U.S. Supreme Court
Oldfield v. Marriott, 51 U.S. 10 How. 146 146 (1850)
Oldfield v. Marriott
51 U.S. (10 How.) 146
The second article of the Treaty between the United States and Portugal, made on 26 August, 1840, 8 Stat. 560, provides as follows, viz.:
"Vessels of the United States of America arriving, either laden or in ballast, in the ports of the Kingdom of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast, in the ports of the United States of America, shall be treated, on their entrance, during their stay, and at their departure, upon the same footing as national vessels coming from the same place, with respect to the duties of tonnage, lighthouse duties, pilotage, port charges, as well as to the fees and perquisites of public officers, and all other duties and charges, of whatever kind or denomination, levied upon vessels of commerce, in the name or to the profit of the government, the local authorities, or any public or private establishment whatever."
This article is confined exclusively to vessels. It does not include cargoes, or make any provision for an indirect trade -- that is, it does not provide for the introduction of articles which are the growth, produce, or manufacture of some third country, into the ports of Portugal in American vessels upon the same terms upon which they are introduced in Portuguese vessels, or the introduction of such articles into the ports of the United States in Portuguese vessels upon the same terms upon which they are introduced in American vessels. These classes of cases are left open to the legislation of each country.
The Tariff Act of Congress, passed on 30 July, 1846, has the following section:
"Schedule I. Exempt from duty Coffee and tea, when imported direct from the place of their growth or production, in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges."
The treaty with Portugal is not one of those referred to in this paragraph.
Consequently, a cargo of coffee imported from Rio Janeiro in a Portuguese vessel was subject to a duty of twenty percent, being the duty upon nonenumerated articles.
An historical account given of the course pursued by the government of the United States, showing that, since the year 1785, it has been constantly endeavoring to persuade other nations to enter into treaties for the mutual and reciprocal abolition of discriminating duties upon commerce in the direct and indirect trade.
This was an action brought by Oldfield against Mariott, who was the collector of the port of Baltimore, to recover back the amount of duties paid under protest upon an importation of coffee in a Portuguese vessel from Rio Janeiro.
On 26 August, 1840, a treaty was made between the United States and Portugal, 8 Stat. 560, the second article of which provided that
"Vessels of the United States of America arriving, either laden or in ballast, in the ports of the Kingdom of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast in the ports of the United States of America, shall be treated, on their entrance, during their stay, and at their departure upon the same footing as national vessels coming from the same place with respect to the duties of tonnage, lighthouse duties, pilotage, port charges, as well as to the fees and perquisites of public officers, and all other duties and charges, of whatever kind
or denomination, levied upon vessels of commerce, in the name or to the profit of the government, the local authorities, or any public or private establishment whatever."
On 30 July, 1846, Congress passed "An act reducing the duty on imports and for other purposes," the third section of which enacted,
"that from and after the first day of December next, there shall be levied, collected, and paid on all goods, wares, and merchandise imported from foreign countries, and not specially provided for in this act, a duty of twenty percentum ad valorem."
In the same act of 1846, was the following section:
"Schedule 1. (Exempt from duty.) Coffee and tea, when imported direct from the place of their growth or production, in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges; coffee, the growth or production of the possessions of the Netherlands, imported from the Netherlands in the same manner."
In the trial of the cause in the circuit court, the following statement of facts was agreed to:
"GRANVILLE S. OLDFIELD v. WILLIAM H. MARRIOTT, Collector of the Port of Baltimore."
"It is agreed and admitted, in the above cause, that the brig Sandade Eterna arrived at the port of Baltimore from Rio Janeiro, in Brazil, with a cargo of coffee, the production and growth of Brazil, on or about 15 November. 1847; that the said brig was, at the time of said arrival and importation of said coffee, a regularly documented vessel of the Kingdom of Portugal, and 1,188 bags of the coffee so imported were consigned to the plaintiff in the above cause, who proceeded, on the 16th of the said month of November, to make an entry of the same as if free of duty, and to obtain a permit, agreeably to such entry, to unload and discharge from said brig the said 1,188 bags of coffee so imported and consigned to him, as appears by the papers herewith filed and marked No. 1 and No. 2."
"[Then followed the import entry, the consignee's oath, and the permit.]"
"It is further admitted and agreed that after the said permit had been given to the plaintiff, but before any portion of the said coffee was unloaded from said brig under said permit, and before the permit was delivered or shown to the inspector of customs of the aforesaid port, in whose charge the said vessel had been placed for custody and delivery of her cargo, the said permit was countermanded by the defendant, as collector as
aforesaid, so far as he could legally countermand it, and the aforesaid entry made of the said coffee by the plaintiff as if the same were free of duty refused, so far as the said collector could refuse, and a claim and charge of duty of twenty percent ad valorem made by the said collector amounting to $2,070.60 against the said coffee, as being due and payable upon the same, under the provisions of Schedule I of the Tariff Act of the United States of 30 July, 1846."
