make a gun-boat of her. It is possible that, when converted into .. 1;l1nboat at Samana, this vessel may be dispatched thence upon some hostile cruise. But for acts done in the port of SamanaincollDectiol'tdth this vessel the government of that country, not the government of the 1Jnited States; is responsible. I am not aware that the governmu:it of the United States has undertaken to guaranty the discharge by thu Dominican republic of its obligationR of neutrality as regards the contending factions of Hayti, and feel confident that the statute under consideration cOl1tains no provisions that can be resorted to for the proteetion of any prince, ,state, colony, district, or people against any such appre.hended violation of its neutral obligations by the government of the Dominican republic. It seems certain that a suspicion entertained by . those who fitted out this vessel in New York that the government of the Dominican republic upon receipt of the vessel in Samana would conclude to violate its neutral obligations is not sufficient to jUlstify a finding that .the acts done by such persons in New York in fitting out the vessel were done with that intent, which, under the stMute, is the gist of the offense. ' For these reasons the libel must be dismissed!
UNITED STATES ,t1. THE SIDONIAN·
. (Circuit Court, B. D. Luuuiana. March 2, 1889.)
MAmTIMlIl LmNs-PENALTIES FOR VIOLATION OF "PASSENGER ACT."
The" passenger act" of 1882, (22 U. S. St. 186,) tables and seatl to be provided for the use of passenA"ers at regular meals. and for violation declares that the'master shall be deemed guilty of a misdemeanor, and sha:lI be fined notptore tpan $500, and be imprisoned not more than six months. By section 13the amount of the several fines and penalties imposed by the act on the master are liens upon the vessel, which may be libeled therefor. Held, that until a fine has been imposed on the master in a criminal prosecution for failure to provide tables and seats, a libel for such fine cannot be maintained. ·
Libel filed by the United States against the Sidonian, for by the..master of the act of 1882 known liS the "Passenger Act," (22 U. S. St. 186,) in not providing tables and seats for the use of emipassengers, at their meals. It is sought to enforce as a lien against
IAn appeal was,tl\ken by the United States frQm the above deoision, which appeal was afterwards ordered discontinued by the attorney general of the United States, on the·:flrst ground taken by the above deoision, i. e., that as the United States had reoognized neither of the Haytian faotiolll! as belligerents, this action oould not be maintainedj I!Jld the Conserva was therOupoD released from oustody, and sailed on Maroh l?l11SlI, for Saroana. [l!oBP. ' .
lIt Admiralty. ;,
the vesselthe amount ofthefine which the government alleges has 'been incurred by the act of the master. An filed is to the effect that the action was prematurely brought, because there can be no lien for a fine imposed under the statute, until there has: been a conviction. and the fine has been imposed in a criminal In the district court the exception was sustained, and the suit dismissed. Libelants appeal. Charlea ParLonge, U. S. Dist. Atty. Horace E. Upron, for claimant.
PARDEE, J. In this case 1 have carefully considered all the authorities cited by the proctors, and some cases not upon either brief. The result -is that I concur in the conclusion reached by the judge of tbe district court. The fourth section of the passenger act of 1882 provides that "for every willful violation of any of the provisions of tbis section the master of the vessel shall be deemed guilty of a misdemeanor, and shall be fined not more than $500, and be imprisoned for a term not exceeding six months. " The tbirteenth section of the same act provides "that the amount of the several fines and penalties imposed by any seetion of' this 'act upon the master of any steam-ship or other vessel carrying or bringing immigrant passengers, or passengers other than cabin for any violation of the provisions of this act, shall be liens upon such vessel, and such vessel may be libeled therefor in any cirouit or district court of the United States where such vessel shall arrive or depart."The libel in tbis case is brought to recover the fine, which is a part of the penalty imposed by section 4 of the said act. The first question that occurs in the case is, what is the amount of suchfine? It is not a sufficient answer to l;lay,that the amount of the fine is in the discretion of the judge, and that it can be determined in asuit in admiralty aawell as ina prosecution for the offense. The law having declared the offense to be a misdemeanor, and imposed as. a penalty therefor both fine and imprisonment, in the discretion of the court, it would Seenl that the amount of the fine can only be determined by the court seized of jurisdiction to try the offense, and on the trial and -conviction of the offender. In The Palm.yra. 12 Wheat. 1, it was held that "where tbere is a forfeiture for acts done which attaches solely in rem, or where there is both a forfeiture in rem and a personal penalty, the practice has been, and the law is, thattbe proceeding in rem stands independent of, and wholly unaffected by, any in perBOnam.." The case of The Missouri, 3 Ben. 508, was an action where the owner and master were made subject to a penalty for a violation of the revenue laws, and tbe statute provided that "in every such case the master, or any ·other person having the charge or command of such ship or ves.qel, shall forfeit and pay a sum of money equal to the value of such goods, not included in such manifest;" and further provided that" in any case where a vessel, or her owner, or master, or manager shall be- subject to a penalty fora violation onhe revenue laws of the United States, such vesselsball be holden for the payment of such penalty, and may be
