THE OYSTER. POLICE STEAMERS OF MARYLAND.
'Of an eye-bolt, set in the deck, to which it block was attached, and in U$e for the .purpose ·of moving the vessel along the dock. After the bolt broke a latent defect was disclosed below where it was countersunk in the deck. Jamea Troy and John J. Allen,for, libelant. E.B·. :Oonvers, for claimant. BENEDICT, J. The evidence is notBufficient to justify finding asa fact that the condition of the eye-bolt, when it was put to use at the time the plaintiff was injured through its giving way, was such as to inform anyone of the fact that the bolt was already partly br6ken off. . The eye was counter-simk in the deck, and the old break was"below the upper surface of ,the' deck. This location rendered the' defect in truth latent. The use.of an eye-bolt, apparently sufficient, but in reality insufficient ;solely because of a latent defect, entails no liability for damages caused by such defect. . The libel UlUSt be dismissed, with costs.
THll: OYSTER POLICli: STEAMERS OF ·MARYLAND. S.TATES 'V. THE GOVERNOR ROBERT MoLANE. SAME 17. THE GOVEiRNOR HAMILTON. SAME 17. 'rHE GOVERNOR P.F. THOMAS.
(District Oourt, D. Maryland, May 6, 18S1.) belonging to the state of Maryland, and used by its officers'in the enforcement of the state fishery laws, in the Chesapeake bay, toprotect the state oy-ster-beds and fishing rights, and to give relief to vessels in distress, are required by sections 4417 and 4418 to have their boilers and hulls inspected by the United States steam-boat inspectors, and are liable to the penalties prescribed by section 4499 for non-compliance with the provisions of the United States law regulating steam-vessels. (/3rUabU8 by the Court.)
Held, tllat .the
ANDSinPPING-lNSPEOTIOli AND REGULATION OF STEAK-VESSELS.
Thomas G. Hayes, U. S. Dist. Atty. ,and A. Stirling Pennington, Asst. U. S. Dist. Atty., for the United States. CharlesB. Roberts, Atty. Gen. of Maryland, for respondents.
MORRIS, J. The three steam-vessels above mentioned, having been ,seized for navigating the Chesapeake bay without complying with the ternisoftitle 52 of the Vnited States Revised Statutes, regulating steam'Vessels, the!le proceedings-by way of libel were instituted by the United States to enforce the penalties prescribed by sections 4499 and 4500 of ,that The libels allegE) that the were found in the ,years 1885, and 18.86 navigating waters of the United States, which are commOll highways. of commerce, and open to general and competitive
navigation, the CHesapeake bay and its tributaries, without having their' boilers inspected in compliance with section 4418 of the Revised Statutes of the United States; and also without having their hulls inspected in compliance with section 4417. Also that the steamers received on board and transported passengers contrary to section 4424, without having received the certificate of inspection required by section 4421, and required to be exhibited in the manner prescribed by section 4423. These cases have been heard em an agreed statement of facts, by which it is shown that these several steamers are the exclusive property of the state of Maryland" each being, of about .70 tons burden, and carrying officers and crew appointed and paid by the state to the number of about 12 persoosforeach vessel. The steamers were purchased by the 'state under an:.act of the legislature, directing that they should be provided for the use of the state .fishery force, and were used during 1885 and 1886 on the Chesapeake bay and its tributaries, in pursuance of the act of the legislature making it the duty of the proper state officers to use them to enforce the state laws passed for the prutection of the oyster-beds and fishing rights of the state, and to give relief to vessels in distress. They have continuously, (luring 1885 and 1886, for that purnavigated the Chesapeake bay, and its tributaries, within the territorial limi.ts, of the state of Maryland, Itnd not elsewhere; it being agreed, however, that said waters are public waters of the United States, andhighwa.ys of commerce open to competitive navigation. The said steamers have at times carried oth'er persons than the officers and crews, but at no time any fare or compensation been received or demanded of any such person. It is also agreed that the state, by its officers, refused to permit the boilers andhlillls of these vessels to be inspected by the United States steam-boat inspectors, and .that the steamers were not so inspected,' an4 carried no certificate to that effect. 'Title 52 of the Revised Statutes of the United States is entitled "Regulation of Stearii-VesseIE," andhy section 4399 it is. that every vessel, propelled in whole orin part by steam, shall be. deemed a steamvessel within the meaning of the title. By section 4400 it is declared that "all steam-vessels navigating any waters of the United States which are common highways of commerce, or open to general and 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." By section 4426 it is declared that the hull and boilers of every ferry-boat, canal-boat, yacht, or other small craft of like character, propelled by steam, shall be inspected underthe provisions of this title. And by the act of seventh August, 1882, it was provided that all foreign private steam-vessell'l, carrying passengers from the United States to any other country, should be subject to like inspection. The seizures in these present cases were made under section 4499, which declares that "if any vessel, propelled in whole or in part by steam, be navigated without complying with the terms of this title, the owner
THE OYSTER :POLICE STEAMERS OF MARYLAND.
