1871, upon consideration of the act of February 10, 1871, out of which section 2793 grew, the department wrote to the collector at Chicago as follows: "Section 25 of the act approved July 14, 1870, exempts from the payment of tonnage tax all vessels belonging to any citizen of the United States trading from one port or point within the United States to another port or point within the United States, and joint resolution of Congress, approved February 10, 1871, also exempts from tonnage tax enrolled and licensed vessels in the coasting trade, although touching during the voyage at intermediate foreign ports. Under this law, it is the port to which a vessel clears by which it is determined whether she is or is not liable to pay tonnage tax. The rule, therefore, to be observed in the collection of this tax on vessels trading on the northern, northeastern, and northwestern frontiers of the United States is determined by the certificate of clearance on the manifest of the vessel as required by the act of July 1, 1870, and not by the destination of her cargo. If she clears direct to a foreign port, as did the Kate Darley for Fort Colburne, Ontario, on the 4th instant, the tonnage tax must be collected." (Synopsis of Treasury Decisions, 1871; Decision 828, p. 20.) Again, on May 23, 1883, the Treasury Department ruled: "TREASURY DEPARTMENT, "May 23, 1883. "SIR: Your letter of the 7th instant was duly received, transmitting the protest and appeal of Frank McGuire, master of the schooner Penokee, against the exaction of a tonnage tax of $94.70 on her arrival at your port on the 30th ultimo, from Toronto, Canada. "You transmit the clearance certificate of the Penokee, which bears date November 24, 1882, and under the seal of the custom-house at that port allows the master to proceed to your port. The manifest to which it is attached. shows the shipment of 630 tons of coal for Toronto and its unlading at that port, and the shipment thence to your port of 12,000 bushels of wheat, which was unladen at Oswego. on the 30th ultimo. "You infer that the voyage of the Penokee was concluded on the discharge of her entire manifested cargo at Toronto in November last and her clearance thence, so late as the 29th ultimo, with her cargo of wheat. You base your action on department decisions 2333 and 5311. The first of these decisions ruled that on a voyage between domestic ports on the northern frontiers the discharge of an entire cargo from an American vessel at a port intermediate to the ports of departure and destination closed the trip, because it entailed a new clearance. But no such rule holds when the clearance of such a vessel is from one domestic port to another and she discharges her entire cargo at an intermediate foreign port. The law has conceded the privilege to our vessels in the northern lakes of clearing from one domestic port to another, with the privilege of touching at an intermediate foreign port. Having granted that privilege, it has not authorized customs officers to inquire into the motives of a master in taking a clearance to another domestic port, nor limited the time to be spent on the voyage, nor made any regulation as to the cargo to be taken on, or discharged at, any intermediate foreign port. "The collector at the home port of ultimate arrival of a domestic vessel that has touched at an intermediate foreign port needs to inquire only into the genuineness of the clearance, and, if that be right, he need not worry himself that the master has evaded the payment of a tonnage tax which he could not have escaped had he cleared directly to a foreign port. The same view, substantially, was taken in decision 2858, of June 14, 1876, and though the department approves of your effort to enforce what seemed to you the spirit and purpose of the law, it must direct the forwarding of a certified statement in order to a refund of the tax collected. "The two manifests of the cargoes of the Penokee are herewith returned. "Very respectfully, "H. F. FRENCH, (Synopsis of Treasury Decisions, 1883; Decision 5728, pp. 256, 257.) Article 303 of the Customs Regulations of 1874 (pp. 150, 151), provides: "Vessels enrolled and licensed for trade in the waters of the northern frontiers, clearing direct to a foreign port, must pay tonnage tax; but if such vessels clear from a port in one collection district for a port in another collection district and complete the voyage to the port of destination, they are not required to pay tonnage tax, although, during the voyage they may touch at intermediate foreign ports. and receive on board dutiable goods and import the same into the United States." This regulation is repeated without substantial change in article 284 of the General Regulations under the Customs, 1884 (p. 129); article 284, Customs Regulations, 1899 (p. 85); and article 174, Customs Regulations, 1908 (p. 99). All these things show that a vessel touches at an intermediate port, within the statute under consideration, when it goes there for delivering or receiving cargo. 