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PEISCH V. WARE, 8 U. S. 347 (1808)

U.S. Supreme Court

Peisch v. Ware, 8 U.S. 4 Cranch 347 347 (1808)

Peisch v. Ware

8 U.S. (4 Cranch) 347


Wine and spirits saved from a wreck and landed are not liable to forfeiture because unaccompanied with such marks and certificates as are required by law, nor because they were removed without the consent of the collector before the quantity and quality were ascertained and the duties paid.

The award of arbitrators appointed under a mutual mistake of both parties, in supposing themselves bound by law to submit the matter in dispute to arbitration is not obligatory.

The owner of goods cannot forfeit them by an act done without his consent or connivance or that of some person employed or trusted by him.

One-half allowed for salvage in the Delaware Bay.

These cases were appeals from the Circuit Court for the District of Delaware. Peisch and others, owners of the ship Favourite and her cargo, libeled 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 26 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 authorized by the wreck law, as it is called, of the State of Delaware, to take the lead in the business of salvage,

Page 8 U. S. 348

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 29 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 anything 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 7 November, Peisch arrived, and on the 9th offered to pay $4,000 for salvage, which the salvors refused, the goods saved being supposed to be worth about $14,000, 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 18 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.

Page 8 U. S. 349

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.

Page 8 U. S. 358

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