shall be liable to the United States in a penalty of $500 for each offenlOe, 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 libelin any district court of the United States having jurisdiction of the offense.'" . ·,The first contention of the learned counsel on b4(half of the state is that' as in the years 1885 and 1886 a fee of $10 was exacted (Act June 26, 1884) from vessels of 100 tons or under, as compensation for the examinatidnsand inspections made for the year, that the law in effect imposed' 'Ii tax upon an instrument of state government, and is therefore void, so far as it affects such instruments. It· seems obvious from the amount of the fee, and from the express language of the law, that the fee of $10 is solely a compensation for the expense of making the inspection, and that it is a very reasonable charge for tbat service; so that, if the owner of the boat can lawfully be required to submit her to the in.spection, there is no ground to say that the fee is a disguised tax. It is not a tax, and is not in the nature of a tax, so long as it is only a reasonable compensation for a service lawfully rendered. Packet Co. v. St. Louis, 100 U. S. 423; Turner \'. Maryland, 107U. S. 55, 2 Sup. Ct. Rep. 44 . . By the act of congress of June 19, 1886, even this moderate fee has been abolished. 'Next, it'iscontended, on behalf of the state, that as it is conceded that the steamers were never navigated beyond the limits of the state of Mai'yland, and are not used, in commerce of any kind, but are for the use of the state fishery force, to enforce the laws of the state for the protection 'of its oyster-beds and fisheries,that no law of congress requiring the Bteamers to be inspected is within any constitutional power given to congress;'l'he supreme court has interpreted the constitution as having by the commercial clause given to'congress the exclusive power to regulate navigation upon the public waters of the United States, so that all vessels whichna,vigate.those waters, whether engaged in commerce, local or interstate, or for purposes of pleaBure simply, may be alike subjected to the regulations which congress prescribes, with those exceptions only whichcongresB deems it wise to make. It may be impossible to regulate naVigation upon certain of the public waterB and highways of COlDmerce byregulaiing only a JJortion of the vessels navigating them. Rules of navigation, to be of effectual avail for the protection and safety of those vessels which are engaged in commerce with foreign nations and among the states, must control aJso those vessels not engaged in that commerce, which navigate the same waters. It is apparent that the existing legislation,'Of congress, with regard to proceeds upon the assumption that it possesses full power to regulate all vessels navigating pUblic waters of the United States, whether they are engaged in commerce or not. SeeU. B. v. Burlington« H. Co. Ferry Co., 21 Fed. Rep. 332, and the cases cited in that opinion. And it also is apparent that con. gressproceeds upon the theory that proper regulation requires that all ' ssels:in those 'waters shall be aubject to one uniform system.
.' to regulate,commerce !' authol'iie$ appropriate ,legislation rfOlr ,the ,protec-
In the casedf ,The Da'YllidBa7J"lO Wall. 564;it is aaidtMtthe ppwer
tionof eitberinterstate or foreign commerce; and fQrthatpurpose such legislationa8wiIl insure the conveniento.l",safe navigation ofallJ;lavigable waters of the United States, whether that legislation 'coUf3ists in requiring the:rernovalofobstructions.toitheir use, in prescribing .the;form and size of vessela employed upon them, or in subjecting the vessflls to inspection and license in orderto insure their proper construction and equipment." power t6 regulateconimerce," the court said in Gil-man v. Philadelphia,'.3 the control fOl"that purpose, and to the extent necessary,of all nllivigable waters of the United States which are accessible from· a state other than. those ,in,which they lie. For this purpose they are the pUblic property of the nation,and subject to all the raquisite legislation ofoongress." . It is quite obvious that this, supleme and exclusive control of the navigable waters might be defeati:ld,Ol" rendered less effective for its objects., if there were to be recognized a class of vessels privilegEld to use them, without being subject to those, provisions which congress determines .are required for the safety of aU. Iam·r,therefore. unable Wassent to the contention that the fact that the vessels in the present case are not used in commerce, but solely for ithepolice purposes of the fishery force, prevents congress from having the constitutional power to lQgislate with regard to them. It is noHheiruse, but the fact that they navigate the highways of commerce,whichbrings them within. the constitutional . irant of power, and within the: language of section 4400 of the. act of congress. Another ground of defense reIiedupQn on behalf of the state is that the steamers are privileged from seizure because they are the public vessels of a sovereign power, and are used solely as instruments of government.· The exemption of the public property of olie'Sovereign power from arrest by the courts of another rests upon a general usage of nations, founded upon considerations of public comity and convenience. The SantisJsiroo Trinidad,' 7 Wheat. 353. It may be withdrawn or bargained away. By the federal compact, in matters relating to vessels navigating the public waters of the nation, the states have agreed. that the federal alithority shall have supreme and l:lxclusive control; and this implies, of necessity, that no considerations of comity Shall prevent the federal courts from enforcing laws which the federal congress bas deemed it wise to enact in the exercise of this supreme and control, provided they are appJiopriate to the object to be obtained, and not ·obviously beyond the reasonable scope of the powers granted. Sherloc1c v. Alling, 93 U. s. 103., . The exemption from seizure by private suitors;,:bothat common law and in the admiralty, of the proper instruments of government, when not the result of special legislation, is based entirely upon that rule Qf public policy established by the courts, which upon grounds the public welfare and necessity protects from private sequestration property required
THE OYSTER POLICE STEAt1.fERS OF MARYLAND.
