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February 1, 1808


THESE cases were appeals from the circuit court for the district of Delaware. Peisch and others, owners of the ship Favourite and her cargo, libelled Ware and others in the district court, for the possession of certain goods, part of that cargo, which the latter had saved from the ship, which had been wrecked in the Delaware Bay.

The cargo consisted principally of wine, brandy, cordials, olive oil, and silks.

On the night of the 26th of October, 1804, the ship Favourite, being at anchor in the Delaware Bay, parted both cables, and was driven on to a shoal. The crew cut away all the masts; in the morning she had drifted over the shoal, but the crew not being able to keep her clear with the pumps, and having eleven and a half feet of water in the hold, they quitted the ship, about 9 o'clock, A. M. and went to Cape May for assistance. On the same morning, about 10 o'clock, the ship was seen from the town of Lewis, a small town on the shore of the state of Delaware, but not a port of entry, by Thomas Rodney, an inspector and surveyor of the revenue who resided at that place. The ship was then drifting out to sea, without masts, anchors, cables, or rudder. He collected a number of men and boats, and went on board the ship, and having towed her on to a shoal called the Shears, they began to discharge the cargo into the boats. Rodney, supposing himself authorised by the wreck law, as it is called, of the state of Delaware, to take the lead in the business of salvage, appointed Ware to superintend the delivery of the cargo from the ship, and went on shore himself, to attend to the landing and storage of the goods saved.

On the 29th of October, the mate with three of the crew returned to the ship in a shallop they had procured at Cape May, with intent, as they said, to save what they could of the cargo. They found the ship in possession of Ware and others, who would not suffer the mate to take any thing out of the ship, except his clothes and those of the crew. The mate then left the ship. There were 48 hands and six boats employed 16 days and 12 nights in saving the goods; besides four flats and seven or eight hands hired occasionally to work in the flats.

On the 7th of November Peisch arrived, and on the 9th offered to pay 4,000 dollars for salvage, which the salvors refused, the goods saved being supposed to be worth about 14,000 dollars, and demanded one-half for salvage. Not being able to agree, the parties supposing themselves bound by the law of Delaware, which requires an arbitration in such cases, referred the rate of salvage to three men, who awarded one-half to the salvors. On the 18th of November, the collector of the district of Delaware arrived at Lewis, and on the 19th the salvors offered themselves ready to secure the duties upon their half of the goods saved, and requested that the amount of duties might be ascertained at Lewis. This the collector refused, and ordered the goods to be sent to Wilmington, a port of entry, to have the duties ascertained; and Rodney delivered them into his possession. The salvors then sued out a writ of replevin from the state curt of Delaware, and took the possession of the goods from the collector, who thereupon seized them as forfeited to the United States for breach of the revenue laws.

The first count of the libel filed by the United States claimed the wine, brandy and cordials, as being forfeited, because they were unaccompanied with such marks and certificates as are required by law, the duties not having been paid or secured.

The second count claims them as forfeited, because they were removed without the consent of the collector, before the quantity and quality of the wines and spirits, and the duties thereon, were ascertained according to law; the duties not having been paid or secured.

The third count claims all the goods forfeited, because they were found concealed, the duties not having been paid or secured.

On this libel by the United States, the district court decreed that the goods were not liable to forfeiture, but were subject to the terms of the decree of the court in the suit respecting salvage, by Peisch and others against Ware and others; which decree was affirmed in the circuit court, and the United States appealed to this court.

Reed, United States attorney for the district of Delaware, contended,

1. That the libellants were entitled to damages against the salvors to the whole amount of the goods saved, because, by the improper acts of the salvors, they have been forfeited to the United States, and so wholly lost to the libellants.

2. That the salvage allowed, if any is due, was too high.

1. The goods are forfeited to the United States, first, under the 43d section of the act of congress regulating the collection of duties on imports and tonnage, vol. 4. p. 350. because found without marks and certificates; second, under the 51st section of the same act, because removed before the proof, quality and quantity thereof were ascertained, and the duties paid or secured; and thirdly, under the 68th section of the same law, because 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 afraudulent omission of duty. Peters' 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. Goznold, Vaughn, 166. was of wreck on shore, not of floating wreck; and the goods saved were not intended for importation. 6 Bac. Ab. 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.*fn1 *

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.)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 on 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 cognizance 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 along side. The cargo was in its nature so buoyant, that the ship could not sink.

In the case in 19th Viner, 257. 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 ...

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