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I, therefore, advise you that you are justified in considering that an agricultural college which offers a proper, substantial course in military tactics complies sufficiently with the requirements as to military tactics in the Act of July 2, 1862, and the other Acts above mentioned, even though the students at that institution are not compelled to take that course.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE INTERIOR.

VESSELS ENTITLED TO ENGAGE IN COASTWISE TRADE

The following classes of vessels may continue to engage in the coastwise trade and merchandise transported on them is not subject to forfeiture:

1. Vessels exempted from the requirements of documentation by section 4385 of the Revised Statutes and the Act of April 18, 1874 (18 Stat. 31);

2. Foreign-built vessels wrecked on the coasts of the United States, when purchased by citizens of the United States and repaired in American shipyards pursuant to the provisions of section 4136 of the Revised Statutes, as reenacted and revised by the Act of February 24, 1915 (38 Stat. 812);

3. Foreign-built vessels forfeited for breach of the laws of the United States and owned by citizens of the United States and which have been documented pursuant to section 4132 of the Revised Statutes, as amended by the Act of August 24, 1912 (37 Stat. 562).

DEPARTMENT OF JUSTICE,
June 30, 1930.

SIR: I have the honor to refer to the letter of January 7, 1930, of the Acting Secretary of Commerce asking my opinion whether the following classes of vessels may engage in the coastwise trade:

1. Vessels exempted from the requirements of documentation by Section 4385 of the Revised Statutes, and the Act of April 18, 1874, c. 110, 18 Stat. 31 (U. S. C., Title 46, secs. 335, 336);

2. Foreign-built vessels wrecked on the coasts of the United States, when purchased by citizens of the United States and repaired in American shipyards pursuant to

Section 4136 of the Revised Statutes, as reenacted and revised by the Act of February 24, 1915, c. 57, 38 Stat. 812 (U. S. C., Title 46, sec. 14);

3. Foreign-built vessels forfeited for breach of the laws of the United States and sold to citizens of the United States, which have been documented pursuant to section 4132 of the Revised Statutes, as amended by the Act of August 24, 1912, c. 390, par. 5, 37 Stat. 562 (U. S. C., Title 46, sec. 11).

You specifically request my opinion whether section 27 of the Merchant Marine Act of June 5, 1920, c. 250, 41 Stat. 988, 999 (U. S. C., Title 46, sec. 883, repeals any or all of the above statutes, under which, so your Department advises me, all three classes of vessels have been permitted and now are permitted to engage in the coastwise trade.

Section 27 of the Merchant Marine Act of 1920 provides: "That no merchandise shall be transported by water, or by land and water, on penalty of forfeiture thereof, between points in the United States, including Districts, Territories, and possessions thereof embraced within the coast wise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel then a vessel built in and documented under the laws of the United States1 and owned by persons who are citizens of the United States, or vessels to which the privilege of engaging in the coastwise trade is extended by sections 18 or 22 of this Act": [with provisos not bearing on the questions under consideration].

A strict, literal construction of section 27 would seem to prevent, under penalty of forfeiture, any merchandise from being carried in the coastwise trade in any vessel not "built in and documented under the laws of the United States " except the foreign-built vessels described in sections 18 and

1 Under section 37 of the Merchant Marine Act of 1920 (U S.. C., Title 46, sec. 888) the term "vessel is defined as including " all water craft and other artificial contrivances of whatever description and at whatever stage of construction, whether on the stocks or launched, which are used or capable of being or are intended to be used as a means of transportation on water." The pbrase "documented under the laws of the United States" is defined to mean "registered, enrolled, or licensed under the laws of the United States."

Vessels in the foreign trade are registered. Those in the domestic or coastwise trade and fisheries are licensed, or if of twenty tons and upwards they are enrolled and licensed. See Maul v. United States, 274 U. S. 501, 503; Anderson v. Pacific Coast S. S. Co., 225 U. S. 187, 199; Badger v. Gutierez, 111 U. S. 734, 735–737; The Mohawk, 3 Wall. 566, 570–571.

22, which do not include any of the vessels as to which my opinion is requested. Nevertheless, neither section 27 nor any other provision of the Act of 1920 expressly repeals any of the statutes in question, although other sections of the Act do repeal and amend numerous other specified statutes relating to domestic and foreign commerce, including certain provisions of the Revised Statutes. The Act contains no provisions specifically relating to the classes of vessels here involved and does not change the then existing laws as to the coastwise trade, unless section 27 has this effect. Because of these considerations and the doctrine that repeals by implication are not favored, it seems clear that section 27 must be construed in connection with the prior statutes relating to registry, enrollment, and license, and, moreover, in light of its legislative history.

