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way of a foreign port, under a penalty of two hundred dollars for each passenger so transported and landed.” and by section 1 of the same act the following was enacted

a substitute for section 4347, Revised Statutes, as amended by the act of February 15, 1893:

"That no merchandise shall be transported by water under penalty of forfeiture thereof from one port of the United States to another port of the United States, either directly or via a foreign port, or for any part of the voyage, in any other vessel than a vessel of the United States.

The object of the legislation contained in both sections 1 and 2 of the act of February 17, 1898, was fully explained in a communication from the Secretary of the Treasury to the chairman of the Committee on Commerce of the Senate, which was set forth in the report of the House committee (Cong. Rec., 55th Cong. 2d sess., vol. 31, part 2, pp. 1729-1730), and which in part is as follows:

“Section 1 is a stronger and more explicit statement of certain provisions of section 4347 of the Revised Statutes. It is not put in the form of an amendment to that section, as the revisers of the statutes saw fit to incorporate in that section certain legislation based on the treaty of Washington of 1871. The present validity of that legislation has for some years been disputed, and to avoid any legislative declaration on that dispute as a part of this measure, where it is not involved, the first section is drawn independently, though in effect it amends indirectly the other portions of section 4347.

"The essential amendment is in the words for for any part of the voyage. The question has recently been put to the Treasury whether American goods consigned to Alaskan ports from Seattle can be carried in American vessels to Victoria, i distance of only 72 miles, and at Victoria be put on British vessels to be carried to Dyea, a distance of about 900 miles, or to St. Michael, a distance of about 2,000 miles. The Treasury Department has ruled that this is a violation of the laws reserving the coasting trade to American vessels. It is a palpable evasion of those laws, but in some quarters doubt is expressed whether the courts will not decide, as they did in the case of a shipment of a cargo of nails from New York to Antwerp by a foreign vessel, and thence to San Francisco by another foreign vessel, that the law had been successfully evaded, not violated. That decision led to the amendment of Revised Statutes section 4347, by the act of February 15, 1893, prohibiting shipment 'via a foreign port.' That amendment, however, does not, perhaps, fully cover the transaction here referred to. The policy of the United States is to confine carrying by water for the whole voyage between American ports to American vessels. It is believed that section 1 explicitly affirms that policy and removes all doubt.

"Section 2. Section 8 of the act of June 19, 1886, imposes a penalty of only $2 on foreign vessels carrying passengers from one to another American port. This small penalty is wholly inadequate to preserve the coast wise carrying of passengers to American vessels on the long and expensive voyages from the Pacific coast of the United States to Alaska, up the Yukon, etc. The penalty is increased to $200. The penalty for the like offense imposed by the Canadian laws is $400, and I respectfully suggest that the penalty proposed by this section may be increased to that maximum. In cases where this may seem excessive the Secretary of the Treasury has the power to mitigate it."

In further explanation of section 2, it was said in the report of the committee (Cong. Rec., 55th Cong., 2d sess., vol. 31, part 2, p. 1610):

“The charges for landing from San Francisco, for instance, up the Yukon River will be from $200 to $250, and the Canadian vessels would be delighted to pay the United States $2 for every violation of the law and take our passenger trade.

This law is absolutely necessary to enable American vessels to do any of the passenger traffic."

It is apparent from the language of the legislation and the reasons assigned for its enactment that it was intended to apply to domestic commerce, and was not intended to affect commerce between this and foreign countries. This view is in accord with an opinion

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prepared by Acting Attorney-General Jenks and transmitted to the Secretary of the Treasury on September 4, 1886 (18 Op. 445). The facts there under consideration were that a number of passengers were taken on board a foreign vessel at Cleveland, Ohio; they there paid their fare to Windsor, Canada, and after arrival at that port again paid fare to Chicago, to which port they were transported on the same vessel. It was held that, in the spirit of section 8 of the act of June 19, 1886, the voyage was a continuous one and that the act applied. The transportation of the passengers between the ports of Cleveland and Chicago via Windsor, Canada, was clearly domestic commerce, and therefore fell within the terms as well as the spirit of the act.

