May 13, 1935
IN RE THE PUEBLOS; THE MONALOLA; THE CHOCTOWS
After the opinion was handed down on the foregoing appeal, we allowed the claimant to put in evidence the licenses under which the libeled vessels were operated and permitted briefs to be filed and a reargument to be made by both parties. Upon the record now before us we find that the licenses were not in fact for fishing, but for the coasting trade. In the upper right-hand corner of each of the licenses there is a blank entitled "Service" which was filled in with the word "Fishing," but each document states: "License is hereby granted for the said vessel to be employed in carrying on the Coasting Trade for one year from the date hereof and no longer."
While it may be entirely proper and is customary for the Department of Commerce to require in the licenses which it grants a designation of the intended activities of all vessels under enrollment and license, the statute prescribing the forms of licenses covers only vessels engaged in the "coasting trade" on the one hand, and in "fisheries," consisting of "whale fishery," "mackerel fishery," or "cod fishery," on the other. 46 U.S.C. § 263 (45 USCA § 263).
Vessels engaged in whale, mackerel, or cod fishing are not strictly speaking engaged in either coasting or foreign trade, for, while they sail to waters far from our coasts, they do not trade in and out of foreign ports. Accordingly the statute has prescribed special licenses for such vessels. 46 U.S.C. § 263 (46 USCA § 263).
In view of the form of the licenses now before us, we cannot regard them as limited to the kinds of fishing to which the statute relates, that is, to "whale," "mackerel," or "cod fishing." The words "service fishing" appearing in the corner of each instrument did no more than designate the proposed activities of the licensed vessels and in our opinion, did not curtail the words "Coasting Trade" appearing in the body of the licenses. The vessels were licensed broadly for the coasting trade and could carry any merchandise in that trade so long as it was not in itself unlawful.
In view of the licenses submitted on the rehearing and the arguments now adduced, we can no longer regard our decision in The Gander (C.C.A) 54 F.2d 505, as governing the case. So far as that decision was based on a license identical in form with those now before us, it can only be sustained because the vessel there was carrying contraband liquor and the Prohibition Amendment was not then repealed.
Upon the record as augmented by the licenses that have been submitted the decrees of the District Court are affirmed.
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