Title L of the Revised Statutes, sections 4311-4390, entitled "Regulation of Vessels in Domestic Commerce," prescribes what vessels are permitted to engage in the coastwise trade. Section 4311 (Act of February 18, 1793, c. 8, 1 Stat. 305; U. S. C., Title 46, sec. 251) provides that"vessels of twenty tons and upward, enrolled in pursuance of this Title, and having a license in force, or vessels of less than twenty tons, which, although not enrolled, have a license in force, as required by this Title, and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting-trade or fisheries." (Italics supplied.)

Section 4312 of the Revised Statutes (Act of February 18, 1793, supra; U. S. C., Title 46, sec. 252) provides that in order to be enrolled a vessel

"shall possess the same qualifications, and the same requirements in all respects shall be complied with, as are required before registering a vessel;

*

'Sections 18 and 22 of the Merchants Marine Act of 1920, respectively, extend the privilege of the coastwise trade to (a) foreign-built vessels owned by any corporation in which the United States is a stockholder, or which have been sold, leased, or chartered by the Shipping Board to a citizen of the United States while owned, leased or chartered by such person; and (b) all foreign-built vessels admitted to American registry and owned by United States citizens on February 1, 1920, and all foreign-built vessels owned by the United States at the time of the enactment of the Act when sold to and owned by citizens of the United States.

Section 4132 (Act of December 31, 1792, c. 1, 1 Stat. 287, 288) provides that

"Vessels built within the United States, and belonging wholly to citizens thereof, and vessels which may be captured in war by citizens of the United States, and lawfully condemned as prize, or which may be adjudged to be forfeited for a breach of the laws of the United States, being wholly owned by citizens, and no others, may be registered as directed in this Title."

With this brief background I shall consider separately the three classes of vessels about which you inquire.

1. Vessels exempted from the requirements of documentation.

Section 4385 of the Revised Statutes, Title L (Act of February 18, 1793, supra; U. S. C., Title 46, sec. 335), provides that nothing in Title L " shall be construed to extend to any boat or lighter not being masted, or if masted and not decked, employed in the harbor of any town or city." An Act of April 18, 1874, c. 110, 18 Stat. 31 (U. S. C., Title 46, sec. 336, which does not appear in the Revised Statutes, provides that the Act of February 18, 1793, supra (entitled "An Act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same "), shall not apply to canal boats or boats employed on the internal waters or canals of any State, except such boats as are "provided with sails or propelling machinery of their own adapted to lake or coastwise navigation," and "except such as are employed in trade with the Canadas."

Under these statutes the classes of vessels described therein have been permitted for many years to engage in the coastwise trade without being required to be documented. The use of such vessels in the coastwise trade, in so far as they were owned by American citizens, was wholly unaffected by the provision of section 4347, Title L, of the Revised Statutes that

"No merchandise shall be transported under penalty of forfeiture thereof, from one port of the United States to another port of the United States, in a vessel belonging wholly or in part to a subject of any foreign power."

141183°-32-VOL 36-20

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Section 1 of an Act of February 17, 1898, c. 26, 30 Stat. 248, amended the above provision of section 4347 to read as follows:

"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 phrase "vessel of the United States" is explained by other sections of the Revised Statutes. Under section 4131 (U. S. C., Title 46, sec. 221) " vessels registered pursuant to law, and no others, except such as shall be duly qualified, according to law, for carrying on the coasting trade and fisheries, or one of them, shall be deemed vessels of the United States." Section 4311 (U. S. C., Title 46, sec. 251) declares that only vessels licensed, or enrolled and licensed, under Title L "shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries." These statutory definitions limit the term "vessel of the United States " to vessels documented under the laws of the United States. White's Bank v. Smith, 7 Wall. 646, 655-656; Badger v. Gutierez, 111 U. S. 734, 736; The Alta, 136 Fed. 513, 519 (C. C. A. 9th); 18 Op. 234; Customs Regulations (1923 Ed.), Art. 10.

Accordingly, a literal construction of the Act of February 17, 1898, would seem to prevent, under penalty of forfeiture, any merchandise being carried in the coastwise trade in any of the classes of vessels described in section 4385 of the Revised Statutes and the Act of April 18, 1874, supra. So construed, the effect of the Act of 1898 would have been to exclude from the domestic trade, because undocumented, thousands of vessels, built in the United States and owned by citizens of the United States, which are essential to the orderly movement of our domestic commerce and many of which are useful for no other purpose. This is a result of such far-reaching consequences that the Act should not be

3 Although the Act of February 17, 1898, supra, does not mention section 4347 of the Revised Statutes, it was expressly designed as an amendment to that section. See the letter of February 9, 1898, from the Secretary of the Treasury, in whose Department the bill was prepared, to the Senate Committee on Commerce, explaining the bill. (Cong. Rec., Vol. 31, p. 1729.)

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