The primary question now under consideration, therefore, is whether the transportation of passengers from New York on a tour of sight-seeing around the world and to a port in California was domestic commerce, and I: am of the opinion that it was not.

The object of this voyage was the landing of the vessel at numerous foreign ports to enable the passengers to visit various points in different parts of the Old World which are of special interest to tourists, and the return of the passengers to the port in California was a mere incident to this object, and so far as the nature of the commerce was concerned, it was precisely the same as if, after a voyage to Japan, they had been returned over the same route and relanded in New York. If one should take passage on a vessel at New York for Liverpool, and after transacting business in that city should again take passage on the same vessel on its return voyage and be landed in Boston, it certainly would not be insisted that the vessel would be subject to the penalty imposed by the statute; yet in principle no distinction can be seen between such a case and the facts now under consideration.

In one instance the primary object would be to go to Liverpool on business and return to New York via Boston, while in the other, the primary object was to visit various parts of the world on a pleasure tour and then return home via California.

These views are in accord with administrative action in similar cases. In 1902 an assistant secretary of the Treasury held in effect that the act of 1898 applied to a state of facts similar to those here presented, but in 1903 the Secretary of the Treasury directed that action be suspended if tourists landed at American ports, and it is understood that no penalty was thereafter imposed by either the Treasury Department or the Department of Commerce and Labor until the present case arose.

The only judicial construction of the law relating to passengers is apparently the decision in 1904 of the District Court for the Western District of Washington in United States v. The Foreign Steamer Princess Beatrice (unreported), that the steamship was not liable to a penalty for bringing à passenger to Seattle from Victoria, British Columbia, where he had gone from Skagway, Alaska, on another foreign vessel.

I am of opinion, therefore, that the tourists taken around the world on the German steamship Cleveland were not transported and landed in violation of section 8 of the act of June 19, 1886, as amended by the act of February 17, 1898. Respectfully,




Copyrighted books which have been printed from type set within the

United States, and the printing and binding both performed within the limits thereof, may be rebound abroad and imported without vio

lating section 31 of the copyright act of March 4, 1909 (35 Stat. 1082). A book is “produced ” within the meaning of section 31 of the copyright

act when it is printed and bound. Its manufacture is then completed and it becomes entitled to all the protection offered by the copyright laws.

Note.--Opinion of February 28, 1910, to the Secretary of the Navy, will be found on pages 635–644.

59515°— VOL 28--12--14







March 1, 1910. Sir: I have the honor to acknowledge receipt of your communication of the 10th ultimo, in which you request my opinion (1) as to whether copyrighted books which have been printed from type set within the United States, and the printing and binding both performed within the limits thereof, if sent abroad and rebound, are prohibited importations under the provisions of section 31 of the copyright act of March 4, 1909 (35 Stat. 1075), and if so (2) whether such books may be admitted to entry when not more than one copy is imported at one time for individual use and not for sale, under the first exception of subsection (d) of said section 31.

By section 15 of said act it is provided:

“That of the printed book * * all copies accorded protection under this act

shall be printed from type set within the limits of the United States and the printing of the text and binding of the said book shall be performed within the limits of the United States

By section 31 it is provided:

“That during the existence of the American copyright in any book the importation into the United States of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this act

is hereby prohibited.” Manifestly a book is produced within the meaning of said section 31 when it is printed and bound, and the binding required to be done in the United States is the original binding, the one which enters into the original production of the book. When the manufacture of the book is thus completed, it is entitled to all the protection offered by the copyright laws, and it may be exported and thereafter imported at the pleasure of the owner and without any violation of section 31 of the act.

There is, furthermore, nothing in the act to indicate any intention that a book may be deprived of this protection or right of importation when it has once been acquired.




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