elusion. I am also inclined to the opinion that the evidencB issnfficie:nt to warrant a conclusion that the injury to the libelant's ear was caused by the concussion of the air, produced by the firing of the cannon. The libelant, testifies that from the time the cannon was fired he experienced unpleasant sensations in his ear, and I see no reason to doubt the truth of his statement. This indicates that the abscess which some two weeks afterwards formed in the ear was the result of an injury to the ear caused by the firing of the cannon. No previous difficulty in that organ had been experienced, nor was it otherwise exposed to injury. To the same effect is the medical testimony. That the ship herself is liable to condemnation for the damage so caused I cannot doubt. The cannon was fired by the ,boatswain of the ship, in the ordinary routine of ship's duty. It may not have been necessary to the navigation of the ship to fire the cannon, but firing the cannon was incident to her navigation. It was the ship's notice of her departure with the mail on a voyage to sea. For negligence in ship's work the ship herself is liable. As to the amount to be awarded as damages, let the testimony be taken before a commissioner, and the same reported with his opinion.
THE SCOTIA. 1 UNITED STATES
(District Court, E. D. New York.
ADMIHALTy-VIOI,ATION OF PASSENGER ACT.
The provisions of section 1 of the passenger act of August 2, 1882, cannot be enforCed against the master of a vessel by a civil proceeding in admiralty.
In a proceeding against a vessel; under the passenger act of 1882, to recover a penalty for carrying an excess of passengers, it is not necessary, in order to create a liability on the part of the vessel, to allege and prove that in a criminal proceeding instituted under the statute the' master has been convicted, and a fine imposed upon him equal to the sum Claimed against the vessel.
In Admiralty. On exceptions to libel against the steam-ship Scotia and her master for carrying excess of passengers; j}1. D. Wilber, U. S. Atty., for libelant. R. D. Benedict, for the steam-ship. BENEDICT, J., This case comes before the court upon exceptions to ,the libel. The libel is plainly defective in that it fails to disdose what .statute of the United States is relied upon. This defect may be amended.
, 1 Reported
by Edward G. Benedict, Esq., of the New YorkJ;>ar.
Treatingthe libel' as if, amended by the: first and thirteenth sectIons of the passenger act' of August 2, 1882, as the provisions of statute relied up6n, there remain the thi'rd and fourth exceptions to the libel taken by the master. These exceptions the question whether the provisions of the first section of the act of 1882 can be enforced againstthe nlnster of a vessel byacivil proceeding. The prespnt is a civil proceeding In admiralty , and must, of course; be dismissed as to master if by the statute the acts charged against the master constitute a criminal offense under the statute. On this point it is sufficient to refer to the words of the statute in question, where it is declared that, if the Inaster of the vessel corriinits the acts perecharged, "he shall be guilty of a rilisdemeanor, and fined fifty dollars for each passenger in excess, and may also be imprisoned not exceeding six months." This langtlageistooprecise to permit it to be contended that the' statute can be enforced against the master bya civil proceeding like the present. The exceptions of the master to the libel must therefore be allowed, and tne libel CliSinissed as to him. It remains to be determined, upon the exceptions taken by the owners, whether the libel can be maintained as against the vessel. The libel being taken to aver a carriage by the steam-ship Scotia of 29 passengers in excess of the number allowed to be carried by the first section of the act of 1882, and also to aver that by virtue of the thirteenth section of the act a lien attached to the ship for an amount equal to $50 for each of said passengers, to-wit, the sum of $1,450, the objection is raised by .the claimants' exceptions that the libel is fatally defective, because it omits to set forth that the master of the steam-ship, .bas been tried and convicted for the carrying of such passengers, and in such criminal proceeding fined in the sum of $1,450. While it must be admitted that the language employed in framing the 'thirteenth secti?n of the act is poorly adapted to carry into effect the design indicated, still I incline to the opinion that it can be held sufficient for that purpose. Looking' at the theory upon which the act of 1882 is framed, each section of the act may be taken as a statute by itself. In this the libel is to be taken as framed under the first section, by which section a definite fine of $50 for each passenger in excess is required to be imposed by the court on the master upon his being convicted of having done the acts forbidden. This provision is supplemented by the provision in the thirteentl) section, a provision applicable to all'the sections of the statute, where it is provided "that the amount of the several fines and penalties imposed by any section of this act upon the master of any steam-ship * * *. for any violation of the provisions of this act shall be liens upon sitch vessel, and such vessel may be libeled therefor in any circuit or district court of the United 'States where such'vessel shall arrive or depart" Upon this language it argued that the statute requires allegation and proof of a con'viction of tbe master in a criminal· proceeding and the imposition upon him of a fine equal to the sum claimed to create a liability on the part of the vessel. Btititwill be observed that the statute' does uot speak of
fines imposed by the court.. The words. are, "imposed by any ,section of this act." The intent of the statute is to'create it lien upon the vessel for the amount of any fine permitted by any section of the act to be imposed upon the master ill case of his conviction in aeriminal proceeding. If this be not the true construction, the result would follow that all that. would be necessary to charge the vessel herself would be. to, aver and prove the conviction and sentence of the master. A conviction of the master might be had upon the master's plea of guilty in a proceeding to which the owners would be no party, and under the construction contended for by the owners would render the owners of the ship, through their vessel, liable to a fine without any opportunity on their part to contest the facts. In view of such .a result, I think the statute must be construed as permitting the vessel herself to be proceeded against in admiralty as if personally responsible, subject to be fined upon proof of acts done by her master which are forbidden by the statute, and permit him to be fined when the proceeding is against him. Upon amendment of the libel, as suggested, within 10 days, the exceptions to the libel in behalf of the claimants will be overruled; otherwise they are allowed.
HAMBURG-AMERICAN PACKET CO.l
(District Court, E. D. New York. June 24,1889.)
Libelant is an American citizen, who sues as assignee of the owners of the British ship A., and the action is brought to recover damages caused by a collision in the English channel between the A. and the German steamer B. The steamer has never been in the United States, none of her witnesses are here, and her owner asks the court, on the above facts, to decline to entertain ju. risdiction ofthe action. The owner of the German steamer has been requested, and has refused, to appear in an action instituted against bim in a British court. Held, assuming, but not deciding, that it is competent for a court of admiralty, in its discretion, to decline to entertain jurisdiction of a cause of collision on the high seas where all the parties are foreigners. this cil;se' presents no grounds on which the court should so decline jurisdiction.
In Admiralty. On motion that the court decline to entertain jurisdiction. Goodrich, Deady &; Goodrich and R. D. Benedict, for libelant. Butler, StiUman &; Hubbard, for the Borussia. BENEDICT, J. This is an action brought to recover for damage13 caused to the British ship Astracana, by a collision that occurred in the:British channel between that ship and the steamer Borussia. The ship Astracana was an English vessel, owned by English subjects, and the steamer Borussia was a German vessel, owned by the defendant. The libelant is an American citizen, who sues as assignee of the English owners of the
by Edward G. Benedict, Esq., of the New York bar.