2. Does the fact that the Holden carried no cargo or passengers from Cleveland, Ohio, to Two Harbors, Mich., take her out of section 2793? Such a view must rest upon an interpretation of the statutory words "engaged in the foreign and coasting trade on the northern, northeastern, and northwestern frontiers of the United States" as demanding that some cargo or some passenger be actually carried on the particular voyage between the American ports of departure and destination as well as between one or the other of the American ports and the intermediate foreign port. Such interpretation I consider untenable; and it is also contrary to the Treasury Department's decision of May 23, 1883, already quoted. The relation of section 2793 to section 2 of the act of February 10, 1871, as a mere revision of the latter, will indicate quite decisively that the clause of section 2793 'engaged in the foreign and coasting trade on the northern, northeastern, and northwestern frontiers of the United States" adds nothing to the substantive requirements of the section, but serves merely the ends of limiting the benefits of the section to enrolled and licensed vessels on the stated frontiers and of further describing the character of the enrolled and licensed vessels on the waters of those frontiers. It makes no requirement, beyond what the rest of the section prescribes, concerning the incidents of the particular voyage. The precursor of section 2793 in the act of February 10, 1871, read: "And provided further, That enrolled or licensed vessels departing from or arriving at a port in one collection district to or from a port in another collection district, and also touching at intermediate foreign ports, shall not thereby become liable to the payment of entry and clearance fees, or tonnage tax, as if from or to foreign ports; but such. vessels shall, notwithstanding, be required to enter and clear." (16 Stat., 596.) This language, it will be noticed, extended to enrolled or licensed vessels anywhere; but the section containing the language was an addition to the seventh section of the act of July 1, 1870, regulating, according to its title and terms, "the foreign and coasting trade on the northern, northeastern and northwestern frontiers of the United States." Doubtless, therefore, the quoted language of the act of 1871 itself applied only to vessels on the northern, northeastern, and northwestern frontiers; but, whether so or not, it was necessary, if the revision in section 2793 of the second section of the act of February 10, 1871, was to be restricted to vessels on the northern, northeastern, and northwestern frontiers of the United States, that just such a clause as we are discussing "engaged in the foreign and coasting trade on the northern, northeastern, and northwestern frontiers of the United States"-should be added to the language taken over from the second section of the act of 1871. We have here a plain and adequate explanation of the statutory clause about engagement in trade on the northern frontiers. Without that clause, section 2793 would be applicable to enrolled or licensed vessels anywhere. The clause was essential to restrict the geographical application of section 2793 in the same way as the original section of the act of February 10, 1871, was restricted by the general structure of the act to which it was appended. It is not to be supposed, when we have another adequate explanation, that the new clause put into section 2793 was meant to alter the essential character of the original statute. Section 2 of the act of February 10, 1871, as we have seen, required only that the vessel be enrolled or licensed; that it travel between American ports in different collection districts; and that it touch at an intermediate foreign port. Section 2793 must not be construed to require more, as the newly added clause has another explanation. The view that the statutory clause about engagement in foreign and domestic trade requires that at least some freight or at least one passenger be carried between the American ports of departure and destination would also lead to a practical absurdity. Clearly one barrel of freight or a single passenger would suffice. The operation of the statute can not depend upon such a trifle. Also, if some freight or some passenger must be carried between the American ports of beginning and ending the voyage, in order to put the vessel at the time into coasting trade, then equally the statute must require that the vessel carry on the particular voyage some freight or some passenger to or from the intermediate foreign port in order to put the vessel into foreign trade. It can not be, however, that a vessel carrying a cargo from Cleveland to Two Harbors and stopping intermediately at Fort William, Canada, but not taking cargo to or from Fort William, would be outside of this statute. She might have gone to Fort William for the very purpose of getting some cargo there, and met with disappointment. The result of having a cargo entirely domestic makes the case all the stronger for giving the vessel the benefit of the statute, notwithstanding her stop at a foreign port. I therefore reply to your inquiry that the steamer Holden, under the circumstances stated by you, was within the provisions of section 2793 of the Revised Statutes. Respectfully, Approved: LLOYD W. BOWERS, Solicitor-General. GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR. |