimants dispute that the treaty gave any such right. The provisions of it pertinent to this case are found in article II. This article provides in substance, (1) that Great Britain will raise no objection to visitation and search of her private vessels by our officers on the high seas; (2) "If there is reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States, its territories or possessions, prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its territories or possessions, for adjudication in accordance with such laws"; and (3) "The rights conferred by this article shall not be exercised at a greater distance from the coast of the United States, its territories or possessions, than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense. In cases, however, in which the liquor is intended to be conveyed to the United States, its territories or possessions, by a vessel other than the one boarded and searched, it shall be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the distance from the coast at which the right under this article can be exercised."

I have previously had occasion to consider the rights of hovering