for the exercise of governmental powers, either inherent or delegated. But I can £indbut little analogy between this exemption and the claim to be exempt from B: penal forfeiture inflicted by a valid .Jaw enacted by a sovereign power having express power granted to it tomake the law. In the present cases the state and the federal government are exercising au:thority';withinthe same te:tritoriallimits, and their claims in these cases conflict in regard to a matter concerning whi'ch the state has transfetted,hersovklTeigntyto th.e United State8,andwith regard to which she baeagrEledthat. the federal authority shall Htr SUpreme and exclusive. This granted power to enact the law implies the power to make the law effective, and to prescribe and enforce penalties for its infraction· .Althougb,therefore, there. is great force in the argument that these being instrumentalities used by the state for the execution of its proper: governmental powers,should be exempt ftom seizure, it is an argument more prollerly to be addressed to congress than to the court; IHs ba:se(i:1S(jlelyotr8isuppoSed public policy,and Tcan find no justifi·ca..tion .for it-be court declariI1garule of public policy with regard to a rIlattel"inte8pectto which congress has declared the law. ·ltia uige·d that it should be presumed, in favor ofasovereignstate of the Uniofi; that.she will give to her steamers such inspection and attention as willtiebder them safe for those she puts in charge of them, and nowise '4ingerousto engaged in commerce upon the navigable waters within the state. Congress may so declare. Withregs:rd to!the',PublicvesseIBof the United the vessels of other countries, (e':lceept foreign vessels carrying passengers from any port of the United States,-act of February 28, 1871,) it has so declared . With :regal'dtoifoffiignvessels·there wOuld· be hO doubt diffioulty in framing a law susceptible of execution;' congress :rnay well rely upon the inspection generally provided by other nations with regard to their own steam-vessels as sufficient to secure the safety of general navigation. The provisions of the legislation of congress with regard to inspection of the hulls and boilers of steam-vessels are intended, not alone for the protection of those on board the vessel itself, but for the protection of all other persons and property engaged in navigation, which might in any way be subject to damage from any accident which might happen for want of that attention to safety which the inspection enforces. It was said by the supreme court in the case Qf The Repauno, (Hartranft v. DuPont, 118 U. S. 226,6 Sup. Ct. Rep. 1188:) "The law was passed "also to protect the lives and property of persons ill other boats and at the wharves. If< . . . . The people in other boats, who passed her on the water, or those who stood on the docks where she landed, were entitled to the same protection which the law provided against the explosion of the boilers of larger craft." It is, of course, quite within the power of congress to exempt the veasels of the state of Maryland from inspection if they deem it wisest to do so; but I have not found it' possible for the court to so construe the law, as it at present stands; and in considering the questiol}. of an exemption, because of the general rule of public policy in obedience to
which courts exempt instruments of government from seizure, it should borne in mind that the same rule, so applied; would exempt the property and instruments' used by cities and oounties, such municipal corporations being themselves mere instrumentalities of the state for the convenient administration of local government. Meriwether v. Garrett, 102 U. 8.511; Klein v. New Orleans j 99 U. S.149;TMFiqelity,16 Blatchf. 569; The ProtectQr,20 Fed. Rep ·.207. The result of that rule, so applied, would therefore be that no penalty could be enforced for re" fusal to submit to inspeotion. any of the numerous stellmpolice. boata, fire extinguishing steamers, relief-boats, ice-boats, and other steam-vessels used by the large seaboard citiesjand they woull;! ply among the vessels in crowded ports, and lie at the docks among. other shipping, free from supervision ,of any kind prescribed ,by congressional ments. The question of. pUblic policy would therefore not be so nano,", a one as might seem upon first impression. .. With regard to the alleged violations of the sectionsspe,cially appli., cable to steamers carrying passengers ,or merchandise, I do not find that.· these steamers are liable. They n.ever carry either passengers or mElr" chandise for hire, and if persons or property, not required' for the public service in which these vessels are intended to beemploY'ed, ar:e by· the allowance of those in charge of them sometimes carried, it is no,t by the authority of the state, and not for compensation, and not within. th& purpose for which they. are maintained. The sections relating to. ing passengers and mercl1andise are applicabletoa.steam-,vessel solely because ofthe use to which she is applied, and I do nQtfind that theso vessels are so used. I will sign a decree, for the penalties for failure to have the hulls boilers inspected in the years 1885 and ' 1 8 8 6 , . , .