seized arid proceeded against summarily by libel to recover .such penaltyin any district court of the United States having jurisdiction of the Here it will be· seen that the vessel wa.s made primarily liable for the penalty,' and the same was. one which could have been recovered ol'dinary action for debt·. ':Dhe same may be said of the cases .of TM Queen, 4 Ben. 238, and of The Helvetia, 6 Ben. 51. The. cases of The Missouri, 4 Ben. 410, 9 Blatchf. 433, and The Queen, 11 Blatchf. 416,. are affirmations by the circuit court of the decisions rendered in the respective cases of The Missouri and The Queen, in the district court., . The case of The Snowdrop, 30 Fed. Rep. 79, was a case similar on the point iIi qliestion to that of The Missouri, supra. . The case of Pollock v. The Sea Bird, 3 Fed. Rep. 513, was brought under section 4465 of the Revised Statutes, which provides that "it shall not be lawful to take on board. of any steamer at greater number of passengers than is stated in. the certificate of inspection, and for· every violation of thisprqvisi<:>n the master or owner sp,all be liable to any person suing for the same, to forfeit the amount of passage money, and $10 for each passenger, beyond the number allowE'd;" and tinder section 4469 of the Revise<iStatutes, which imposed by section 4465.shall be a lien upon provides that "the the vessel in each case;" and it was decided that the United States was not a necessary party to the suit instituted under and that the Ianguageofsection 4469 gave a diJ:ect remedy .inaPmiralty against the vessel for the recovery or the penalty. The suit brought was by l;ln informer, and the court,' following the decillions in. the cases of The Mis. lOuri and The Queen, supra, held that suit WIllS well brought. It is to be noticed the suit was one for which an action ·of debt would lie, and that the amount of the penalty was fixed and .determined by the statute. The case of Navigation Co. v"U.S., Taney, 418, was a. Sllit brought by an informer against a vessel on the ground that she hadforfeited the sumiof $500 becauseher.boilel'sand. machinery had not been examined ,within'six months, as required by the act()f congress July 7, 1838, the penalty 'being that" the owner or owners ofanid vessel shflll forfeit and pay to the United States the sum of $500,,..-one-half for. the Use of the informer,-and for which sum or sums the steam-boat or vessel so engaged shall be liable, and may be seized and proceeded against summarily rbyway of libel in any district court of the United States havingjurisdiction'<ofthe oftenseJ?',and. the eleventhl;lection of the act provided that "the penalties impoaedby this act sued for 'covered in the name. of the United States in the district Or qircuit court of such district or circuit where .the oft'ense shall have been committed, or forfeiture'incol'red, or in which the owner or master afsaid, veflsel. may ·reside,-one.halfto the use oHhe informer, and the other to the use of 'the United States; or the said penalty may be prosecuted for by indic.tmentia either of the said courts." The decree in the district court was that the owners.forfeit and pay:the sumof$500,ll-nd thaMhesteam-boat be sold, and the proceeds brought. into oourt,: to. pay the said forfeiture and costs;ther611idue; if any;. to be subject to .thefuture ord.er of the court.. Inde¢ding the ·casecon'appeal Chief Justice'TANl\lY said:
... A penalty of $500 cannot be recovered from in an admiralty proceeding by libel. The'mode of proceeding in order to recover tbe penalty· from tbem is by snit or indictment.. proceeded in according to the forms of the common law. This· is the mode of proceeding provic:led for in theeleventb section of the Iaw of congress', and in the form adopted by the district attorney. No judgment or decree for the penalty can be obtained against the owners pf the boat. The decree of the district.court is erroneO\lS, therefore. in this reo spect; bnt, so far as it directs the sale of the Tessel, the decree is correct,for the penalty for which the boat is liable may be recovered by a proceeding in rem against her without any proceeding against· the owners, or any deeree against them. The case of l'M Palmyra, 12 Wheat. 14, is conclusive On tll·is point." It will be noticed with regard to this case that the penalty sued for was one which might have been recovered in an action of debt j and, fur. ther, that, by the terms of the act, the steam-boat or vessel was made primarily liable, and that authority was given to seize the said vessel, and proceed against it summarily by way of libel. From these cases, it would seem clear that w,here there isa forfeiture for acts done which attaches solely in rem, or where there is both a for. feiture in rem and a personal penalty, or where a penalty is imposed upon a master or owner of a vellsel for acts done or omitted by the owner or master, and the same is made allen upon the ship, and is one that can be recovered in an action of debt, that the. practice has been, and the law is, that the proceeding in rem stands independent of and unaffected by any proceeding in perS011atn. In none of these cases, howeve..., has it ]:)een held that, where a statute provides that any acts done or omitted to. be done by the master of. a vessel shall be a misdemeanor punishable by either fine or imprisonment, and the veSllel is made secondarily, and not primarily, liable for the amount of any penalty incurred, a court of admiralty may enforce such secondary liability by a proceeding in without reference to the trial and conviction of the offender. 