"It is further admitted and agreed, that the said plaintiff wholly denied the legality of the said claim of duty made as aforesaid by the said collector, and protested against the payment of the same, and that only because of his inability to obtain possession of his said coffee without the payment of the said duty so claimed and demanded, and after filing with the said collector a protest and notice, of which the annexed paper, marked No. 3, is a copy, did the said plaintiff pay to the said collector the aforesaid sum of $2,070.60 as a duty upon the said coffee. (Then followed a copy of the protest and notice.)"
"It is further agreed, that a paper herewith filed, and marked No. 4, is a true copy of the decree of the government of Portugal, of which it purports to be a translation and copy, and that the said decree had been in full force from the time of its date, in all the dominions of the Queen of Portugal, until and after the importation of the aforesaid coffee and payment of the duty herein before mentioned."
"No. 4. Decree of the Queen of Portugal"
"(Copy) Treasury Department of State"
"Donna Maria, by the grace of God and the Constitution of the monarchy Queen of Portugal &c., make known to all our subjects that the General Cortes have decreed, and we have sanctioned, the following law:"
"Article 1. The premium of fifteen percent granted by art. 1 of the decree of 16 January, 1837, to articles, merchandise, and manufactures imported in Portuguese vessels, and entered at the custom houses of the Kingdom and adjacent islands, is abolished."
"SEC. 1. Articles, merchandise, and manufactures, coming from countries or ports where the Portuguese flag is not admitted, imported and entered for consumption, shall pay the respective duties, and one-fifth more of the amount of said duties."
"SEC. 2. Articles, merchandise, and manufactures, coming from countries or ports where the Portuguese flag is admitted, and not subjected to differential duties, imported in foreign vessels, not of the country of the production of said articles,
merchandise, and manufactures, and entered for consumption, shall also pay the respective duties, and one fifth more of the amount of said duties."
"SEC. 3. Articles, merchandise, and manufactures, coming from countries or ports where the Portuguese flag may be subjected to differential duties, imported in foreign vessels, and entered for consumption, shall pay the respective duties, and the additional duties which the government is bound to impose on them according to article 8th of the general tariff of duties, organized in conformity to the law of 11 March, 1841."
"Article 2. The provisions of the present law shall commence to take effect three months after its publication, for articles, merchandise, and manufactures which shall be entered in vessels coming from ports in Europe and North America, and six months for all other ports."
"Article 3. All contrary legislation is hereby revoked."
"We therefore order all authorities &c."
"Given at the Palace of Necessidades, 18 October, 1841."
"ANTONIO JOSE D'AVILA"
"Secretary of the Treasury"
"Article 8th of the General Tariff Law referred to"
"A special order of the government shall authorize the collectors to receive an additional duty on goods imported from foreign countries, equivalent to the difference of duties which said nations shall make between their national vessels and those of Portugal, or between Portuguese goods on their importation."
"(And the said decree regulated and controlled within the Kingdom of Portugal the indirect trade between the United States of America and the Kingdom of Portugal at the time of the said importation and demand and payment of said duties, and that, under said decree, coffee and other articles of merchandise the production and growth of Brazil, and imported into any port of the Kingdom of Portugal in vessels of the said United States, were subjected in said Kingdom, by virtue of said decree, to the payment of a discriminating duty of twenty percent upon the amount of duty payable upon the same articles if imported into the Kingdom of Portugal in a Portuguese vessel.)"
"It is agreed that the facts herein stated may be modified and added to in such way as may be thought proper and necessary by the court for a full and correct presentation and decision of the issue in the cause. "
"It is also admitted that the said decree of Portugal is executed in like manner, in reference to all foreign vessels and their cargoes, as in reference to those of the United States."
"It is also admitted that, since the passage of the Tariff Act of 1846, several Portuguese vessels have arrived from Rio de Janeiro in ports of the United States, with cargoes of coffee the growth of Brazil; that such coffee was admitted free of duty, the Secretary of the Treasury not having been consulted in reference thereto, and having given no directions about the same."
"It is further agreed that the court shall render a judgment upon this statement for the plaintiff or for the defendant, according to the views which the court may take of the law of the case, and that either party may prosecute a writ of error from whatsoever judgment may be rendered by the court in this case."
"GEO. M. GILL, for Plaintiff"
"W. L. MARSHALL, for Defendant"
Upon this statement of facts, the circuit court gave judgment for the defendant. Whereupon Oldfield brought the case up to this Court. chanrobles.com-red