THE AMERICAN Law Journal and Miscellany. No. III. Supreme Court of the United States. FEBRUARY TERM, 1808. Peisch et al. v. Ware et al. and The United States v. the Cargo of the Ship Favourite. FORFEITURE. WRECK. COLLECTION OF DUTIES. SALVAGE. The section of the act of congress for the collection of duties,* which creates a forfeiture of goods not marked nor accompanied by certificates does not comprehend wrecked goods, nor those found on board of a vessel deserted by her crew, and in such a situation as to render it necessary to land them on the nearest accessible part of the coast. Nor will the landing of goods under such circumstances without a permit subject them to forfeiture, because a forfeiture can only be applied to cases in which the means that are prescribed for the prevention of a forfeiture may be employed. The same rule applies to the removal of the goods from the wharf after they are landed.‡ MARSHALL C. J. In these causes two questions are to be decided by the court. 1st. Is the cargo of the ship Favourite or any part of it forfeited to the United States? 2d. Are Ware and others entitled to any, and if to any, to what salvage? * [Act of 2d March 1799. 4 L. U. S. 279. Vide sect. 43.] The first count in the first libel filed on the part of the United States claims the brandies, wines and teas therein mentioned, in consequence of their being found in the possession of certain persons therein named, unaccompanied with such marks and certificates as are required by law, the duties thereon not having been paid or secured to be paid. The second count claims them as forfeited, because they were removed without the consent of the collector, before the quality and quantity of the said wines and spirits, and duties on the said teas were ascertained according to law, the duties thereon not having been paid or secured. The third count claims them because they were found concealed, the duties not having been paid or secured according to law. The second libel claims certain other goods which were parcel of the cargo of the Favourite as forfeited by being found unlawfully concealed, the duties thereon not having been paid or secured. The facts of the case are these: The ship Favourite, belonging to Mr. Peisch of Philadelphia, was discovered about the last of October adrift in the bay of Delaware, deserted by her captain and crew, with her masts gone by the board and without anchor, cables or rudder, and in danger of being carried out to sea. A company was formed to save the vessel and cargo. With considerable labour, in the course of several days, the cargo was unladen and landed at Lewis, a small town on the bay, not a port of delivery, where it was with the approbation of the collector left under the care and in the custody of a revenue officer residing at that place, who was one of the party that had originally taken possession of the vessel, and under whose direction the whole business had been in a great measure conducted. On the third of November, while the salvors were unlading the vessel and landing the cargo, an imperfect entry was made by the owners or consignees, after which an award was made between the owners and salvors, by which the salvors were allowed one half the cargo. The owners were dissatisfied with this award and refused to acquiesce in it. The collector ordered the goods, which had been in the custody of a revenue officer, to be carried to Wilmington, for the purpose of ascertaining the amount of duties. The salvors objected to this and requested that the duties might be ascertained at Lewis, offering at the same time to pay the duties on the moiety of the cargo claimed by them under the award. The collector persisting in his determination to remove the goods to Wilmington, the salvors sued out a writ of replevin from the state court, and by force of that writ took the goods out of the possession of the revenue officer. This act is the foundation of the forfeiture alleged in the libels. The forfeiture said to be occasioned by the goods being found without the marks and certificates required by law depends on the 43d section of the act for collecting duties, and on other sections of the same act which are explanatory of the 43d section. The particular clause giving the forfeiture is in these words," and if any casks, chests, vessels or cases containing distilled spirits, wines or teas, which by the foregoing provisions ought to be marked and accompanied with certificates, shall be found in possession of any person, unaccompanied with such marks and certificates, it shall be presumptive evidence that the same are liable to forfeiture." The law then authorizes a seizure and subjects such distilled spirits, &c. to forfeiture, unless it be proved at the trial that they were imported according to law, and that the duties were paid or secured. The objects of this clause are those vessels only, which by the foregoing provisions ought to be marked and accompanied with certificates. To determine its extent the "foregoing provisions" must be looked into. The subject is first taken up in the 37th section of the act. That section directs particular and additional entries to be made of distilled spirits, wines and teas, which provisions are adapted to regular importation, not to those articles when saved from a wreck. The entry is to be made by the importer or consignee, and specifications are required which can only be given by the |