'rhe case of The C'andace;1 Low. 126, was a case under the passenger act of 1855, and seems to bear directly upon the point involved in the case In hand. The first section of the said act provided as a penalty for its violation: IIEvery'sucb master shall be deemed guilty of a misdemeanor, and,upon conviction therefor hefore any circuit or district court of the United States. shall, for' each passenger taken on board beyond the limit aforesaid or the ipace afdresaid, be lined in the sum of $50, and may also be imprisoned. at the discretion of the' judge before whom the perialtyshall be recovered, not exCeeding six months." . The sixth section of the said act provided that.. Any captain or master of any such ship or vessel who shall. willfully fail to furnish and distribute such provisions, cooked as aforesaid, shall be deemed guilty of a misdemeanor, and, upon conviction the1\e£or, before any circuit or district court of the United States, shall be lined not more than $1,000. and sball be for a ·term not exceeding one year." Th,ta. eighth section of the act provided that__ viQlationofthethird, fourth, or fifth sections oUhe act. that the pay master and owner or owners of any such
FEDERAL REPORTER,. vol.
to the United States tbesllnl of $200:·for each and every \':folation of, or neglectto conform to, tbe provisions of each of said sections, and $50 for each and every violation or neglect of any of the provisions of the seventh section j the same to be recovered by suit in any circuit or district court of the United States within the jurisdiction of which the said vessel may arrive, or from which she may be about to depart; or at any place within the jurisdiction of said courts, wherever the owner or owners or captain of such vessel may be found." , '" And the fifteenth section of the act provided that"The amount of the several penalties imposed by the foregoing provisions the carriage of passengers in merchant vessp]s, shall be liens on the vessel tlr vessels violating those provisions. and such vessel or vessels shall be libeled therefor inany circuit or district court of the United States where such vessel or vessels shaH arrive." The case before Judge LOWEI,L was one for the violation of the first section of the act. In deciding the case, the judge said: "It is clear that the fifteenth section gives a rig-ht of action against the vessel itself, as well as against the master and owners person\llly, to recover these sums or any of them; .. .. .. but to apply the fifteenth. section to the fines which may be imposed upon the master when convicted of a misdemeanor un· der the first or sixth sections is more difficult. In the first place. the penalty is, or may be, partly imprisonment By the sixth section, for willfu] failure to supply or distribute provisions, the master must be both fined and imprisoned; and both are discretionary with the court, within certain limits, and both together are spoken of as a penalty; but it is a penalty which could not be enforced against a vessel. The case, as. applied to the first section. is not ao free from doubt. Here the fine is a fixed amount, and could be ascertained before conViction', aod is called a 'penalty,' and whether there shall be any imprisonment for a violation of tbissection is discretionary with the judge; but, if imprisonment is imposed, it is certain that both that and the fine are but one penalty for· one misderneanol', and no doubt they would have been so termed in this section if the context them to be mentioned togethel,", as it does .in the sixth section. It seems, therefoi'e, that penalty ,to be recovered against the vessel. imposed by this s,ection is not of a But., even if we could separate the pUnIshment. and consider 'the fine by itself, as the' amount of the penalty 'referred to in the fifteenth section, there would be great difficulties and objections remaining. Suppose this fine to be recovered of the vessel in the first instance, how could the mastEjr. on his trial certainly, for it for the misdemeanor, avail himself of the fact? 1fot. in isneitber an acqUittal nora conViction; nor does it.goto the whole of bis or, suppose the master tried and l;tcquitted, how could that judgment avail the owners olthe vesselin.a civil suit.for the penalty? Agail1' a lien is commonly, if not always, a security for a civil debt 01; responsibility, including civil forfeitares under the revenue laws.. To bold a lien over tbe I,Jroperty of a wrong-doer as securityfor a fine which may be imposed upon him, after con viction of the offense, is unusual, and would not often be useful, because the defendant always stands committed until his tine is paid, and this is the highest security known to the law for any pecuniary liability; but that such a fine should be slled for before it,is imposed. and against the goods of a third person. is surely without precedent. Again, it is to be. observed that what I have called the' civil penalties' of sections two and eight may be recovered by a personal action as well as by pl;oceedings against the ship, and are imposed upon ·the owners as well as the master; but the fines of the first and sixth sections are impOSEd upon the master only, and are to. be recovered
