This was an action at law, brought by Du Pont, the defendant in error, against Hartranft, collector of customs, to recover $500; that sum being the amount of a penalty unlawfully exacted by Hartranft, as collector, from Du Pont, as the latter alleged. The facts were as follows: The plaintiff resided in Wilmington, Delaware. He was the proprietor of certain powder works at Thompson's Point, upon the Delaware River, across from Chester, Pennsylvania, and distant about two miles. He owned a wooden boat called the Repauno, open except her forward part, which was boarded over. Her dimensions were as follows: Length of water-line, 37 feet; length of keel, 34 feet; which of beam, 8 feet; depth of hold, 3 feet 9 inches; draught of water, 2 feet 1 inch. She had a small engine and boiler, and was used by the plaintiff to transport himself and his superintendent across the Delaware river, between Thompson's Point and Chester. Occasionally the plaintiff used the boat to carry over his workmen,-sometimes as many as nine or ten. When the water was smooth the boat could carry 25 persons. She never carried freight or passengers for hire. She had been inspected, but her papers had expired. When she was seized she was sailing without inspection papers. The plaintiff, to get possession of her again, paid to the defendant, under protest, a penalty of $500, and brought this suit to recover it back.
The jury returned a verdict for the plaintiff for $500, based upon a finding of the foregoing facts, with point of law reserved, which was stated as follows: 'If the court should be of the opinion that a vessel of the size and description, and used as found by the jury, is liable to inspection under the statutes of the United States, the verdict and judgment to be entered for the defendant non obstante veredicto; and if the court should be of the opinion that such a vessel is not liable to such inspection, then the judgment to be entered for the plaintiff on the verdict.' Upon this verdict the court rendered judgment for the plaintiff, whereupon the defendant sued out this writ of error.
The defendant relies on the following provisions of title 52 of the Revised Statutes-'Regulation of Steam-vessels'-to justify the exaction of the penalty:
'Sec. 4399. Every vessel, propelled in whole or in part by steam, shall be deemed a steam-vessel, within the meaning of this title.
'Sec. 4400. All steam-vessels navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, shall be subject to the provisions of this title.'
Section 4418, which provides, among other things, that 'the local inspectors shall also inspect the boilers of all steam-vessels before the same shall be used, and once at least in every year thereafter.'
Section 4421, which provides, in substance, that when the inspection of a steam-vessel is completed, and she and her equipment are approved, a certificate of inspection, verified by the oaths of the inspectors, shall be issued.
'Sec. 4426. The hull and boilers of every ferry-boat, canal-boat, yacht, or other small craft of light character, propelled by steam, shall be inspected under the provisions of this title. Such other provisions of law for the better security of life, as may be applicable to such vessels, shall, by the regulations of the board of supervising inspectors, also be required to be complied with before a certificate of inspection shall be granted; and no such vessel shall be navigated without a licensed engineer and a licensed pilot.'
The seizure in the present case was made under section 4499, which provides: 'If any vessel, propelled in whole or in part by steam, be navigated without complying with the terms of this title, the owner shall be liable to the United States in a penalty of five hundred dollars for each offense, one-half for the use of the informer; for which sum the vessel so navigated shall be liable, and may be seized and proceeded against by way of libel in any district court of the United States having jurisdiction of the offense.'