only by ind'ictment, and no allusion is made in these two sections to anyothel' remedy. nor toa proceeding in the district where the vessel may be found. When. thprefore. 1 consider the kind of penalty mentioned in the first section, which may be partly imprisonment, the person upon whom it is imposed being the master only, the mode of its enform-ment by a criminal trial and sentence, the absence of allusion to any responsibility of the owner or vessel, in all which respects it differs from the mere pecuniary civil penalties imposed by the other sections; and further, that the ordinary office of a lien is to be security for a debt or civil liability, and the great difficulty of applying it, in fact, in aid of the criminal responsibility of a third person, and find that there are in the statute many civil ppcuniary forfeitures or penalties to which the fifteenth spction, giVing these lipns. is properly and exactly applicable, and that to the only and other criminal penalty mentioned in the act it cannot possibly be applied before conviction of the master, because the amount is not fixed until then,-I am constrained to conclude that it does not give II lien upon the vessel for the fines which may be imposed upon him for a violation of the first section of the act." By the passenger act of 1882 a violation of the first section on the part of the master is declared "a misdemeanor;" for any violations of the provisions of the second section" the master of the vessel shall be liable to a fine of $5 for each carried or brought on the vessel;" for any violation of any of the provisions of the third section "the master of the vessel shall be liable to a penalty not exceeding $250;" for every willful violation of any of the provisions of the fourth section "the master of the vessel shall be deemed guilty ofa misdemeanor, and shall be fined not more than $500, and be imprisoned for a term not exceeding six months;" for a violation of any of the provisions of the fifth section "the master shall be liable to a penalty not exceeding $250;" for any violation of the provisions of the sixth section "the master of the vessel shall be liable to a penalty not exceeding $250;" for a violation of the provisions of the seventh section" the master shall be deemed guilty ofa misdemeanor, and shall be fined not more than $100;" for a violation of the provisions of the eighth section "the master of the vessel shall be deemed guilty of a misdemeanor. and shall be fined not ing $1,000, and shall be imprisoned for a period not exceeding qne year;" for the violation of any of the provisions of the ninth section "the master of the vessel shall be liable to a fine nut exceeding $1,000;" for violation of the provisions of the tenth section" the master or consignees of any vessel shall be liable to a penalty of $50;" and for a violation of the provisions of the twelfth section "the master shall be deemed guilty of a misdemeanor, and may be fined not exceeding $1,000, and be imprisoned not exceeding one year, and the vessel shall be liable to seizure and forfeiture." From this it is seen that the act provides for penalties which, in some instances, Can be recovered against the master in an action of debt, and in other instances can only be recovered from the master in a proceeding by indictmentjand in one instance, in addition that the vessel to the penalties imposed upon the master, it is shall be liable to seizure aild forfeiture. The lien on the vessel for .the amount of the several fines and penalties imposed by any section of the act and given by the thirteenth section may apply to all the pecuniary
penaltits imposed in the aot; e:xceptthe penalty 'imposed by the twelfth sectioIl,where forfeiture Of is added to the penalty imposed on ,the bUt, if it doesio made primarilY " be that under the practice as approved by t4e acljudged<l8SeS the, lien for all tpose penalties against the master that are simply pecuniary forfeitures recoverable in an action of debt mll.y be enforced inaproceeeding in 'rem., regardless of any action in per8d'Tiam, it is cleartHil.Cl1hy: lien whichtilay exist for the fines that maybe ,imposed on the master for those violations of the law declared to be enforced until after the amount thereof shall be determilled by the proper court, in a criminal proceeding against the master. If the master does not owe, the vessel does not owe. To determine whether or not the master owes a fine for a misdemeanor, there must be criminal prosecution wherein the aecused may have the verdict of a jury. A decree will be entered in this case dismiesingthe libel.
THE HUDSON CITY.· BUSH v.' THE HUDSON CITY.
(District Court, E. lJ. Ne1JJ York. March 18, 1889.)
A started out of her slip on a very dark night. at a time when a passing car·t1.0at rendered it impossible for the pilot to see. before he started, whether his course was clear, whereby collision ensued with libelant's sail· ing vessel. which was coming up from below outside of the car·float. Held, that thefel'/.'y·boat was to blame for starting under such circumstances, when a delay ota moment would have avoided the collision.
In Admiralty. Action for damages for collisiQn. Alexander & A8h, for libelant. Biddle & Ward, for claimant.
BENEDICT, J. In this case the evidence shows that the ferry-boat Hudson City, in a very dark night, started out from her pier in the North river upon one of her regular trips, just at a time when a large loaded with cars was passing out from the slip below in such a direction as to shut off the river below from the pilot's view. The pilot commenced his trip upon the assumption that no vessel was in the way, but the moment the car-float passed out he saw the light of the libelant's sailing vessel, bound up the river from below. He at once stopped and backed, but it was too late, and the libelant's vessel was sunk. Upon
'Reported by Edward G. Benedict, Esq., of the New York bar.